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HomeMy WebLinkAbout01-2945 FX MAY 1 7 2001 EST ATE OF FREDERlCK D. RIFE, by and through its Executor CARL R. PROBST, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW M,F. ROCKEY MOVING COMPANY, and: No, 0/- t!)9~ M.F. ROCKEY STORAGE COMPANY, Defendants CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, a copy of which is attached to the complaint filed in this action, I appear for the defendant and confess judgment in ejectment in favor of plaintiff and against the defendant M.F. Rockey Moving Company for possession of the real property described as follows: the premises located at 2240 Gettysburg Road, Camp Hill, Pennsylvania, consisting of a cement block office and warehouse buildiug and the surrounding yard area. McNEES, WALLACE & NURICK BY ~~11 ~ Sharon R axton LD, No. 58852 Kimberly M. Colonna LD, No. 80362 100 Pine Street P.O, Box 1166 Harrisburg, PA 17018-1166 (717) 237-5278 Attorneys for Defendant Dated: May 15,2001 ',-~' ~ -- - ,..., i "'I'r, '! I!' . - . ' " i__ "'-""-~', ~ ~ .".,.,; ,..~",""""I~"l""~" ""__ .. ,-, ~-~~ """""" 0 C' r' c:: '~J s: "1 ""'OCG :E: nlLp ;;;:-tio Z_, -< ~~': (" .., ~C:) "'0 ~CI )3:Q 1'0 '- ;; '::;> =< 0) .~ "._"....,...' ., '" ~_.~'''''',Jl!."'?'''''' ",!"""lI!I'11.11f.1~l!:'f'W!mHW~'y~,~"?,:W~;'1"":')f'''_ii'!r"HlY~f'~~lfi!iN[~1e:'1jjI!~Wj1~%iI~~~~i~~ ESTATE OF FREDERlCKD, RIFE, by and through its Executor CARL R. PROBST, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW M.F. ROCKEY MOVING COMPANY, and: No,OI-?.qlj) M.F, ROCKEY STORAGE COMPANY, Defendants CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, a copy of which is attached to the complaint filed in this action, I appear for the defendant and confess judgment in ejectment in favor of plaintiff and against the defendant M.F. Rockey Storage Company for possession of the real property described as follows: the premises located at 2240 Gettysburg Road, Camp Hill, Pennsylvania, consisting of a cement block office and warehouse building and the surrounding yard area. McNEES, WALLACE & NURICK BY~~. t~ Sharon R. Paxton LD, No. 58852 Kimberly M, Colonna LD, No. 80362 100 Pine Street, P,O, Box 1166 Harrisburg, PA 17018-1166 (717) 232-8000 Attorneys for Defendant Dated: May 15, 2001 " . "", '~',~~,"'I"""., PC" , ., '"1 ~" ~ (-Cj>! -, l?'V"'~I:Jl'lL ~'~~ ^-~, ,,~~''''^ ~~ ~. ~ ',- ", "",,, ~,,"""'~""' r~-'~""~Yf(JfJ!JJ~&g1rt1Jr~;;;1;:8f\'t'jfllr:~''ttlri!r'""''',.p~:::[r"':'''''''''''{Uif!~r~:'rn:[''''ij11:~'~';!, 0 c;\ c..:-.::: C ~ -'"I v B~; ,:Jt rn :r;:J> ~ -( " - ~, ~;. z , . co C ;-:! -< ) !:== t~~, () ,- :g .. , ~[, (") )>c: /'0-) '-.) t;'1 ~- ':':;) ~ =< (-#) =< ~~~ ,~ ,,,,,,,,,"..:!II".~li1~~ffiji,i~",,,,\ryq,""";;f?"~":)':\"''Y;'_-;l!'''')::.1~\<'W!!!~~JW~flli'l'!:~Wl"\P.m'~tp,l~Jffl,'m'll€1~~l'j'l~il !. . MAY 1 720D1fIJ ESTATE OF FREDERICK D. RIFE, by and threugh its Executor CARL R PROBST, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW M.F, ROCKEY MOVING COMPANY, and: No, or ';;'9'(,5' I!../v) M,F, ROCKEY STORAGE COMPANY, Defendants RULE TO SHOW CAUSE .,' AND NOW, this IJ... day of May 2001, a Rule to Show Cause is issued upon Defendants, M,F, Rockey Moving Company and M.F. Rockey Storage Company, as to why judgment in ejectment should not be entered in the above captioned matter. Rule returnable within ~~a.:,~:r~..:~S ~ d.6=Ur&1 )~ J. ;J * .,,",- "~ . '" _,'f ~ '''' ~" "'T'I r ."." , I',r ','- ~ ~ , ~~',- ," J , ~iNb'iP /llNnO'i r,(~SNNJ I '"C ',1"''''';-'0,_ G ~'- ,"-' f":J_:Jt:;:I1/n_ 'i.,(t:) -" ,~U :r7'!I" q ;II " f (:; ~ t/.l.l f. b J~ .f '~1 Uj -" ~ -M",', "~,,', --,~ ,,"<, ,,>>--. -' "^'" '-~"-"%~-'-T-"l]rli1l"",,-"-'@'JtfT~~fl~lr',:'Ttki'~r"fh4r:ru'#~JTY.~_~M' . " " ~" 1lQlrl_ ' lOil"L~~'II'!ll~,!,!~..,<~~," ___~~~_"1!'~~}""""~'i')nPM"~;"'"?"'~',",-ll!'t~i'<>:W;::~~~l!ffi';",~w~U;y,~jW:WM~~M~:~~~1!Mf . ESTATE OF FREDERICK D, RIFE, by and through its Executor CARL R. PROBST, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CNIL ACTION - LAW M.F. ROCKEY MOVING COMPANY, and: No. M,F, ROCKEY STORAGE COMPANY, Defendants ORDER GRANTING LEAVE TO ENTER JUDGMENT AND NOW, this _ day of 2001, Defendants having failed to show cause why judgment in ejectment should not be granted, the Court hereby enters this order granting judgment in ejectment against Defendants M.F. Rockey Moving Company and M.P. Rockey Storage Company, in the above-captioned matter. J, """'-~ ,~~ " -"J - ,,- ,~-, , I~I'" I ~ . ESTATE OF FREDERICK D. RIFE, by and through its Executor CARL R PROBST, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff M.F, ROCKEY MOVING COMPANY, and: M,F, ROCKEY STORAGE COMPANY, CIVIL ACTION - LAW No, 01- ;1'?<lJ.- CwJ ~ Defendants COMPLAINT L Plaintiff is the Estate of Frederick D. Rife, by and through its executor, Carl R Probst 2. Defendants M,F, Rockey Moving Company and M,F, Rockey Storage Company are Pennsylvania Corporations with their principal place of business in Lower Allen Township, Cumberland County, Pennsylvania, 3. On May 1, 1976, Pauline N. Rife, individually and as Executrix of the Estate of Robert F, Rife, and M,F, Rockey Moving Company entered a lease agreement (the "Moving Company Lease"). A true and correct copy of the Moving Company Lease is attached hereto as Exhibit A 4. The Moving Company Lease provided that M,F, Rockey Moving Company would lease, on a month to month basis, a portion of the premises located at 2240 Gettysburg Road, Camp Hill, Pennsylvania. See Exhibit A 5, Also on May 1, 1976, Pauline N. Rife, individually and as Executrix of the Estate of Robert F. Rife, and M.F, Rockey Storage Company entered into a lease agreement (the ;-~ r '-" ,'--J "," I-I .' 1-" r" - ',' , "Storage Company Lease"), A true and correct copy ofthe Storage Company Lease is attached hereto Exhibit B. 6, The Storage Company Lease provided that M,F, Rockey Storage Company would lease, on a month to month basis, a portion of the premises located at 2240 Gettysburg Road, Camp Hill, Pennsylvania. 7. Together the two portions of property subject to the Moving Company Lease and the Storage Company Lease constitute the entire property located at 2240 Gettysburg Road, Camp Hill, Pennsylvania, which consists of a cement block office and warehouse building, together with the surronnding yard area, 8, Pursuant to a deed dated October 4, 1999, Frederick D. Rife, became the legal owner of the property located at 2240 Gettysburg Road, Camp Hill, Pennsylvania, 9, On or about August 28, 2000, Frederick D, Rife died. 10, Pursuant to Letters Testamentary issued by the Register of Wills of Cumberland Connty, Carl R. Probst was named executor and personal representative of the Estate of Frederick D. Rife, 11, The Moving Company Lease and the Storage Company Lease contain identical provisions in which the Lessees promised "to quit and deliver up" the premises "peaceably and quietly" at the end of the lease term, 12, On or about March 28,2001, a Notice to Quit was personally served upon M.F. Rockey Moving Company and M,F. Rockey Storage Company, which advised them that they must quit the premises located at 2240 Gettysburg Road, Camp Hill, Pennsylvania, on or before 2 -"""1l1~ ., r,,_ -'~-1.' r~ . ,- '. I'I~ ~- I": April 30, 2001. A true and correct copy ofthe Notice to Quit and Affidavit of Service are attached hereto as Exhibit C. 13. To date, neither M.F, Rockey Moving Company nor M.F. Rockey Storage Company has quit the premises. 14, By failing to quit the premises pursuant to the Notice to Quit, M.F. Rockey Moving Company and M.F. Rockey Storage Company have broken the covenants contained in the leases, 15, The Moving Company Lease and the Storage Company Lease contain identical provisions defining as a default, any violation of the lease covenants. The provisions provides as follows: In the event, LESSEE shall. .. violate or shall fail to perform, or otherwise break any ofthe covenants of this Agreement, after fifteen (15) days written notice, '" any of the same shall be deemed a default and breach of this lease and thereupon LESSOR may terminate the term herein let in the manner as provided herein, See Exhibits A and B. 16, The Moving Company Lease and the Storage Company Lease contain identical warranty of attorney provisions which provide in relevant part: Likewise, upon default, when this lease shall be determine by condition broken, during the original terms ofthis lease or thereafter and also when, as soon as the term herein created shall have expired, it shall be lawful for any attorney as attorney for the LESSEE to file an agreement for entering in any competent Court an amicable action for judgment in ejectment against LESSEE and all persons claiming under LESSEE for recovery by LESSOR of possession of the herein demised premises, for which this lease shall be his sufficient warrant, whereupon if LESSOR so desires, a writ of possession may issue forthwith without prior writ or proceedings whatsoever. , ,. 3 ;"'11>0 " __' '-7"l~-'" ' '""'-1"'1"1'-' ,. "-' I i- ~ ~~"" In any amicable action of ejectment and/or for rent in arrears, LESSOR shall first cause to be filed in such action an affidavit to be made by it or someone acting for it setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence, and if a true copy of this lease be filed in such action, it shall not be necessary to file the original as a warrant of attorney, any rule of court, custom or practice to the contrary notwithstanding. In any amicable action of ejectment and/or rent in arrears, the LESSEE expressly agrees that any judgment, order or decree entered against it by any competent court by virtue of the power of attorney contained in this lease shall be final, the LESSEE expressly waiving the benefit of all laws now or hereafter in force exempting goods from distraint, levy and sale, and any errors in proceedings which may occur thereunder. See Exhibits A and B. 17. The Affidavit of Carl R Probst, executor of the Estate of Frederick D, Rife, which affidavit sets forth the facts necessary to authorize the entry of judgment, is attached hereto as Exhibit D. 18. Judgment is not being entered against a natural person in connection with a residential lease. 19. Judgment has not been entered upon either the Moving Company Lease or the Storage Company Lease in any jurisdiction, 20. Because the instruments which contain the warrant of attorney and confession of judgment are more than twenty years old, Plaintiff hereby applies for a court order to grant leave to enter judgment after notice in accordance with Pa. R Civ. P. 2952(a)(9). A rule to show cause to provide notice to Defendants is attached. 4 "~', '=. ~,''''..,~r' -',:z,~, "',,_ " 1'1 ,- ~-'~-, - -';, ' :"r WHEREFORE, the Estate of Frederick D. Rife, by and through its Executor Carl R. Probst, demands judgment in ejectment against M.F. Rockey Moving Company and M,F, Rockey Storage Company. McNEES, WALLACE & NURICK By ~.~to~ LD, No, 58852 Kimberly M, Colonna LD. No. 80362 100 Pine Street P,O, Box 1166 Harrisburg,PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff Dated: May 15,2001 5 '^T' r .. ~I '!' c". .-1 r I- - '~'-1, VERIFICATION Subject to the penalties of 18 Pa, C.S.A. S 4904, relating to unsworn falsification to authorities, I hereby certiJY that I am the Executor of the Estate of Frederick D, Rife, that I am authorized to make this verification on its behalf, that I have reviewed the foregoing and that the facts set forth therein are true and correct to the best of my knowledge, information and belief. ESTATE OF FREDERICK D, RIFE By~R,f~ Carl R Probst, Executor Dated: 511',,\\0\ ''''!' ~ ~ ,_.'~'V ' f' -~ - I"'~-I' -r~"-- I I' ], ~~ !II >- n: 'Q~ ~2;~: ~~~~:.;: , , E!:- EE;-'- -"" i'':', \i\'l'r" 0011 LC () <") c:: >- ,.... :7 -=c ,~<<:r' 0~ ;~~ ..,> ;,~~ :s C) N ~. "'.....'. C:4.- U) >,.~. .-""'( ::,: c) CL'"" < ~~_, 11 "" ~ -~ ~. -", "...'~ " ,-~,~.'- ."..rtr'!,,'tll'< _~'f'.IJ~~~:1ir.ll~~~~. . 1"iJf'l'~-1,;J~!W"I''1?~''{'"W'i''I''J',\W'"i!'"I't''',''1'i'l'''~'W,71''''''!'!~~*",,~~~:w.iTi~!'lmroiff'iJ~-4ffi:'Al'~~ ".-< ,!_~ ~" ( ( \ .. " LEASE AGREEMENT THIS AGREEMENT made this 1st day of May, 1976, by and between Pauline N. Rife, individually and as sole legatee and Executrix of the Estate of Robert H. Rife, deceased, 2870 Sunset Drive, Camp Hill, Cumberland County, Pennsylvania, hereinafter called the LESSOR, and referred to in the singular neuter gender, party of the one'part, and M. F. ROCKEY MOVING COMPANY, a Pennsylvania corpora- tion, with its principal place of business in the Township of Lower Allen, Cumberland County, Pennsylvania, .hereinafter called the LESSEE, party of the other part. WIT N E SSE T H: That the LESSOR does hereby demise and lease and the LESSEE does hereby accept for and in consideration of the rents and covenants herein contained, for use by the LESSEE as an office, warehouse, and parking area - (1) ninety-four percent (94%) of all that certain cement block office building containing approximately fourteen hundred seventy (1,470) square feet; (2) twenty percent (20%) of all that certain cement block warehouse building containing approximately fifteen thousand six hundred (15,600) square feet; and (3) eighty percent (80%) of all that certain yard space containing approximately thirty-five thousand (35,000) square feet; all of said three items of realty being located on the property of the LESSOR known generally ." - ( ( " as 2240 Gettysburg Road, Camp Hill, for month-to-month beginning on the lst day of May, 1976, the LESSEE yielding and paying therefor a total monthly rent of fourteen hundred and thirty-five ($1,435) dollars, payable in advance on the first day of each month, the first monthly amount being payable on or before the 1st day of May, 1976, which payment is made to the LESSOR concurrent with the execution of this lease, the receipt of which is hereby acknowledged by the LESSOR. The LESSEE shall be obligated to pay light, heat, water, sewerage, and real property insurance costs and expenses (but not real estate taxes) for its portion of the realty leased here- under. The said LESSEE promises to pay said rent at the times and in the manner aforesaid, and not to sublease or underlease the said premises or any part thereof, nor assign this lease without the consent of the LESSOR in writing, and to quit and deliver up the same to the LESSOR or its attorney, peaceably and quietly at the end of said term, and also to keep the same in as good repair as the same is in at the commencement of said term, reasonable use and wear thereof and damage by accidental fire or other accidents not happening through the neglect of the LESSEE, its agents or servants, only excepted. The LESSEE agrees to pay to LESSOR as additional rent any increase(s) in fire insurance premiums upon the demised premises - 2 - """'- .'^" II'" " " I'-f ( ( and/or the building of which the demised premises is a part, due to an increase in the rate of fire insurance in excess of the rate on the demised premises at the time of making this lease, if said increase is caused by any act or neglect of the LESSEE or the nature of the LESSEE'S business. LESSEE agrees to indemnify and save the LESSOR harmless from any claims whether due to negligence of the LESSEE or not, due to the injury, including death, of any person or persons and due tO,the injury or destruction of the property of others which has been brought upon the premises by LESSEE or is lawfully upon said premises for any purpose whatsoever. The LESSEE further agrees to obey all ordinances of the township or any goverTh~ental authority in regard to cleaning of the streets, alleys and sidewalks in front of the premises hereby leased and any and all lawful orders, rules and regulations of the proper health officers of said township. And that the said LESSEE will allow to be put up and will safely keep, in a conspicuous part of said premises, "to let" or "for rent", and the place of inquiry, such card or sign to be furnished for that purpose by said LESSOR. All rents shall be payable without prior notice or demand at the home of the Lessor. LESSEE shall keep the demised premises clean and free from all ashes, dirt, and other refuse matter; replace all glass windows, - 3 - ','''''~ ',A.." ..". ','" ,-q",",.,.. I I "' .' r j ( ( doors, etc., which may be broken; and keep all water and drainpipe~ open. The LESSEE shall give to the LESSOR prompt written notice of any accident, fire or damage occurring on or to the demised premises. The LESSEE shall not install or maintain any signs upon the exterior of the said building without the written consent of the LESSOR. The LESSEE shall not make any alterations, improvements or additions to the demised premises without the written consent of the LESSOR and shall not use or operate any fixed machinery that is harmful to the building or disturbing to other tenants in the area, and shall not do or suffer to be done any act, matter or thing whereby the fire insurance or any other insurance now in force or hereafter to be placed on the demised premises, or on the building which is the demised premises, may become void or suspended, or whereby the same shall be rated as a more hazardous risk than at the time of execution of this lease. In the event that the demised premises is totally destroyed or so damaged by fire or other casualty not occurring through fault or negligence of the LESSEE or those employed or acting for him, that the same cannot be repaired or restored within a reasonable time, this lease shall cease and determine, and the rent shall abate for, the balance of the term. - 4 - ""..1J ,_ ,.- ,M'l'.'"' ~,_ ,.,r'" ,~, r I _".~,< J-" '0 .' 'I, ( ( If the damage caused as above be only partial or such that the premises may be restored to their previous condition within a reasonable time, the LESSOR may, at its option, restore the same with reasonable promptness, reserving the right to enter upon the demised premises for that purpose. The LESSOR also reserves the right to enter upon the demised premises whenever necessary to repair damage caused by fire or other casualty to the building. In the event of damage or casualty materially affecting the occupancy of the LESSEE during the making of repairs, rent shall be apportioned and partially suspended during the time LESSOR is in possession, taking into account the partial use, if any, of the premises by the LESSEE. THIS LEASE is granted on the express condition that the LESSEE and/or the occupants of the premises herein leased shall not conduct themselves in a manner as to be improper or objectionable or unreasonably interfere with the enjoyment by any other tenants occupying adjacent areas to the premises herein leased. In the event LESSEE shall fail to pay any rent, after the same shall become due, within thirty (30) days thereafter, shall violate or shall fail to perform, or,other.lise break any of the covenants of this Agreement, after fifteen (15) days' written notice, shall become insolvent, make an assignment for the benefit of creditors, be adjudicated a bankrupt by any Court or participate in any reorganization or composition with creditor's proceedings under federal or state bankruptcy laws, any of the same shall be deemed a default and breach of this lease and thereupon LESSOR may terminate - 5 - ,.""'.".- .', '-.1 "7" "~"I I n. 1'-' -., ~, "..' . , ( ( the term herein let in the manner as provided herein. In the event of default in the payment of the rent reserved herein after said thirty (30) day period, LESSEE hereby empowers any prothonotary or attorney of any Court of Record to appear for LESSEE in any and all actions which may be brought for rent and for the charges, payments, costs and expenses reserved as rent, or agreed to be paid by the LESSEE and/or to sign for the LESSEE an agreement for entering in any competent Court an amicable action or actions for the recovery of rent or other charges or expenses and in said suits or in said amicable action or actions to confess judgement for LESSEE for all or any part of the rent specified in this lease and then unpaid including, at LESSOR'S option, the rent for the entire unexpired balance for the term of this lease and for other charges, payments costs and expenses reserved as rent or agreed to be paid by LESSEE, and with interest and costs together with an attorney's commission of five (5%) percent. Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time as often as any of said rent and/or other charges reserved as rent shall fall due or be in arrears, and such powers may be exercised after the expiration of the original term. Likewise, upon default, when this lease shall be determined by condition broken, during the original term of this lease or thereafter and also when, as soon as the term herein created shall have expired, it shall be lawful for any attorney as attorney for the LESSEE to file an agreement for entering in any competent - 6 - "'-'"",!', ~. "-~,-r 'T . , 1"""1 , I. i 'r ( ( Court an amicable action for judgment in ejectment against LESSEE and all persons claiming under LESSEE for recovery by LESSOR of possession of the herein demised premises, for which this lease shall be his sufficient warrant, whereupon if LESSOR so desires, a writ of possession may issue forthwith without prior writ or proceedings whatsoever and provided that if for any reason after such action shall have been commenced same shall have been determined and possession of the premises herein demised remains in or be restored to LESSEE, the LESSOR shall have the right upon any sUbse- quent default or defaults or upon termination of this lease as hereinbefore set forth, to bring one or more amicable actions as hereinbefore set forth to recover possession of the within said premises. In any amicable action of ejectment and/or for rent in arrears, LESSOR shall first cause to be filed in such action an affidavit to be made by it or someone .acting for it setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence, and if a true copy of this lease be filed in such action, it shall not be necessary to file the original as a warrant of attorney, any rule of court, custom or practice to the contrary notwithstanding. In any amicable action of ejectment and/or rent in arrears, the LESSEE expressly agrees that any judgment, order or decree entered against it by any competent court by virtue of the power - 7 - h"'C '" >"""'l-<~--~-_"'., --" '''-'''C''llr'- -~ -1- '!' I' " . ~ ( ( of attorney contained in this lease shall be final, the LESSEE expressly waiving the benefit of all laws now or hereafter in force exempting goods from distraint, levy and sale, and any errors in proceedings which may occur thereunder. The LESSEE shall not have the right and privilege of subletting the premises in whole or in part. The LESSOR agrees that in the event the LESSOR shall fail to payor to provide for the payment of any taxes, liens or encumbrances upon the demised premises which may divest the LESSEE of its rights therein, the LESSEE, upon giving to the LESSOR thirty (30) days' written notice, shall thereafter be entitled to make payment on behalf of the LESSOR of said taxes, liens or encumbrances and upon such payment the LESSEE shall thereupon be permitted to deduct the amount of said payment from any rent accrued and to be accrued and payable in the future. All notices required to be given by LESSOR to LESSEE shall be sufficiently given by delivering the same to the LESSEE at 2240 Gettysburg Road, camp Hill, Pennsylvania and all notices given by the LESSEE to the LESSOR shall be given at the home of the LESSOR, 2870 Sunset Drive, Camp Hill, Pennsylvania, or at such other place as the LESSOR shall have designated for the payment of rent as hereinbefore provided. It is expressly understood and agreed by and between the parties hereto that this lease sets forth all the promises, - 8 - <qj;~-- . ..,--. ,. __",_',J~. ~\"_',., . _ c, .,. , -< I""T - ,-.". . , ., ~I ...r ,_ . . ( ( conditions and understanding between the LESSOR and its agent and LESSEE relative to the demised premises and the term herein let. IN WITNESS WHEREOF, the parties hereto have executed these presents the day and year above written and intend to be legally bound thereby. WITNESS: ,./) /L, of) /l' c. ~c..Ie?l _.va. Ca_L.L--- {/ ~~ n', ~ '~ C).J-->_x:_A.../v...._ 0 Pauline N. Rife LESSOR (.---....._-, J '~~ ATTEST: M. F. ROCKEY MOVING COMPANY ~dL- /? ~'dJ By ~AAlA'/4 () 'U T" I LESSEE - 9 - -""'W '-,,''':?'-}-, -;c., , ,- , 1-'1- I' t" ,cJilm 1-." " ( ( LEASE AGREEHENT THIS AGREEMENT made this 1st day of May, 1976, by and between Pauline N. Rife, individually and as sole legatee and Executrix of the Estate of Robert H. Rife, deceased, 2870 Sunset Drive, Camp Hill, Cumberland County, Pennsylvania, hereinafter called the LESSOR, and referred to in the singular neuter gender, party of the one part, and M. F. ROCKEY STORAGE COl-'l.PANY, a Pennsylvania corpora- tion, with its principal place of business in ~~e Township of Lower Allen, Clli~erland COlli~ty, Pennsylvania, hereinafter called the LESSEE, party of t..'1e other part. WIT N E SSE T H: That the LESSOR does hereby demise and lease and the LESSEE does hereby accept for and in consideration of the rents and covenants herein contained, for use by the LESSEE as an office, warehouse, and parking area - (1) six percent (6%) of all that certain cement block office building containing approximately fourteen hundred seventy (1,470) square feet: (2) eighty percent (80%) of all that certain cement block warehouse building containing approximately fifteen thousand six hundred (15,600) square feet; and (3) twenty percent (20%) of all that certain yard space containing approximately thirty-five thousand (35,000) square feet; all of said three items of realty being located on the property of the LESSOR known generally -'''~-'~ -'~I_'l -~ - " It' , ~,), ( ( as 2240 Gettysburg Road, Camp Hill,for month-to-month beginning on the 1st day of May, 1976, the LESSEE yielding and paying therefor a total monthly rent of seventeen hundred and ninety-eight ($1,798) dollars, payable in advance on the first day of each month, the first monthly amount being payable on or before the 1st day of May, 1976, which payment is made to the LESSOR concurrent with the execution of this lease, the receipt of which is hereby acknowledged by the LESSOR. The LESSEE shall be obligated to pay light, heat, water, sewerage, and real property insurance costs and expenses (but not real:estate taxes) for its portion of the realty leased here- under. The said LESSEE promises to pay said rent at the times and in the manner aforesaid, and not to sublease or underlease the said premises or any part thereof, nor assign this lease without the consent of the LESSOR in "lriting, and to quit and deliver up the same to the LESSOR or its attorney, peaceably and quietly at the end of said term, and also to keep the same in as good repair as the same is in at the commencement of said term, reasonable use and wear thereof and damage by accidental fire or other accidents not happening through the neglect of the LESSEE, its agents or servants, only excepted. The LESSEE agrees to pay to LESSOR as additional rent any increase(s) in fire insurance premiums upon the demised premises - 2 - i;_~ ,"~.-,_,.~~_,-" .".eo,>, 0 _, - '- " p -" -I~~" ,'---", 'j' , ' , , , ( c and/or the building of which the demised premises is a part, due to an increase in the rate of fire insurance in excess of the rate on the demised premises at the time of making this lease, if said increase is caused by any act or neglect of the LESSEE or the nature of the LESSEE'S business. LESSEE agrees to indemnify and save the LESSOR harmless from any claims whether due to negligence of the LESSEE or not, due to the injury, including death, of any person or persons and due to the injury or destruction of the property of others which has been brought upon the premises by LESSEE or is lawfully upon said premises for any purpose whatsoever. The LESSEE further agrees to obey all ordinances of the township or any governmental authority in regard to cleaning of the streets, alleys and sidewalks in front of the premises hereby leased and any and all lawful orders, rules and regulations of the proper health officers of said township. And that the said LESSEE will allow to be put up and will safely keep, in a conspicuous part of said premises, "to let" or "for rent", and the place of inquiry, such card or sign to be furnished for that purpose by said LESSOR. All rents shall be payable without prior notice or demand at the home of the Lessor. LESSEE shall keep the demised premises clean and free from all ashes, dirt, and other refuse matter; replace all glass windows, - 3 - ,.~'". - . ~., ~.~,-, ,. 'oF' I' I" "-'_I"'~ --~ r 1 ~-' '. ( ( - 4 - ( ( If the damage caused as above be only partial or such that the premises may be restored to their previous condition within a reasonable time, the LESSOR may, at its option, restore the same with reasonable promptness, reserving the right to enter upon the demised premises for that purpose. The LESSOR also reserves the right to enter upon the demised premises whenever necessary to repair damage caused by fire or other casualty to the building. In the event of damage or casualty materially affecting the occupancy of the LESSEE during the making of repairs, rent shall be apportioned and partially suspended during the time LESSOR is in possession, taking into account the partial use, if any; of the, premises by the LESSEE. THIS LEASE is granted on the express condition that the LESSEE and/or the occupants of the premises herein leased shall not conduct themselves in a m~~ner as to be improper or objectionable or unreasonably interfere with the enjoyment by any other tenants occupying adjacent areas to the premises herein leased. In the event LESSEE sh"ll fail to pay any rent, after the same shall become due, within thirty (30) days thereafter, shall violate or shall fail to perform, or otherwise break any of the covenants of this Agreement, after fifteen (15) days' written notice" shall become insolvent, make an assignment for the benefit of creditors, be adjud~ca~ed a bankrupt by any Court or participate in any reorganizatiion or composition with creditor's proceedings under federal or state bankruptcy laws, any of the same shall be deemed a default and breach of this lease and thereupon LESSOR may terminate - 5 - '.1~ o. _~~ .. . - "1 II ,- ~, 1~1'1f1 ~" ;.,1;'1 _ _. , " ( ( the term herein let in the manner as provided herein. In the event of default in the payment of the rent reserved herein after said thirty (30) day period, LESSEE hereby empowers any prothonotary or attorney of any Court of Record to appear for LESSEE in any and all actions which may be brought for rent and for the charges, payments, costs and expenses reserved as rent, or agreed to be paid by the LESSEE and/or to sign for the LESSEE an agreement for entering in any competent Court an amicable action or actions for the recovery of rent or other charges or expenses and in said suits or in said amicable action or actions to confess judgement for LESSEE for all or any part of the rent specified in this lease and then unpaid including, at LESSOR'S option, the rent for the entire unexpired balance for the term of this lease and for other charges, payments costs and expenses reserved as rent or agreed to be pidd by LESSEE, and with interest and costs together with an attorney ~ s commission of five (5%) percent. Such authority shall not be e~austed by one exercise thereof, but jUdgment may be confessed as aforesaid from time to time as often as any of said rent and/or other charges reserved as rent shall fall due or be in arrears, and such powers may be exercised after the expiration of the original term. Likewise, upon default, when this lease shall be determined by condition broken, during the original term of this lease or thereafter and also when, as soon as the term herein created shall have expired, it shall be lawful for any attorney as attorney for the LESSEE to file an agreement for entering in any competent - 6 - ., .~.,'^' I. ., ,. ~'I"'r' .~ I.. - " ( ( Court an amicable action for judgment in ejectment against LESSEE and all persons claiming under LESSEE for recovery by LESSOR of possession of the herein demised premises, for which this lease shall be his sufficient warrant, whereupon if LESSOR so desires, a writ of possession may issue forthwith without prior writ or proceedings whatsoever and provided that if for any reason after such action shall have been commenced same shall have been determined and possession of the premises herein demised remains in or be restored to LESSEE, the LESSOR shall have the right upon any subse- quent default or defaults or upon termination of this lease as hereinbefore set fort.lL, to bring one or more amicable actions as hereinbefore set fort-It to recover possession of the within said premises. In any amicable action of ejectment and/or for rent in arrears, LESSOR shall first cause to be filed in such action an affidavit to be made by it or someone acting for it setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence, and if a true copy of this lease be filed in such action, it shall not be necessary to file the original as a warrant of attorney, any rule of court, custom or practice to the contrary notwithstanding. In any amicable action of ejectment and/or rent in arrears, the LESSEE expressly agrees that any judgment, order or decree entered against it by any competent court by virtue of the power - 7 - ,~. - \; - <- 11]-1.-' _v I I., . ,~ ( ( of attorney contained in this lease shall be final, the LESSEE expressly waiving the benefit of all laws now or hereafter in force exempting goods from distraint, levy and sale, and any errors in proceedings which may occur thereunder. The LESSEE shall not have the right and privilege of subletting the premises in whole or in part. The ,LESSOR agrees that in the event the LESSOR shall fail to payor to. provide for the payment of any taxes, liens or encumbrances upon the demised premises which may divest the LESSEE of its rights therein, the LESSEE, upon giving to the LESSOR thirty (30) days' written notice, shall thereafter be entitled to make payment on behalf of the LESSOR of said taxes, liens or encUIT~rances and upon such payment the LESSEE shall thereupon be permitted to deduct the amount of said payment from any rent accrued and to be accrued and payable in the future. All notices required to be given by LESSOR to LESSEE shall be sufficiently given by delivering the same to the LESSEE at 2240 Gettysbqrg Road, Camp Hill, Pennsylvania and all notices given by the tES$EE to the LESSOR shall be given at the home of the LESSOR, 2870 Sunset Drive, Camp Hill, Pennsylvania, or at such other place as the LESSOR shall have designated for the payment of rent as hereinbefore provided. It is expressly understood and agreed by and between the parties hereto that this lease sets forth all the promises, - 8 - ,~^-- -'1., -~,. ^ ~ ~, r'1""I"" 1 ",-.. " I.. - . , ( ( condi tions and understanding between the LESSOR and its agent and LESSEE relative to the demised premises and the term herein let. IN WITNESS WHEREOF, the parties hereto have executed these presents the day and year above written and intend to be legally bound thereby. WITNESS: (!ld-e~ c< .dcuUU<-- (-j)~ ~, \S:,)<-'~~ Paul~ne N. R~fe '\ LESSOR ATTEST: M. F. ROCKEY STORAGE COr1PANY ftAT/~ f (l ~ By J;A~N~ 9, liJ- LESSEE - 9 - ;~" ~ . , '1-1 I, McNEES, WALLACE & NURICK ATTORNEYS AT LAW 100 PINE STREET P. O. BOX 1166 HARRISBURG, PA 17108~1166 TELEPHONE (71?) 232.8000 . FAX 17171237-5300 http://www.mwn.com fiLE COpy RHONDA M. WEAVER DIRECT DIAL: (7\7) 237-5434 E-MAILADDRESS:RMWEAVER@MWN.COM March 27, 2001 VIA HAND DELIVERY Gary L. Henline M.P. Rockey Moving Company & M.F. Rockey Storage Company 2240 Gettysburg Road Camp Hill, PA 17011 RE: NOTICE TO QUIT Our File: 19999-0001 Dear Mr. Henline: Please be advised that we represent your landlord with respect to the following two leases: (i) the lease dated May 1, 1976, originally between M.F. Rockey Moving Company and Pauline N, Rife, individually and as sole legatee and Executrix of the Estate of Robert H. Rife, for a portion of the property commonly known and numbered as 2240 Gettysburg Road, Camp Hill, Pelll1sylvania, and (ii) the lease dated May 1, 1976, originally between M.F. Rockey Storage Company and Pauline N. Rife, individually and as sole legatee and Executrix of the Estate of Robert H. Rife, for the remaining portion of the property commonly Imown and numbered as 2240 Gettysburg Road, Camp Hill, Pennsylvania (collectively, the "Leases"), YOU ARE HEREBY GIVEN NOTICE TO QUIT THE LEASED PREMISES KNOWN AS 2240 GETTYSBURG ROAD, CAMP HILL, PENNSYL VANIA DUE TO THE EXPIRATION OF THE TERM OF YOUR MONTH TO MONTH LEASE ON APRIL 30, 2001. YOU MUST LEAVE THE LEASED PREMISES ON OR BEFORE APRIL 30, 2001. . COLUMBUS, OH WASHINGTON, D,C, . '",~~.._- -i>'Tc""'" , ;. I ~ .. , ' -' , ~I '. , - Gary 1. Henline M.F. Rockey Moving Company & M.F, Rockey Storage Company March 27, 2001 Page 2 IF YOU DO NOT LEAVE THE LEASED PREMISES AND GIVE POSSESSION OF THE LEASED PREMISES TO LANDLORD ON OR BEFORE APRIL 30, 2001, YOUR LANDLORD WILL BEGIN APPROPRIATE LEGAL ACTION TO HAVE YOU REMOVED FROM THE SAID LEASED PREMISES. Very truly yours, McNEES, WALLACE & NURICK /'i /' ,.,," , ,/ /. :7 ,;;"' , !- ,. ",. ,d/!/~" .t2i'1f~ . -"~ I ',VN),f j./' t./' - ./d/llk;.l/ /It [i? r '",/',// Ll "yl_-;vf-l.... ;l' {i ,"" By Rhonda M, Weaver RMW:pwe c: Carl Probst James D. Campbell, Ir. (with copy ofleases as enclosures)(FAX & HAND DELIVERY) , ' ,,~ .,,"-', 11"f1 - -~ , l'f AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF CUMBERLAND Eugene Shuey, being duly sworn according to law, deposes and says: 1. I am a competent adult and the owner of Attorneys Legal Process Service; 2, At the directions of McNees, Wallace & Nurick, attorneys for Pauline N. Rife, individually and as sole legatee and Executrix ofthe Estate of Robert H. Rife, I served a Notice to Quit on M,F. Rockey Moving Company & M.F. Rockey Storage Company, at 2240 Gettysburg Road, Camp Hill, P A 17011, 3, The Notice to Quit was personally served by hand very on C'"i~(~ keN Ii N (.)MA(~ a8, 2001, at : 00 A.M.. [strike one]. Sworn to and subs~ribed before me this ::/'?/ day of March, 2001 ),t ,(/ ",/"""/1/'/" -";.t~;lj~/u.-LI Eugene;Shuey :"',<, ~ / J "",..U& C HE'I1..sA ~ '-"~~~~'~-.~1 f---~-NOTAR1AL SEAL i I Janella L Hersh. Notary ~ubllc \ I Harrisbuf~, PA, Dauphin C011r,;y \ My Oommisslon Expires March 4, 2004 i , " _,,:;.~______~_.".,,_~._M~- ~.F. Rc:ckey Moving Co. Gary Henline President 2240 Gettysburg Road Camp Hill, Pennsylvania 17011 Tel. (717) 761-0351 Fax, (717) 761-0516 mfrockeY@aoJ,com ~lllED Agent for Allied Van lines. ,~~, ~'<'-_i_'~ 'C" .~ "-, "'1--1" t-_ ~ " ,~ . , Affidavit of Carl R. Probst Carl R. Probst, as Executor ofthe Estate of Frederick D. Rife, being duly sworn, declares and affirms as follows: 1. Pursuant to a deed dated October 4, 1999, Frederick D. Rife became the owner of the property located at 2240 Gettysburg Road, Camp Hill, Pennsylvania. 2. Frederick D. Rife died on August 28, 2000. 3. Pursuant to Letters Testamentary issued by the Register of Wills of Cumberland County, I have been appointed as the Executor and Personal Representative of the Estate of Frederick D. Rife. 4. The property located at 2240 Gettysburg Road was the subject of two month-to- month leases, with M.F. Rockey Moving Company and M,F. Rockey Storage Company as lessees. 5. On or about March 28, 2001, a Notice to Quit was issued and personally served upon M.F, Rockey Moving Company and M.F. Rockey Storage Company, which required them to quit the property on or before April 30, 2001. 5. To date, neither M.F. Rockey Moving Company nor M.F. Rockey Storage Company have quit the property. Further the affiant saith not. ~~.r~ Carl R. Probst Subscribed and sworn before me this 14th day of May 2001. ~hIJ.~ Notary Public NOTARIAL seAL ANGElA M. ALONZO, NoIalY Pulll1c Harrieburg, PA Dauphln~, My Commission expires Oct. 26. QN'O -f~_. ... - . 1- I' 'I ~ I r . , CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing document was this day served upon the , following via first class mail, postage prepaid: M.F. Rockey Moving Company 2240 Gettysburg Road Camp Hill, PA 17011 M.F. Rockey Storage Company 2240 Gettysburg Road Camp Hill, P A 17011 James D. Campbell, Jr., Esq. Caldwell & Kearns 3631 North Front Street Harrisburg, P A 1711 0 Kimb~;/:!::~~- Date: May 15, 2001 "'" ~-.'~' - - ."~ I-j- - - -"-'~~' If ~ t?v ",~-1 ~~~ ,~ ", - ~ " .,.,. J., rr _~>;!!I!B!l-""",~_=_"",,,,!,,,,,,,,,~.I..,~, _,. . -" T~' ~_. ""-". -"-,,~.~ . C: --- Q ~ t -c. ) '-'1 Sr 0. ~ "- ~ '- -...., -> ..... --- ~ ~ .c: 9 r; vJ r- ev "" '> Sl~ GJ ~ <;:-' ~ ~)... e, I" t '~ ';:::-.., ,r:: :) ." (' '" ~,,__~"w 0 ,_ ~~_. ~ _~'._.' ~ _ J> ;~ -.. (I.' F: ':;- ," )>~~ n c:: <~ ~ -<' "" C~ ~'._~'~~ . (~t Q " "'4 .. :~~ .----1 ':J '''-.., \.T, ;'-.) , , '-,"- -.~ ~, -f1 :-:::) ,..) ...~., :< ,1!!!~~j\liIi'Wl\M<'"~.'R!filln;,'l""'!"!"_~"!,"':t'_'f'il":"lBl',W,;"1;'~li~~'r~i~lf'!~~11\In%~~~~ " ESTATE OF FREDERICKD. RIFE, by and through its Executor CARL R. PROBST, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CNIL ACTION - LAW M.F. ROCKEY MOVING COMPANY, and: No. 2001-2945 M.F. ROCKEY STORAGE COMPANY, Defendants PRAECIPE FOR DISCONTINUANCE TO THE PROTHONOTARY: Pursuant to Pennsylvania Rule of Civil Procedure 229, please mark the above-listed action as discontinued as to all defendants. Defendants concur with the discontinuance of this action. McNEES WALLACE & NURlCK LLC By S aron . Paxton J.D. No. 58852 Kimberly M. Colonna J.D. No. 80362 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff Dated: June 25, 02001 I'"w...., " '-, 1--1-,-.-" . I-I ,- '", .. ~ CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing document was this day served upon the following via first class mail, postage prepaid: James D. Campbell, Jr., Esq. Caldwell & Kearns 3631 North Front Street Harrisburg, P A 1711 0 :(;,t/.fY!. tI~ Kimberly M. olonna Date: June 25, 2001 "fW'Il . '" ^-.."- .. ,~. '- 'T"l J c,. , '--I r :-. ~~ ESTATE OF FREDERICK D, RIFE, by and through its Executor CARL R. PROBST Plaintiff v. M.F. ROCKEY MOVING COMPANY and M.F. ROCKEY STORAGE COMPANY, Defendants . : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : No. 2001-2945 NOTICE TO PLEAD TO: Mr. Carl R. Probst c/o Sharon R. Paxton, Esquire c/o Kimberly M. Colonna, Esquire McNEES, WALLACE & NURICK 100 Pine Street P.O. Box 1166 Harrisburg, P A 17108-1166 YOU ARE HEREBY NOTIFIED, that the New Matter set forth herein contain averments against you to which you are required to respond within twenty (20) days after service thereof. Failure by you to do so may constitute an admission. Date: , (r/ol , '-";" '" '___1: C->,'" 'P~:"'-~'I"_"~"'_c,_.;_~^'~" __ _._,_ ,_ .," "-,I~r __~ _ r.,T Respectfully Submitted, CALDWELL & KEARNS (l ~, J es D, Campbell, Jr., Esquire 1\ y J.D. No. 07051 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 Attorney for Defendants , " ~-,- J" "", V__,__",_, - __N^ ESTATE OF FREDERICKD. RIFE, by and through its Executor CARL R. PROBST : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : CIVIL ACTION - LAW v. M.F. ROCKEY MOVING COMPANY and M.F. ROCKEY STORAGE COMPANY, : No. 2001-2945 Defendants ANSWER TO RULE TO SHOW CAUSE WITH NEW MATTER COME NOW, M.F. Rockey Moving Company and M.F. Rockey Storage Company, by r Ii I , and through their attorneys, Caldwell & Kearns, and in response to the Rule to Show Cause issued in this case, file the within Answer with New Matter, and in support thereof aver the following: I! I " " t t; 1. Admitted. 2. Admitted. i~ , i I I 3. Admitted. 4. The express language ofthe Leases, attached to Plaintiffs Complaint as Exhibits "A" and l,~ . , "B", are admitted. To the extent that Plaintiffs averment attempts to state a legal >, , , , ! I I conclusion, the same is specifically denied. F 5. Admitted. !., I ij ,I '.,,'1 .. il ::'I:-~ II ''''''_;'~" -_"_,",_,-~,,,~,,"" - "'__"_~1,1'[,"."_"____:.~~,"__,_________ -'''''";---''" "",,,, , " I"-! ". ,.' "~'" .. ,L' ' 6, The express terms of the Leases, attached to Plaintiffs Complaint as Exhibits "A" and "B", are admitted. To the extent that Plaintiffs averment attempts to state a legal conclusion, the same is specifically denied. i", 7. Admitted, 8. Admitted. 9. Admitted. 10. Admitted. I 1. The express terms of the Leases, attached to Plaintiffs Complaint as Exhibits "A" and "B", are admitted. To the extent that Plaintiffs averment attempts to state a legal conclusion, the same is specifically denied. 12. It is admitted that such notice was served upon Defendants, By way of further Answer, Defendants aver that the period, provided in the Leases, for them to vacate is "commercially unreasonable" given the nature and character of Defendants' current business operations, and in light ofthe personal and professional relationship - upon which Defendants premised their expectation of continuing to lease the subject property for the foreseeable future - with the Rife family, prior to Mr. Probst's involvement as the Executor of Frederick Rife's Estate, By way of further Answer, Defendants are able and willing to vacate the said property by June 15,2001, they will continue to remit the agreed upon rent, and the Estate has no need forpossession prior to June 15,2001. Although the property is currently subj ect to an Agreement of Sale, the Estate is not 2 "." . 'M. ".;;',e.'."" _').<~,"-~ ,\-'t~ _ ,'~] ~ 0_ "__ ,~, ':<-'""_P'~I;"'I' ,__ ,-,-~-~., .,' , 1-1- ..' ,,, "n__' "." '-,~-" ." , ",., ." ~,-"' ,. -" . required to close on the subject property until June 29, 2001, and the Defendants have been granted the permission of the equitable owner/purchaser to remain on site until close of business on June 15,2001. By this reference, Defendants specifically incorporate the averments contained in their New Matter (paragraphs 21-34), below, as though the same was set forth at length herein. 13. Admitted. 14. The language of the Leases are admitted. Plaintiff s legal conclusion is denied. By way of further Answer, the response set forth in paragraph 12 and the averments contained in Defendants' New Matter (paragraphs 21-34), below, are incorporated herein by reference. 15. The express terms of the Leases, attached to Plaintiffs Complaint as Exhibits "A" and "B", are admitted. To the extent that Plaintiffs averment attempts to state a legal conclusion, the same is specifically denied. 16. The express terms ofthe Leases, attached to Plaintiffs Complaint as Exhibits "A"and "B", are admitted. To the extent that Plaintiffs averment attempts to state a legal conclusion, the same is specifically denied. 17. Admitted in part and denied in part. It is admitted that an affidavit of Carl Probst, executor of the Estate of Frederick D. Rife, is attached to Plaintiff s Complaint as Exhibit "D." It is specifically denied that all of the facts necessary for this Court to reach its i'l ruling are contained therein. Byway of further Answer, the portion of Plaintiffs 3 " i :'r"""^ . ,-" ' -.'''. ~-"-"- y'-' ,~-;~~" -;,' <.,',_1""",,,," "." '"--,,,_~,",__'" . t- . '-I" .~_~C , ~ " . -'''' '7 averment just referenced is a conclusion of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 18. Admitted. 19, Denied. After reasonable investigation, Defendants are without sufficient information to form an opinion as to the truth or veracity of Plaintiffs averment, and the same is therefore specifically denied, 20. The averments contained in this paragraph contain Plaintiffs prayer for relief and conclusions oflaw to which no responsive pleading is required, and the same is accordingly denied. WHEREFORE, Defendants, M.F. Rockey Moving Company and M.F, ROCKEY Storage Company, respectfully request that this Honorable Court rule in its favor and deny Plaintiffs request to enter judgment against them, in ejectment, upon the condition that Defendants will vacate the premises by close of business on June 15, 2001, or suffer entry of judgment against them at that time. NEW MATTER 21. Defendants hereby incorporate the Answers and averments set forth above as though the same were recited in full hereunder. 22. The subject premises is subject to an Agreement of Sale, with William R. Grace identified as the Buyer. 23, The Estate is not obligated to close on the subject property until June 29, 2001. 4 :"fl1'" , . -, -- -, ~" '-',-,,,- . "'I:tO-"",,-,, ,". _', "~.", ",_'" '-,".1 ,. .""." r(~"-""'- --. " 24. William R. Grace is the equitable owner of the property under the Agreement of Sale. 25. William R. Grace has given the Defendants verbal permission to remain on the premises until June 15, 200 I, to afford Defendants the opportunity to effectuate an orderly removal of its inventory and supplies from the subject property and to transport those items to its new business location. 26, Defendants have continued to remit weekly "rent" payments to Mr. Probst, as Executor of Frederick Rife's Estate, subsequent to receipt of the eviction notice. 27, Said payments have been accepted by Mr. Probst and have not been returned. 28. The Estate has not procured an alternative tenant who might be inconvenienced by the Defendants' continued use ofthe premises; in fact, if Defendants were not utilizing the premises, Plaintiff would not be generating any rental income from the subject property. 29, The requirement in the Leases that Defendants vacate the premises within thirty (30) days of the end ofthe lease term (i.e" on month-to-month leases) is commercially unreasonable given the current nature] and character of Defendants' businesses, and in light of the business and personal relationships which Defendants shared with the Rife family, prior to Mr. Probst's involvement as Executor of the Estate of Frederick D. Rife. ] The subject Leases were negotiated one quarter of a century ago. What was commercially reasonable then - given the size of the companies at that time and the means by which business was then conducted - is not necessarily so today given the growth of the companies and changes in the manner of conducting business, Moreover, due to the uninterrupted term of the Leases (i,e" one quarter of a century), Defendants believe that the parties' conduct and dealings evince a modification of the express terms ofthe Lease relative to the Defendants' continued occupancy of the subject premises. 5 -,.",-/ ""---',~,-, ~._._-_,'l'>.'''''''''"'''~'';_ '-~"'~ '-~-I'~r;" . ~, 'I' ,,- .,. ~ ,." ~._""""< _'" ~_ > ~ 0 30. The Defendants have occupied the subject premises for a quarter century under the subject Leases, and therefore maintained an expectation -- based upon the aforementioned relationships with the Rife family and their course of dealings and conduct -- that any termination ofthe Leases would be accompanied by a reasonable accommodation relative to vacating the property. 31. Defendants covenant that they are able to fully vacate the subject property by close of business on June 15,2001, and they will continue to remit "rent" checks until that time to compensate the Estate for the fair rental value of the property. 32. Defendants will agree to the entry of an Order against them, for ejectment, if they have not vacated the subject property by close of business on June 15,2001. 33. Defendants have attempted to reach a reasonable and mutually agreeable solution with the Plaintiff, who has nevertheless been wholly unresponsive. See (Exhibit "A", March 29, 2001 correspondence from Attorney Campbell to Attorney Paxton; Exhibit "B", May 15, 2001 correspondence from Attorney Campbell to Attorney Paxton.) 34. Defendants hereby request a hearing prior to this Court's disposition of Plaintiff's request for leave of Court to enter judgement. WHEREFORE, Defendants, M.F.Rockey Moving Company and M.F.Rockey Storage Company, respectfully request that this Honorable Court rule in its favor and deny Plaintiff's request to enter judgment against them, in ejectment, upon the condition that Defendants will 6 . "..,.."''':'_,p'>>."J.... ',',~ ~ _., ' v.._IT:'I"', ." ".>- 1-1.; .,. . ~ f ,. -' "~ "p-'~""'''< ry _. -.', 7' '~'n ,',_., - vacate the premises by close of business on June 15,2001, or suffer entry of judgment against them at that time. Respectfully Submitted, CALDWELL & KEARNS Date: 01-39/25369 (; (r/ot /1/ f/.A v-' Jame . Campbell, Jr., Esquire Atty ,D. No. 07051 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 Attorney for Defendants 7 '~i ~. 'q>-\~.-,~",. -"~ ,'- _M~I~_r_____'__ , " ""~' ~~ VERIFICATION I, Gary Henline, as President ofM.F. Rockey Moving Company and M.F. Rockey Storage Company, hereby verify that the averments in the foregoing Answer with New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 94904, relating to unsworn falsification to authorities. By: .~_. d. ~f> G~e, PresIdent ofM.F, Rockey Movmg Company and M.F. Rockey Storage Company ,'--~~' " .".'."< ._c._.',,_ I; t '.=., ',,_ .__, ----'. "-"1-.-..- -- ~ -"- "i!:l..ll.L CALDWELL & KEARNS A PROFESSIONAL CORPORATION CARL G. WA$S JAMES R, CLIPPINGE:R CH.....R.L!E;.S J. OtHA.Ri'. tit JAMES D. CAMP8E:LL. .JR, JAMES L. GOLDSMITH STANLEY ,J, A, LASKOWSKI JEFFRE:Y T. M<:.GUIRE. DOUGLAS K. MARSICO BRETT M. WOODBURN DOUGLAS E. HERMAN -ALSO A MI:MaE.R 01'" N.J BAR ATTORNEYS AT LAW OF COUNSEL tHOMAS D. CALDWELL. .JR. R.tCHARD L. KEA.R.NS 3631 NORTH FRONT STREET HARRISBURG. PENNSYLVANIA 17110-1533 March 29, 2001 717-232-7661 FAX, 717-;232-2766 thefirm@caldwetlKeams.com VIA FACSIMILE 237-5300 AND REGULAR MAIL Sharon R. Paxton, Attorney McNees, Wallace & Nurick 100 pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 Dear Sharon: This will acknowledge receipt of the Notice to Quit which was forwarded by Rhonda M. Weaver of your office. r am at a loss to understand the need for a termination of this lease in 30 days unless you have a tenant prepared to move in on May 1. Under the circumstances, I believe that the termination is commercially unreasonable and appears to be done for the deliberate' purpose of maliciously interfering with Gary's ability to continue to operate M. F. Rockey Moving Company as a going concern. We request an extension of the lease until the landlord is legally obligated to deliver possession to another party. We were previously advised that if we agreed to the inflated stock price which was demanded, and which was nearly twice the value found by the independent CPA who appraised the value under the terms of the Stock Purchase Agreement, there would be no problem with as long an extension as we wanted in order to come up with financing to purchase the building. When we refused to pay an unreasonable price that was at variance with the independent appraiser's opinion, as well as the specific terms of the Stock Purchase Agreement, efforts were immediately commenced to extinguish Gary's ability to operate the business from the warehouse which the company has occupied for a quarter of a century. I had hoped that we would be able to come to an amicable resolution of t~is difficult situation. However, if your client persists in his efforts to prevent the company from continuing operations, we will have no choice but to pursue litigation to recover the damages which will ensue. ~Si~c~rel~"{ ~es D. Campbell, Jr. DWELL & KEARNS JDCJr/nb cc: Rhonda M. Weaver, Attorney Gary L. Henline 01-39/19951-1 - r CALDWELL & KEARNS A PROFESSIONAL CORPORATION CARL G_ WASS .JAME:S R. CLIPPI "I ER ,: CHARL.ES .). OE:H :\ T. II' .JAMES O. CAMPS L....J j ..JAMES L.. GOLOS H STANLE:Y .,J. A. l..ASK .JEFFREY T, McGUIRE. DOUGLAS K. MARSICO BRETT M. WOODBURN DOUGLAS E. HERMAN .ATTORNEYS AT LAW OF COUNSEL THOMAS O. CALDWELL. .JR. RrCHARD L. KEARNS 3631 NORTH FRON,. STREET HARRISBURG. PENNSYLVANIA 17110-1533 May 15, 2001 717-232~76t51 FAX, 717-232-2766 theflrm@caJdwellkeams.com .I".LSO " MEMBER Of" N.,J S^R VIA FACSIMILE 237-5300 AND REGULAR MAIL Sharon R. Paxton, Attorney McNees, 'Wallace & Nurick 100 pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 Re: M. F. Rockey Moving Company - Warehouse Occupancy Dear Sharon: I was somewhat distressed by our conversation yesterday indicating that Mr. Grace has now changed his mind about permitting an orderly removal by M. F. Rockey from the warehouse property. M. F. Rockey has been conducting its business based upon Mr. Grace's representation that we could occupy the property until the end of June, or until mid June as a minimum. .Plans have been made to relocate everything prior to June 15. For Mr. Grace to communicate, through you, that the date has now been moved up to the end of May, creates a significant problem. The commencement of an eviction proceeding at this point would be clearly unreasonable and would result in considerable unnecessary legal expense to all concerned. We would have no choice but to defend any eviction proceeding in order to preserve our ability to move out in an orderly fashion by the date previously promised to us. Commencement of such a proceeding would also result in substantial damages to M. F. Rockey, including but not limited to interference with its ability to conduct business and injury to its trade reputation in the community. It is my understanding that M. F. Rockey has been making the rental payments when due and that such payments have been negotiated by the estate. Since the estate is not obligated to close under the Agreement of Sale until June 29, we request that you refrain from any action which would disrupt M. F. Rockey'S operation prior to June 15, 2001. Sincerely, ~ S/h~ (~mes D. Campbell, Jr. CALDWELL & KEARNS JDCJrlshk 01-39/19951-1 fr. .4d N v>{'<'1 ,_ f-!->..-J........J .1." .". ,~ ..', ,,_. ~ --- CERTIFICATE OF SERVICE -f1". AND NOW, this t;' day of June, 2001, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy ofthe same in the U.S, Mails at Harrisburg, Peunsylvania, postage prepaid, addressed to: Sharon R. Paxton, Esquire Kimberly M. Colonna, Esquire McNEES, WALLACE & NURICK 100 Pine Street P.O. Box 1166 Harrisburg, P A 17108-1166 CALDWELL & KEARNS By: ~ t1 ~1 ~ '" - ,"'1i'd.,~,~q"Y- ,,".,,;., .,--0;' I~'!",. '" ,_~ ~.-' I I .-