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In the
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
Pennsylvania
CIVIL ACTION - LAW
VIRGINIA E. FRY,
Plaintiff
No. 99-2497
V5.
CARUSLE CAR WASH, INC.,
Defendant
.
.
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 Notice and Complaint are served, by entering
a written appearance personally, or by attorney, and filing In writing
with the Court your defenses or 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 ON THE FOllOWING PAGE TO
FIND OUT WHERE YOU CAN GET lEGAL HELP.
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COUNT II
VIOLATION OF THE
PENNSYLVANIA UNDERGROUND STORAGE TANK ACT
13. The averments of paragraphs 1 through 12 of this Counterclaim
are Incorporated herein as If set forth at length.
14. The Counter-Plaintiff has an Interest In the property at Issue which
Is or may be effected by violation of the Pennsylvania Underground Storage
Tank Act.
15. The Counter-Plaintiff Is permitted to commence a civil action on
Its behalf to compel compliance with the Pennsylvania Underground Storage
Tank Act, pursuantto 35 Pa.C.S.A. 6021.1305(c).
16. Counter-Plaintiff makes demand upon Counter-Defendant to
compel compliance with the Pennsylvania Underground Storage Act, in the
form of corrective action and reimbursement to Counter-Plaintiff for abatement
costs incurred.
1. Admitted.
2. Admitted.
3. Admitted as to the purpose and status of the action. Admitted as to
the accuracy of the copy of the mortgage attached as Exhibit "A".
4. Admitted.
S. Admitted.
6. Admitted.
7. The averment of paragraph number 7 is a conclusion of law, to which
no response Is required. To the extent a response may be deemed necessary, the
averment of paragraph 7 Is denied.
WHEREFORE, Defendant demands judgment be entered In its favor and
against the Plaintiff.
4. The property transferred to Counter-Plaintiff contained hidden and
concealed environmental damages, including but not limited to the following:
(a) contaminated soli, with that contamination including,
but not being limited to, concentrations of BTEX, cumene,
naphthalene and lead;
(b) infiltration of gasoline compounds into the ground
water, which concentrations exceed the state wide, health based
standards, in particular being concentrations of benzene, toluene,
cumene, naphthalene and lead; and
(c) an undisclosed underground storage tank, remaining
on the property, which has not been subject to any storage tank
closure.
S. The environmental conditions and damages, set forth above,
were not disclosed to Counter-Plaintiff, at the time of the sale of the
property by Counter-Defendant.
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COUNT I
COMMON LAW INDEMNITY
10. The averments of paragraphs 1 through 9 of this Amended
Counterclaim are Incorporated herein as if set forth at iength.
11. The Counter-Defendant, Virginia E. Fry, was negligent in her
operation and maintenance of property by permitting the discharge of petroieum
and other hazardous materials from underground storage tanks ("UST") and
causing the property to be contaminated.
12. Pursuant to the Pennsylvania Storage Tank and Spill Prevention Act,
35 Pa.C.S.A. 96021.0101, et. seq., the Counter-Plaintiff may incur great costs and
expense to investigate and remediate the contaminated condition of the property
as a result of the Counter-Defendant's negligent actions.
13. Additionally, pursuant to the Comprehensive Environmental,
Response, Compensation, and Liability Act, ("CERCLA"), 42 U.S.C. 919601, et.
seq., the Counter-Plaintiff may incur great cost and expense to investigate and
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remediate the contaminated condition of the property as a resuit of the Counter-
Defendant's negligent action.
14. Said violations of the above referenced environmental statutes were
the sole result of Counter-Defendant's negligent actions and without any fault on
the part of the Counter-Plaintiff.
15. To date, the cost of investigation and abatement incurred by
Counter-Plaintiff are in excess of $25,000.00 based on the violations of the
Pennsylvania Storage Tank and Spill Prevention Act and/or CERCLA.
16. Counter-Plaintiff believes and avers that the cost to remedlate the
property and removing all contaminates will be in excess of $51,589.52, the
amount claimed by the Counter-Defendant pursuant to her mortgage foreclosure
action.
WHEREFORE, Counter-Plaintiff demands judgment be entered in its favor
and against the Plaintiff, in the nature of a complete set-off of the $51,589.52
demanded by Counter-Defendant in her mortgage foreclosure action and for any
additional damages as may be provided at trial.
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COMPLAINT IN MORTGAGE FORECLOSURE
1. The plaintiff, Virginia E. Fry, is an individual, residing at 405
Westover Road, Shippensburg, Franklin County, Pennsylvania.
2. The defendant, Carlisle Car Wash, Inc., is a Pennsylvania
corporation, with its registered office at 702 Clinton Road, Lebanon, Lebanon
County, P A 17042, and a place of business at 400 S. Hanover St., Carlisle,
Cumberland County, PA 17013.
3. The plaintiff brings this action to foreclose on a mortgage dated June
8,1987, between Carlisle Car Wash, Inc., Mortgagor, and Virginia E. Fry,
Mortgagee. Said mortgage is recorded in the Cumberland County Recorder of
Deeds Office, Carlisle, Pennsylvania, at Mortgage Book 868, page 9, with a date
of recording of June 8, 1987, and a copy is attached hereto as Exhibit A.
4. The land subject to the mortgage is located at 400 South Hanover St.,
Carlisle, PA. The legal description is attached as Exhibit B.
5. There has been no assignment of this mortgage.
6. The defendant is the real owner of the land subject to the mortgage.
7. The mortgage is in default because no mortgage payment has' been
made for a period in excess of thirty days, with the last payment being made
on November 8, 1998. The following amounts are due on the aforesaid
mortgage:
(a)
Balance as of November 16, 1998
$47,257.47
(b) Interest of 10% due for the months of
Decemhet,1998--'
January, February, March and April, 1999,
In the amount of $393.81 per month $ 1,969.05
(c) Attorney's commission of 5% of the unpaid principal
amount as authorized by a Note signed by the Defendant
on June 8, 1987, and attached hereto as
Exhibit C, in the amount of $ 2.363.00
Balance due
Plus costs of suit
$51,589.52
WHEREFORE, the plaintiff prays that Your Honorable Court enter
judgment for the amount due of $51,589.52 plus costs of suit, and any interest
that may accrue pending the resolution of this action, and order foreclosure
and sale of the mortgage property.
DOUGLAS, DOUGLAS & DOUGLAS
BY~ (n. y.. r. ~~(M.----~
Geo ge F. Douglas, III, Esq re
Attorney for Plaintiff
(
HORTGAGE
THIS INCENTURE, MADE THE Sth day of June, In the year of our Lord one
thoueand nIne hundred dShty-eeven (19B7).
BETWEEN
CARLISLE CAR WASH, INC., a corporatIon duly Incorporat.d und.r the laws
of the Commonwealth of Pennsylvania, having a principal business addross
of 702 quentIn Road, Lebanon, Penneylvanla, 17042, hereInafter called the
"Mortgagor", whether singular or plural,
AND
ANDREW Z. FRY and VIRGINIA E. FRY, husband and WIfe, of Shippensburg,
Pennsylvania. hereinafter called the "Mortgagee II . whether singular or
plural.
WHEREAS. the Hortgagor ow.s the Mor~gagee the prIncIpal aum of ONE HUNDRED
TWEN1'Y-FIVE THOUSAND DOLLARS ($125,ODO.00), lawful mon.y of the Unlt.d Statea. Thl.
debt Ie .vIdenced by Mortgagor'. Note bearing .ven date her.with, which provIde. for
monthly payments with the full debt. if not paid aar11er. due and,payable on June 8,
2002. Thts mortgage secures to Mortgagee (s) the repay...nt. of the debt evIdenced by
the Note. with interest, and all renewals" extensions and modificat1on8l snd (b)
performance of Mortgagor's covenants and agreements under this Mortgage and the Note.
NOW, THIS INDENTURE WITNESSETH that the Mortgagor, in condderatIon of the
principal indebtedness. and to secure the payment thereof t" and all other SUms duo or
to become due under said Note and this Mortgage. and the performance of all of the
other provisions hereof and of said Note on the part of the Mortgagor to be per-
formed, dOBs h_rlby gr.1nt. bargain. Sill, a11en. release, convey, and confirm unto
the Mortgagee: .
ALL. that cercain tract or parcel of land and premises he,reinafter particularly
described. with improvements erected thereon. situate, lying an4 being 1n the Borough
of Carlisle, County of Cumberland and State of Pennsylvsnla:
BEGINNING at sn iron pIn at the point of int.rs.ction of the We.t Une of South
Honover Street, also known as Penna, Traffic Rout. 34, (eighty (BO) feet wIde) and
the South line of W.st BaltImore Street (forty-fIve (45) f.et wIde); th.nc. ext.ndlng
aloog the West I1n. of South Hanover Street South thirteen (13) degree. forty-five
(45) minutes West nInety-eIght (98) f.et to a railroad' .plke at the foot of a maple
tree; thence extending along property now or late of James E. Carothers. North
sev.nty-flv. (75) d.gr..s forty-five (45) minut.s Weet one hundr.d thIrty (130) feet
to an iron pin; thence extending along property now or ~ate of Lester F. Adams 'snd of
the hdrs of Walt.r Stuart, d.c....d, North thirteen (13) d.gre.. forty-five (45)
minut.s East nInety-eight (98) feet to an iron pin on the South I1ne of Weet
Baltimore 5'trut; the.ncI extending along aame, South levanty-five (75) degrles
forty-fIve (45) mlnutee Eaet one hundred thIrty (130) feet to the piece of BEGINNING.
DEING the ..me whIch Andre... Z. Fry et 01, by their
recorded :tn Cumberland County Deed Book If ", Volume
CarlIsle Car Wa.h, Inc., the Mortagor herein.
TOGETHER wIth sll and Bingulsr the buildlnge and improv.m.nte, etreets, lande,'
811.y., pal'.S.I, way., vaeer, vater-coura.., rightl, liberti.I,.privilege" heredit-
emente, and appurtenence. wheteoaver hereunto belonging or in sny way appertslning,
end the reverlione and reminders snd rents, ilsues, snd profits thsrlof.
deed deted June' g, 19S7, snd
, at Pogl ~ conveyed to
roOK flG8 PA~E 9
MANK, WEIOU: AND Pf.AKINS ~ 4Y10flllN(VI AT LAW.. III E....T KINO STIIlEET _ SHlPPENSUUAO. ,..... 11211
EXHIBIT A
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TO HAVE AND TO HOLD the etoreooid premlo.., property, ond Hlr1d1tementa hereby
granted, or mentioned and intended 80 to be, with the appurten6inCel, unto the Mort-
gage., to and for the only proper use and behoof of the Mortgagee, forever.
PROVIDED ALWAYS, thlt 1f the Mortgogor ahall promptly pay all aumo bacom1ng dua
undar oa1d Note and th1. Mortgaga and ohall perform all tha other prov1a10no here1n
and tn said note contained, then the estate hereby granted shall cease, terminate,
and become void, but otherwise ahall remain in full force and effect.
AND THE MORTGAGOR HEREBY FURTHER COVENANTS AND AGREES AS FOLLOWS,
I. In the event tha= any of the afor..oid payments of pr1nc1pal and 1ntereat
ahall become overdue for a pertod' 1n exceas of IS' daya, the Mortgagor shall pay to
the Mortgages a "late charge~' .q,f tU~~.,fieEI''lllF.uq%)' of the peyment so overdue.
2. The Mortgagor shall,/1f requestedoy t~& Mortgagee, also pay to the Mortgag_
ee, concurrently with the aforesaid installments of principal and interest, ln8tall-
ments on account of '"the annual taxes and w8teE.' rents and sewer rents assessed or to
be assessed against the mortgaged premises and . the premiums on all POUcies of
insurance held by the Mortgagee pursuant to the provisions cf Paragraph 4 hereof. 1n
smounts sufficient to permit the Mortgagee to pay said taxes, water rents, sewer
rents. ar:d insurance premiums as and when they bec:omedue. Such installment payment:s
may be used by the Mortgagee for the purposes designated at such time or times as the
Mortgagee 1n its sole discretion may determine and be' held and accumuloted by the
Hortgagee in a common escrow account, Bnd any Inctlme therefrom may be retained and
used by the Mortgagee for 1ts own benef1t.
3. The Mortgagor shall psy before they shall becoms deHnquent, or shall
procure the discharge or release of. all taxes, water and sewer rents, charges,
Claims, assessments, lIens, and encumbrances now or hereafter assessed which with
respect to the mortgaged prem1sea shall or m1ght have pr10r1ty 1n l1en. or payment to
the 1ndebtedness secured by thb Mortgage, and shall exh1b1t the receipts for the
same to the Mortgagee on or before September 1 of each year.
4. The Mortgagor ahsll keep sll bulld1ngs and improvements now or hereafter
erected upon the mortgaged premises insured for the benefit of the Mortgagee against
loss by fire and other casualties and hazards requ.1red by the Mortgagee. upon terms
and in companies and amounts satisfactory to the Mortgagee, and shall assign and
deliver all such policies of- insurance to the Mortgagee as additional secur.1ty. The
Mortgagee may settle all cfaims under all such policies and may demand. receive. and
. receipt for all moneya becom1.g payable thereunder. The proceed. under any poUcy
shall be pa1d by the 1nsurer to the Hortgagee, and the Mortgsgee 1n lOs sole d1s-
CretiOR may apply the amount 80 collected, o'r any part thereof, toward the payment of
the principal indebtedness and other sums. covenanted by the Mortgagor to be paid
hereu.nder, ,",hether or not then due and payahle,together vith interest. thereon. or
toward the alteration, reconstruction, repair, or restoration of the damaged portion
of the mortgaged premises or 'any portion thereof.
s. The Mor~nJlor shall keep the mortgaged premises and improvements thereon in
good condition and repair, and sha11 not remove. demOlish, or materially alter the
buildings or improvements ontha mortgaged premises, nor commit or Buffer waste with
respect thereto. The Mortgagor shall comply With all law8, rules, regulations, and
ordinances'made or promulgated by lawful authority which may now or hereafter become
appHcable to the mortgaged prem1ses. The Mortgagor shall perm1t tho' Mortgagee's
agents at any reasonable time and from time to time to enter upon the mortgaged
premises and the bui.ldings and improvements '. thereon.' erect~d, _for the purpose of
1n.pecting and appra1s1ng the same. The Hortgagor shell, not teke or pet1Jl1t any
action with respect to the mortgaged premises which will in any manner impair the
secur1ty of th1s Mortgage.
6. In the event of the failure of' the Mortgagor to pay the taxes. water and
sever rents. charges, claims, assessments, liens, or encumbrance. described in
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v.....I<. WEIGLE "'NO Pt!:~l'\INS - ATrOANf.V$ AT LAW _ liS tAST KINO STReET _ SHlPPtN~RIJR'i p" I'~'~'
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Paragraph 3 hereol, or to furnish and pay for the insurance as'set forth in Paragraph
4 hereof, or to keep the mortgaged premises in 'good condition and repair as provided
in Paragraph 5 hereof. the Mortgagee may. at its option, pay any or all such items,
together ~ith penalties and interest th~reon. snd procure and pay for such insurance
and recpairs; and the Mortgagee may at any time and from time to time advance such
additional sum or sums 8S the Mortgagee 1n ita sole discretion may deem necessary to
protect the security of this Mortgage. All such sums so paid or advanced by the
Mortgagee shall immediately and without demand be repaid by the Mortg.gor to the
Mortgagee. together with interest thoreon at tho rate of {nCeust provided 1n the
Note, .nd .h.ll be .dded to the principal indebtednea. .eeured by this Hortgage. Tbe
production of a receipt by the Mortg~gee shall be conclusive proof of a payment or
advance authorized hereby, and the amount and validity'thereof.
7. The security of this Mortgage ah.ll extend to and cover eny addition.l lo.ns
made by the Mortgagee to the Mortgagor at Bny time or times 'hereafter, provided that
no such loans shall exceed in the aggregate the Bum of all amounts which the Mortga-
gor has heretofore paid on account of the princ~pal of' the original indebtedness and
of any prior additional 10an8.
B. If the Mortgagee retains the serv1c:es of counsel in order to cure any
default under this Mortgage or said note, an attorney's commission amounting to Five
per cent (5%) of the principal indebtedness I but in no event less than the sum of
Five Hundred Doll.ra ($500.00) eh.ll be payable by the Mortgagor to the Mortgagee and
.hall be .ecured hereby. The Mortg.gor sh.ll pay the eo.t of the title .e.reh .nd
all other costs incurred by the ~lortBagee in connection' with proceedings to recover
any sums secured hereby. The Mortgagor shal'. also pay any reasonable charge of the
Mortgagee i~ connection with the satisfaction of this Mortgage of. record, including
any recording costs. .
9. If the Hortg_gor .h.ll f_U to p.y .ny .um required to be paid by the
Mortg.gor under said note or this Mortgsge within Thirty (30) d.y. sfter the ..me
becomes due and payable, or if the Mortgagor shall fail to perform any other pro-
vision hereof or said note on the part of the Mortgagor to be performed, or shall
transfer title to the mortgaged premises without the prior written approval of the
Mortgagee: (a) the Mortgagee may apply on account of the indebtedrless hereby secured
the balance of accumulated installment payments made by the Mortgagor for taxes,
water re.nts, sewer rents, and insurance premiums under Paragraph 2 hereof; (b) the
whole unpaid balsnce of the principal indebtednes., together with .11 interest
thereon and all other sums hereby secured, shall become due and payable immediately,
without notice to the Mortg.gor. snd .h.ll be recover.ble by the Mortg.gee forthwith
or Bt any time or times thereafter, without stay of execution or ~ther process; (c)
the Mortgagee may take pos.e.sion of the mortgsged premi.e. .nd (d) the Mortgagee may
forthwith exerci.e .11 other right. and remedi.. provided in this Mortg.ge .nd in
..id not., or which may be av.il.ble to the Mortg.gee by Law. .nd sll .ueh rights and
remedies shall be cumulative Bnd concurrent and may be pursued singly, successively,
or together, at, the Mortgagee t 8 Bole d~B,cretion, and' may be exercised' 88 often as
occasion therefor shall occur.
10. If the 1I0rC'g.gee .h.ll take po....sion of the mortgaged premise. .a provided
1n Paragrap1110-hereof_,. the Mortgagee may: (8) hold, mansgD, operate and'lease the
same, to the Mortgagor or'any other person or pers~ns, on such terms and for such
periods of time ae the Hortgagee may deem proper, and the provisions .of any lease
made by the Mortgagee pursuant he'reto shall be valid and binding upon the Mortgagor
notwithstanding the fact that the Mortg8Re.' 8 right of posses don may terminate or
this Mortgage may be .atisfied of record prior to the Ixpiration of the term. of such
lease; (b) make such alterations, additions, 1~provement., renoVat1on8~ repairs and
feplacements thereto &8 the Mortgagee may' deem proper; (c) demolish any part Of all
ot thl improvement. aitu.to upon the mortgaged premi.e. which in the judgment of the
Mortgagoe may be in unuto condition and dangoroue to lifo and property' (d)
remodel such improvement. DO A. to make the eame availabl. in vhol. or in part for
roi b68 fACf 11
MARK. WEIGLE AND Pf:RKlNS. ATTOR"'II!:VS"'T .....w. 111 EAST 1'(''''0 STAfET. SHIPF[NSBURO..P.... 11'~7
busine.s purposs. or mult~pie dwelling purpo.es, snd (.) collect ths rsnt., issu.s,
and profit. arising from the mortgBged pre..1sOl, POlt due 'snd thereafter becoming
due, and apply the lame, 1n such order of priority as the Mortg.g.. may determine, to
the payment of all charges Bnd commission. incidental to the collection of rents and
the management of the mortgaged premise. and all other Bums or charge. required to be
paid by the Mortgagor hereunder. In addition to the psyment of such charg.. and
cOMissions, the Mortgagee shall bs entitled to retain Six por cent (6%) of such
rents, ~8sue8, and profits in payment for the services of the Mortgagee 1n relation
to the premises. All moneys advanced by the Hortgagee for the purposes aforesaid Bnd
not repaid out of the .rents collected shall immediately and without demand be repaid
by the Mortgagor to the Mortgagee, together with interest thereon at the rate provid-
ed in tho note, and'shsll be sdded to the principsl Indeb,tedness horeby secured. The
taking of pOBoessslon and collection of r~nt8 by the Mortgagee a8 aforesaid shall not
be construed to be an affirmation of any lease of the mortgaged premises or any part
thereof, and the Mortgagee or any other purchaser at any foreclosure snle' may (if
otherwise entitled to do 80) exercise the right to terminate any such lease as though
such taking of pOBoession and collection of rents had not Occurred.
11. For the purpose of procuring possession of the mortgaged premises 1n the
event of any default hereunder or under said note, the Mortgagor hereby authorizes
and empowers any attorney of any Court af record tn the Co~onwealth of Pennsylvania
or elseWhere, 8S Qttorney for the Mortgagor and all persons claiming under or through
the Mortgagor, to aign an agreement for entering 1n any competent court an amicable
action 1n ej ectmen't for possession of the mortgaged premisefl and to appear for and
confess judgment againat the Mortgagor,. and against ,all persons claiming under or
through the Mortgagor, for tlie recoverY' by the Mor'tgagee of possession of the same,
without any stay of execution, for which this Mortgage, or a copy thereof verified by
affidaVit, shall be a sufficient warrant; and' thereupon a writ of possession may be
issued forthwith, without any prior writ or proceeding whatsoever. The Mortgagor
hereby relesses the Mortgagee. from all errors and defects whatsoever in entering such
action and judgment and in causing such writ or wries to be issued, and hereby agrees
that no writ of en'or, appeal, petition to open, or' strike aff judgment, or other
objection shall be filed or msde with respect thereto. If for any re.son after such
action has been commenced the same shall be discontinued or posaession of the
mortgaged premises shall, remain in or be r:8stored to the Mortgagor, the Mortgagee
shall have the right for the same default or any subsequent dsfault to bring one or
more further amleable actions as above provided to recover possession of the
mortgaged premises, The Mortgagee may br1ng'such amicable action 1n ejectment before
or after the institution of foreclosure proceedings upon this Mortgage, Or after
judgment thereon or on said note, or after a sale of the mortgaged premises by the
sheriff.
12. Th. granting of an exten.ion or extensions of time by the Mortgss.e with
respect to the performsnce of any provision of this Mortgsge or said note on ths part
of the Mortgsgor to be. performed, or the .tskins of any additlonol security, or the
waiver by the Hortgagee or fsilure by the Mortgsgee to enforce any provision of thia
Mortgage or said note or to declare a default ~ith respect 'thereto, shall not operate
as 4 waiver of any subsequent default or defaults or affect the right of the Mortgagee
to exercise all rLsbtg or remedies stipula~ed.herein and therein.
13. The Mortgagor waives tho right of inqui.ition on all property levied, upon to
collect the indebtedness hereby secured and does voluntarily condemn the same, and
authorizes the p.rothonotary to enter such condemnation; and the Mortgagor alao
waives and release all laws, now In force of hereafter enacted, relat.1.ng to ex-
emp'tlon, appraisement or stay of execution.
14. The obligation of esch snd ever}' party hereto, and also the authority and
povers conferred herein, shall be joint snd ,everal and shall inure to the benefit of
and bind each and every party hereto and its, "hie, ,her, and their, and each" of their,
respective heirs, executors, administrators, Buccessors, and 4ssigns.
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f.nor &(;8 l~tE 1.~
....A.h'{ .....f.IC,I.C ANfl rlJlto';l~~ - A'rUI<INCV~ AT I.AW. I'~ CA!.' KJl~U !tlf~I,rT _ "HI!".I,N'.Il"I~r,. I'A I'....'
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15. The rights and obligations under this Martgas_ and Note are intended to
remain in the original 1I0rtgagor, This 1I0rtgage shsll not be assumed by any third
parey Without the express written Consent of the Hortgagee, his heirs, or ass1gns.
If all or any part of the mortgaged premises Of any lnterest in it 1s sold or trans-
fetrad without Mortgagee'. prior written consent. Mortgagee may. at hie option,
require i~ediate payment in full of all auma aecured by this 1I0rtgage. The Mortg.gor
he,.ln shall have the right to pay on any date an amount greater than that speclCled he,efn without.
IN WITNESS WHEREOF, the 1I0rtaagor ha. axacutld thaaa pre.ent. tha day and yaar firat
above wrlttan.
'p,emlum or penalty,
Attest:
Secretory. Carole M. Frat!"a Ii
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COMMONWEALTH OF PENNSY~~~IA
COUNTY OF CUllBERLAND .,~.:o
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On this, the 8th day, of June, 1987, bafore me, a Notary Public in and for .aid
.....
County and State, the unci~r8igned officer, penonally appeared Frederick C. F,atta,olf,
.,
who .cknowledged himaelB. to ba tha President of Carlisla Car Wash, Inc., a
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corporation, and that h. au such P:esldent, being authorized to do 80, executed the
foregoing instrument for the purpo.a. tharein containad by signing the name of tho
corporation by ,him.alf ae Pra.ident.
IN WITNESS WHEREOF, 1 haraunto .at my hand .nd official .aal.
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AI.I. that certain tract or parcel ot land and prellioes hereinafter pa!'ticulorly
described, with improvements erected thereon, B~tuate, lying and being in the Borough
of Carllsle, County of Cumberland and State of Pennsylvaniaz
RF.GtNNING at an iron pin at th. point of intersection of the West line of South
Hanover Str..r., also known 88 Penna. Traffic Route 34, (eighty (80) feet wide) and
tho South Ilno of We.t B.ltlmoro Stroot (forty-five (45) foet wldo); thenoe extondlng
along the West line of South Hanover Street South thirteen (13) degrees Corty-five
(45) mlnuto. We.t ninety-eight (9B) foot to 0 r.Urond .plke .t tho foot or . maph
tree; thence extending along property now or lote of James E. Carothers, North
.evonty-Uve (75) dOBre.. forty-five (45) ..tnutes W..t one hundred thirty (130) foot
to an Iron pin; thence Extending along property now or late of Lester F. Adams and of
the heirs of Walter Stu.rt, d.o....d. North thirteen (13) dogr... forty-Uv. (45)
minute. Ea.t ninety-eight (98) feet to sn Iron pin on the South Uno or Wost
Bsltlmore Street; thence extending .long ..me, South .eventy-flve (75) degreee
forty-five (45) minutes East one hundred thirty (130) feet to the place of BEGINNING.
BEING the same which Tremarco Corporation, by Its deed dated S.ptember 29, 1972, snd
recorded In Cumberland County Deed Book "X", Volume 24. .t P.ge B68. conveyed to
Andrew Z. Fry snd Vlrgini. E. Fry, his wife, two of the Grantor. herein.
SAM A. MATZNER and Oa,bara J. Matzner, husband end wife, and Joel Dlel,'ck end Janella
G. Dlolrlck. husband and Wife, JoIn In thl. conveyance to wolve any Interest they may hsve
In the above-descrlbed premises pursuant to an Agreement of Sale dated July 26, 1985, and
recorded In Cumberlend County MI.c. Record Book...2$.., at Palle..It2K..
EXHIBIT B
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:~~t;~~~;:'~;t;:ft~c~;;~~.;':i;,::~,i:i;~G':~y:%;;~:fn..' . . "'. ?.:i.f}::~:}:,:;:g';;lMili;Pt\;':,t:~:;J.M~sid~~'!~1;~i
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NOTE
I:
June 8, 1987
FOR VALUE RECEIVED, the undersigned (hereinafter whether singular or plural called
I: the "Maker") promises to pay to the order of ANDREW Z. FRY and VIRGINIA E. FRY.
:t hereinafter whether singular or plural, called the "Payee"), at 405 Westover Road, ':'.;,,::,
" Shippensburg, Pennsylvania, or at such other place aa the holder hereof may from time
to time designate in writing, the sum of ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS
($125,000.00), lawful money of the United States, with interest at TEN PER CENT (10%)
per annum, as follows: ONE THOUSAND THREE HUNDRED AND FORTY-EIGHT DOLLARS AND
TWENTY-EIGHT CENTS ($1,348.28) on or before July 8, 1987, and a like amount on
the same day of each month thereafter, and the balance of princ1parannncer,iiiE-tnen
r'if"mainfiiIL.ii:i1pafe-"-on "-.rtine- 8, 'Z1l1T2"~, the said installments to be applied first to
interest on the'unpaid balance of principal and the balance thereof to be applied on
account 0: principal.
This note is secured by a Mortgage (hereinafter called the "Mortgage") of the
Maker bearing even date herewith. All of the terms, conditions, and provisions of
the Mortgage are incorporated herein by reference and are hereby made part hereof,
i! and any breach or violation thereof constitute a breach or violation of this note.
:i In the event any of the aforesaid payments of principal or interest shall become
Ii overdue for a period in excess of fifteen (15) days, the Maker shall pay to the
holder hereof a "late charge" of FIVE PER CENT (5%) of the payment of principal and
i' interest so overdue.
j
, If the Maker shall fail to pay any sum required to be paid under the terms of
it
., this Note or the Mortgage wi thin thirty (30) days after the same becomes due and
"
payable, or if the Maker shall fail to perform any other provision hereof or of the
d Mortgage on the part of the Maker to be performed, then the balance of the debt
evidenced by this note, with all arrearages of interest thereon and all other sums
due hereunder, shall at the option of the holder hereof, become and be due and
payable Immediately without notice to the Maker, and execution or suit may issue
forthwith for the collection of the same, together with the costs of suit and an
attorney's commission of Five Per Cent (5%).
The Maker hereby irrevocably authorizes and empowers any attorney of any court
;
. of record in the Commonwealth of Pennsylvania or elsewhere to appear for and confess
I judgment agfainstd therlaker at."hany time or times and as of any term, for the whole or
., any part 0 sai amounts, wit or without declaration, with costs of suit, ..ithout
,! stay of execution, and with Five Per Cent (5%) of the unpaid principal amount thereof
i' as an attorney's fee, but in no event less than $500.00. The authority herein
granted to confess judgment shall not be exhausted by any exercise thereof but shall
continue from time to time and at all times until full payment of all ssid amounts.
The Maker waives the right of inquisition on all real estate, voluntarily condemns it
'I and agrees that real estate may be sold on a writ of execution. The Maker waives the
benefit of any laws or rules of court now or hereafter in effect relating to
exemption, appraisement or stay of execution.
" The Maker and all endorsers of this note severally waive presentment, demand,
protest, and notice of nonpayment. The maker and the endorsers and guarantors, if
any, hereof, and all others ..ho may he liable for all or any part of the indebtedness
evidenced by this note consent to any number of renewals or extensions of the time of
pa.yment hereof without notice to any of those parties. The granting, without notice,
of any extension of time for the paj1llent of any sum due under this note or the
Mortgage or for the performance of any covenant, condition, or agreement thereof, or
the taking or relesse of other or additional security shall in no way release or
discharge the liability of the Maker or of any such endorsers or guarantors.
\A'll.ftl'l.. WE.IQLi;O: ..>.!'On PERK:1'I.S _ .....-:-.-c.f..r~EY-EXHJ..B.1o'l'-C,,~ c...s- K,I>oG S"':"~l!:k-:' _ ~l-'l"''''E""~:',,q3. p,.t. .;;>5"
'.
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VIRGINIA E. FRY,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
V.
CIVIL ACTION-LA W
99-2497
CARLISLE CAR W ASH,INC.,
Defendant
CERTIFICATE OF SERVICE
I hereby certify that I have this day served the foregoing PRELIMINARY OBJECTIONS
TO DEFENDANT'S NEW MA TIER AND COUNTERCLAIM by mailing a true and exact
copy addressed to the following:
Harry W. Fenton, Esquire
REILLY, WOLFSON, SHEFFEY, SCHRUM & LUNDBERG
1601 Cornwall Road
Lebannon, P A 17042
717/273-3733
Respectfully submitted,
Date~ 11/10
Jo
Legal Assistant
37 East Pomfret Street
Carlisle, PA 17013-3313
717/245-2851
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VIRGINIA E. FRY
V.
CARLISLE CAR WASH,
INC.
IN THE COURT OP COMMON PLEAS
OF CUMBERLAND COUNTY, P A
CIVIL ACTION - LAW
NO. 99-2497 CIVIL TERM
REPLY TO NEW MA TIER
8. Denied. At no time did Virginia E. Fry cause or contribute to any
of the alleged claims for environmental damage.
9. Denied. The plaintiff is not estopped from proceeding with the
foreclosure action. In addition, she did not transfer property to the defendant
subject to claims for environmental damage. On July 26, 1985, Andrew Z. Fry
and Virginia E. Fry entered into an Agreement of Sale with Sam A. Matzner and
Joel Dietrick for the sale of the property in question. On May 5, 1987, Sam A.
Matzner entered into an Agreement of Sale with Frederick C. Frattaroli or
designee, 702 Quentin Road, Lebanon, Pennsylvania, for the sale of the subject
property, said property to be taken as is. A copy of the Agreements of Sale are
attached hereto as Exhibit "A" and Exhibit "B". On June 8, 1987, a deed
transferring the property was signed by Andrew Z. Fry, Virginia E. Pry, Sam A.
Matzner, Barbara J. Matzner and Joel Dietrick and Janetta G. Dietrick as
Grantors, and Carlisle Car Wash, Inc., a Pennsylvania corporation, with a
business address of 702 Quentin Road, Lebanon, Pennsylvania, Exhibit "C".
10. Denied. There is no justification for the suspension of payments on
the mortgage.
WHEREFORE, it is prayed that judgment be entered in favor of the
plaintiff and against the defendant.
ANSWER TO COUNTERCLAIM
1. Admitted.
2. Admitted.
3. Denied as stated. On July 26, 1985, Andrew Z. Pry and Virginia E.
Fry entered into an Agreement of Sale with Sam A. Matzner and Joel Detrick for
the sale of the property in question. On May 5, 1987, Sam A. Matzner entered
into an Agreement of Sale with Frederick C. Frattaroli or designee, 702 Quentin
Road, Lebanon, Pennsylvania, for the sale of the subject property, said property
to be taken as is. A copy of the Agreements of Sale are attached hereto as Exhibit
"A" and Exhibit "B". On June 8, 1987, a deed transferring the property was
signed by Andrew Z. Fry, Virginia E. Fry, Sam A. Matzner, Barbara J. Matzner
and Joel Dietrick and Janetta G. Dietrick as Grantors, and Carlisle Car Wash, Inc.,
a Pennsylvania corporation, with a business address of 702 Quentin Road,
Lebanon, Pennsylvania, Exhibit "C".
4. Denied. The property in question was transferred to the counter-
plaintiff, which contained no hidden or environmental damage. The counter-
plaintiff was aware that the property in question contained underground fuel
storage tanks and had been used as a filling station and car wash prior to this
purchase.
5. Denied. The counter-defendant had no knowledge of any adverse
environmental conditions or damages with respect to the subject matter
property.
6. Denied. The answer to paragraph 5 is incorporated herein and
reference is made thereto.
7. Denied. At no time did the counter-defendant cause any
environmental damages to the property while she was in possession of it.
8. Denied. After reasonable investigation, the counter-defendant is
unable to determine the truth of the averment, and proof thereof is demanded.
9. Denied. After reasonable investigation, the counter-defendant is
unable to determine the truth of the averment, and proof thereof is demanded.
COUNT I
10. The answers to paragraphs 1 through 9 are incorporated herein and
reference is made thereto.
11. Denied. At no time was the counter-defendant, Virginia E. Fry,
negligent with respect to the operation and maintenance of the property in
question, nor did she personally operate or maintain the property in question,
and at no time did she permit the discharge of petroleum or other hazardous
materials from underground storage tanks.
12. Denied. After reasonable investigation, the counter-defendant is
unable to determine the truth of the averment, and proof thereof is demanded.
13. Denied. After reasonable investigation, the counter-defendant is
unable to determine the truth of the averment, and proof thereof is demanded.
14. Denied. At no time did the counter-defendant violate the
aforementioned environmental statutes.
15. Denied. After reasonable investigation, the counter-defendant is
unable to determine the truth of the averment, and proof thereof is demanded.
16. Denied. After reasonable investigation, the counter-defendant is
unable to determine the truth of the averment, and proof thereof is demanded.
WHEREFORE, it is prayed that the counterclaim of the counter-plaintiff
be dismissed.
COUNT II
17. The answers to paragraphs 1 through 16 are incorporated herein
and reference is made thereto.
18. Denied. After reasonable investigation, the counter-defendant is
unable to determine the truth of the averment and proof thereof is demanded.
19. Denied. The c.ounter-defendant has no knowledge that at any time
petroleum or other hazardous materials were discharged from underground
storage tanks.
20. Denied. After reasonable investigation, the counter-defendant is
unable to determine the truth of the averment and proof thereof is demanded.
21. Denied as an incorrect legal conclusion to which no response is
necessary.
22. Denied as a legal conclusion to which no response is necessary.
WHEREFORE, it is prayed that the counterclaim of the counter-plaintiff
be dismissed.
23. Paragraphs 1 through 22 are incorporated herein and reference is
made thereto.
24.
25.
materials.
Denied as a legal conclusion to which no response is necessary.
Denied. At no time did the counter-defendant discharge hazardous
26. Denied. After reasonable investigation, the counter-defendant is
unable to determine the truth of the averment and proof thereof is demanded.
27. Denied as an incorrect legal conclusion to which no response is
necessary.
WHEREFORE, it is prayed that the counterclaim of the counter-plaintiff
be dismissed.
VERIFICATION
I, George F. Douglas, ill, Esquire, certify that I am authorized by my client
to sign this verification, that my client is not available to sign personally within
the time limits permitted, and that the statements and facts set forth in the
attached document are true and correct to the best of my knowledge, information
and belief. I understand that false statements made herein are made subject to
the penalties of 18 Pa. C.S.A. 4904 relating to unsworn falsifications to
authorities.
~I~~
Ceorge F. Douglas, ill
Dated:
~01 '1../,' I~~q
BETWEEN
, AGREEMENT OF SALE
THIS AGREEMENT, made this ~ay at ~ , 1985,
ANDREW Z. FRY and VIRGINIA E. FRY, his w~fe, 01'405 Westover Road,
Shippensburg, Franklin County, Pennsylvania, hereinafter called the
Seller.
AND
SAM A. MATZNER and JOEL DETRICK, of P.O. Box 914, Carlisle, Cumberland
County, Pennsylvania, hereinafter called the Buyer.
WITNESSETH:
lows:
The parties hereto, intending to be legally bound mutually agree aa fol-
1. The Seller hereby agrees to sell and convey to Buyer, who hereby agrees
to purchase from Seller subject to the. performance by Buyer of all of the covenants,
provisions and conditions hereafter set forth, all of the assets of a car wash
business known aa Follow Charlie' Car Wash and Gas Center, 400.South Hanover Street,
Carlisle, Cumberland County, Pennsylvania, and consisting of real estate, equipment,
and inventory as more fully' described herein, for the full sum of ONE HUNDRED FORTY-
FIVE THOUSAND ($145.000.00) DOLLARS.
2. The purchsse price of ONE HUNDRED FORTY-FIVE THOUSAND ($145,000.00)
DOLLARS shall be allocated as follows:
A.
Real Estate - NINETY~FIVE THOUSAND ($95,000.00) DOLLARS
Equipment and Inventory - FIFTY THOUSAND ($50,000.00) DOLLARS
I
I
follows:
B.
3.
The real estate to be conveyed herein is more particularly deacribed as
ALL that certain tract or parcel . of land and premises h~reinafter particularly
described, with improvements erected thereon. situate, lying and being in the Borough
of Carlisle, County of Cumberland and State of Pennsylvania:
BEGINNING at an iron pin at the point of intersection of the West Une of South
Hanover Street, also known as Penna. Traffic Route 34, (eighty (80) feet wide) and
the South line of West Baltimore Street (forty-five (45) feet wide); thence extending
along the West line of South Hsnover Street South thirteen (13) degrees forty-five
(45) minutes West ninety-eight (98) feet to a railrosd spike at the foot of a maple
tree; thence extending along property now or late of James E. Carothers, North
seventy-five (75) degrees forty-five (45) minutes West one hundred thirty (130) feet
to an iron pin; thence extending along property now or late of Lester F. Adams and of
the heirs of Walter Stuart, deceased, North thirteen (13) degrees forty-five (45)
minutes East ninety-eight (98) feet to an iron pin on the South line of West
IBaltlmor~ Street; thence extending along same, South sevent~-five (75) degrees
forty-five (45) minutes East one hundred thirty (130) feet to the place of BEGINNING.
-1-
""'ARK, WEIGL.E AND PERKINS - ATTORNEVS AT LAW - I IS EAST KING STREET _ $HIPPENSDURG. PA. 11'25'
Lx.l1th! f- if rI f,
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"
BEING the same which Tremsrco Corporation, by its deed dated September 29, 1972, and
recorded in Cumberland County Deed Book "X", Volume 24, at Page 868, conveyed to
Andrew Z. Fry and Virginia E. Fry, his wife, the Sellers herein.
SUBJECT to the following conditions:
1. Any state of facts and conditions that an accurste survey and personal inspection
of the premises would disclose.
2. Easements, conditions, restrictions and reservations of record, existing unen-
cies, if any, and tsxes and assessments both general and speci~l. if any, which shell
fall due and payable following the date hereof.
4. The inventory and equipment to be conveyed herein by Seller to Buyer is
more particularly set forth in "Exhibit A" which is attached hereto and made a part
hereof.
5. The full purchase price of ONE HUNDRED FORTY-FIVE THOUSAND
($145,000.00) DOLLARS shall be paid by the Buyer to the Seller as follows:
A.
The full purchase price in the amount of ONE HUNDRED FORTY-FIVE
THOUSAND ($145,000.00) DOLLARS to be psid by the Buyer to the Seller
in monthly installments of ONE THOUSAND TWO HUNDRED SEVENTY-TWO
DOLLARS and FORTY-EIGHT CENTS ($1,272.48) beginning on September 26.
19J5. and on the twenty-sixth day of each month thereafter for a
period of one hundred nineteen (119) months together with a fine 1
payment of ONE HUNDRED THIRTY-TWO THOUSAND THIRTY DOLLARS and
SIXTY-FIVE CENTS ($1'32,030.65) on September 26, 1995, representing
financing at ten percent (10%) per annum based on a thirty (30) year
amortization schedule with the balance due and payable ten (10) years
from September 26, 1985. The parties further agree that Buyer ahall
have the right to pay on any date an smount or amounts greatar than
those payments specified above without premium or penalty.
I
II
c.
Upon the payment in full of the finsl psyment of purchase price in the
amount of ONE HUDNRED THIRTY-TWO THOUSAND THIRTY DOLLARS and
SIXTY-FIVE CENTS ($132,030.65) and upon fun compliance with the
teI'1lls. conditions snd provisions set forth herein, Seller agreu to
execute and deliver to Buyer a general warranty deed for the above
described real estate and a B111 of Sale for all. items of equipment
and inventory.
The parties agree that all real estate taxes ahall be prorated aa of
All realty transfer taxes shall be divided equally between Seller and
6.
July 26, 1985.
Buyer.
7. Buyer shall assume and be responsible for the payment of all utilitiea
and all real estate taxes after July 26, 1985.
8. Buyer shall assume and be responsible for the maintenance of add
premises in good order and repair from July 26, 1985. and shsll keep and hold Seller
safe and haI'1ll1ess. from any and all claims for work and labor don. or .aurhla
-2-
MARt<. WEIGLE AND PERKINS _ ....TTORNEVS AT LAW - 11S EAST t<ING STREET - SHlPPENS8lJlllG, PAl. ,,,,,
.." .
furnished in connection with maintaining the said premises in good order and repair.
No major improvements or alterations shall be made to the premises without the
written conaent of Seller, which consent shall not be arbitratily or unreasonably
withheld.
9. Buyer agrees to maintain a standard fire and casualty insurance policy
on the above described real eatate and its contents in an amount at least equal to
the coverage maintained by Seller as of ths date of execution of thill lIgraement.
Buyer further agrees to have Seller listed as loss payee on said policy of insurance
as Seller's interest may sppear and to provide Seller with proof of inaurance ae of
the date of execution of this agreement snd upon Seller's request thereafter.
10. Buyer agrees that Seller or their authorized agent, shall have the
right at all ressonsble hours of the day, to enter the premises for the purpose of
inspection to determine whether Buyer has complied with the terms hereof.
11. This agreement is not assignable by Buyer, nor shall Buyer rent or
sublet the above described premises or any part thereof, without the express written
consent of the Seller.
12. The failure of Seller to insist on strict performance by Buyer, of the
terms of this Agreement shall not be construed as a waiver, release or relinquishment
thereof.
13. This Agreement represents the entire agreement between the parties
hereto, superseding any and all prior agreements or understandings between the
parties hereto. and there are no agreements. understandings. restrictions, warran-
ties. or representations between the parties other thsn those set forth herein as
herein provided for.
14. The parties agree that this Agreement shall be recorded in the Office
of the Recorder of Deeds of Cumberland County, Pennsylvsnia:
15. In the event Buyer shall default for sixty (60) days in any of the
terms and provisions of this Agreement; Seller shall have the right to terminate this
Agreement and to demand immediat~ possession of said premises upon sixty (60) days'
written notice, and thereupon all rights and obligations under this Agreement shall
cease and terminate, and a~l payments made by Buyer shall be retained by Seller as
liquidated damages.
16. If Buyer is in possession of the premises at the time the Seller
should declare the Agreement terminated, Buyer hereby authorizes any attorney, aa
attorney for them, to sign sn Agreement for entering in any competent court, an
amicable action and judgment in ejectment against Buyer and all persons claiming
under them, for the recovery by Seller of possession of the premises, for which this
shall be a sufficient warrsnt; and thereupon a writ of possession may issue forth-
with, without any prior proceedings whatsoever, and Buyer hereby releases Seller from
all errors and defects whatsoever in entering such action of ejectment, or caudng
such writ of possession to be issued, or any proceeding thereon, or concerning the
same, and hereby agrees thst no writ of error, objection or exception, shall be made
or taken thereto. .
-3-
MARt<, WEIGLE M~D PE.RKINS ... ATTORNEYS AT LAW... lIS EAST KING STREE.T ... SHlPPEN5BURG, PA, 17257
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17. In the event Buyer ahall default for ~ 1!iO) daya in any of tho
terms, conditions, and provisions of thh Agreement, the parties hereto further agree
as follows:
1. Any and all court costs and reasonable attorney feea incurred by
Seller ahall be the sole responsibility of the Buyer.
2. Seller shall be entitled to the use for parking purposea only of a
macadam, strip of real estate approximately fifte.n (15) feet wide and
sixty (60) feet long which lies adjacent to the Westarn boundary of
the above described real estate and is a part of the real estate known
as 24 West Baltimore Street, Carlisle, Cumberland County, Pennsyl-
vania. Seller's right to use said strip of real estate shall continue
only as long as Seller owns the premises known aa 400 South Hanover
Street, Carlisle, Cumberland County, Pennsylvania. Seller's right to
use said strip of real estate shall be subject to a certsin sidewalk
easement more fully described in Cumberland County Deed Book "0",
Volume 27, at Page 826.
18. Upon the execution of this Agreement, Seller shall deliver to Buyer
actual possession of the above deacribed real estate, inventory and equipment.
19. Seller warrants to Buyer that all items of equipment including but not
necessarily limited to the hydraulic pumps, the conveyor system, and the gas pumps
are in good WOrking~r ~J~[_J~!YNL~~ 1985. Seller further warrants or guarantees
all of the equipmen c ~'a"Pl?~this Agreement of Sale for a period of ninety
(90) calendar days rom July 26, 1985, with malfunctions of equipment due to negli-
gence, neglect, vandalism, or accident excepted. Said warranty does not extend to
the normal routine maintenance of said equipment which shall be the sole responsi-
bility of the Buyer herein, nor to minor repairs to equipment (repairs not exceeding
a total cost including parts, labor and supplies of FOUR HUNDRED ($400.00) DOLLARS.
Repairs to equipment which are covered by this warranty shall'be made by Seller or at
Seller's expense within five (5) business days after Seller has been notified of the
malfunction. Seller in no way shall be responsible under the above described ninety
(90) day warranty period for loss of profits to Buyer or for damage to vehicles
caused by s malfunction or breakdown of equipment.
20. Seller agrees to give Buyer upon the execution of this Agreement of
Sale an Affidavit of No Creditors which shall satisfy in full the requirements of the
Pennsylvania Bulk Sales Act,
21. Covenant Not to Compete. Fot and in consideration of the purchase
price, Seller agrees and covenants that they will not, for a period of five (5) years
from the date of closing, engage directly or indirectly, on behalf of, or in conjunc-
I tion with, either personally or as a shareholder of othervise in the ownership,
operation or establishment of any csr wash business, or related enterprise in the
Horough of Carlisle, Cumberland County, Pennsylvania. If the provisions hereof or
portion hereof shall be deemed ilhgal or unenforceable by a court of competent
jurisdiction, such provision shall be deleted here from or reduced in scope and this
agreement interpreted and enforced as amended.
II
"
-4-
MARK WEIGLE ANO PERKINS. ATTOANEVS AT LAW. 115 EAST KING ST~ItET _ SMIPPE,NSBURG. PA. t1'2ST
22. Seller hereby essigna and trensfers to Buyer the fictitious name uasd
y Seller of "Follov Charlie Car Wesh and Gae Center". Seller further esre.. to
execute any and all legel documenta which may be required to aflect said tranafar of
ame by Buyer. Any end all costs incurred or to be incurred in connection with add
transference of neme ahall be the sola responsibility of the Buyer herein.
23. Representations and Warranties.
A. Seller has good and marketable title to all of the asaeta being
sold hereunder, and vill convey the same at closing, frea and
clear of any leese, mortgage, pledge, lien, charge, security
interest, encumbrance, title retention or other restriction.
B. All of the equipment, property and assets used in Seller's busi-
ness and to be transferred hereunder is in good working order and
repair for the conduct of business in the ordinary course, and
the same vill be in good condition, working order and repsir when
possession of the business is delivered to Buyers.
C. All salaries, social security payments, withholding taxes, un-
employment insurance, sales tax and other taxes and aSS8ssmlntll
levied, assessed, imposed upon or payable by Seller or s..used
upon or with respect to any of the property to be transferred
hereunder as a result of this transaction, will be paid in full
through and including the transfer of possession of same to
Buyer, and all returns, forms or taxes required to be filed with
the required agencies shall have been properly filed and paid sa
of the date of ,closing or will be so filed and paid illllllediate1y
thereafter when due. Seller further agrees to indemnify snd hold
harmless Buyer from and against any liabilities for same as well
as against any liabilities arising prior to closing which may now
or hereafter be assessed or imposed against Buyer in connection
with any of those items set forth in this Agreement.
D~ There is no claim, litigation, proceeding or investigation,
pending or, to the best knowledge of Seller, threatened by or
before any court, public official, governmental commission,
board, administrative agency, or other legal or quasi-legsl forum
or agency, against Seller or Seller's business or the s88ets of
Seller, which would affect the ownership or operation of the
Seller's business. There are no orders or violation notice. of
or from any person or governmental agency or official and no
proceedings pending in sny court of competent jurisdiction,
criminal or civil, relating to the business or pending against
the Seller, the property, or the Seller' ~ property transferred
hereunder, which would affect the ownership or operation of the
Seller's business at the premlses. Seller holds in good .tandlng
all government. permits, certificates, licenses and other
authorizations necesssry to conduct the operatlon of his ear waah
business in the msnner and in the areas in which such buslness is
-5-
MARK. WEiGLE AND PERKINS _ ....TTORNEVS AT LAW _ 115 EAST KiNG STREET - St'l.PPIEN$BuRG. PA. HZsr
presently being conducted. and euch permita, certificatu.
licenaea or other authorizations sre velid and in full forca and
effect. There are no actions or proceedinge for tha ravocation
thereof or any other action or proceeding by or bafore any
official, governmental department. cOllllli..ion, board. buruu.
sgency. court or instrumentality which would hsve an effect upon
the Buyer's ability to conduct buaineu at tho promi..e after
closing.
E. Seller will not incur sny additional indebtednesa prior to
closing except such indebtedness as may adse as a result of
normal snd usual transsctions in the ordinary course of Seller's
business.
F. No event or trsnssction will occur which vill adversely affect
the financial condition of Seller except ouch normal and usual
transactions au occur in the ordinary courae of Seller's
business.
G. Seller vill not dispose of or in any manner encumber or hypo-
thecate any of Seller's assets or property, except in the
ordinary course of business.
H. On the transfer date there will be no judgment in existence
against Seller anil no law suit pending or threatened sgainat
Seller.
1.
The books and records of Seller perteining to the operation of
Follow. Charlie Car Wash snd Gas Center shsll be svailable
inspection and review by Buyer snd his accountant at
reasonable time prior to or subsequent to closing.
for
any
24. Tsx Clearance. Seller agrees to obtain clearances with respect to all
federal, state, county and municipal retail sales. purchase, end/or use taxes,
employment insurance taxes, personal property taxes and clearance vith respect to any
taxes, liens or matters that may be required by Buyer or by lav or that may affect
the property or assets sgreed to be sold hereunder and shall promptly fila all
releases, notices and reports of every kind or nature which may be required.
25. Risk of Loss, If at any time any of the property sbld hereunder prior
to transfer shall be lost or damaged. through no fault of the Buyer, except for d8llUlge
or loss through use and vear in the ordinary course of business, Buyer can declare
the contract null and void and vill receive back the deposit paid on account.
26. Construction. Thie Agreement shall be construed sccording to the lewe
of the State of Pennsylvania.
27. The parties hereto sgree thst this Agreement of Sale may not be
amended except by a vriting executed by sll of the parties hereto.
28. The parties hereto acknowledge that SeUer has paid a real estate
cOCllll19sion to Century 21 Breneman Md Associates of 430 South Hanover Street,
Carlisle, Pennsylvenia. To protect Seller 1n the event of Buyer's default within
-6-
M".RM. WEIGLE AND PERKINS _ ATTORNEVS AT l.AW _ 115 EAST KINO STREeT - 511lPPENSBURG, PA. "251
'-
five (5) years of the execution of thia Agreement of Ssle Buyer sgreea to give Seller
a second bond and mortgage upon their real eatate known as 24 West Bsltimore Stre.t,
Carlisle, Cumberland County. Pennsylvania, upon the following terma and conditiona.
A.
Said bond and mortgage shsll be written upon an non-intereat bearina
ba da .
Principal of bond and mortgage shall be TEN THOUSAND ($10,000.00)
DOLLARS.
~.,.~
t\,lI'fr
\'v'
The principal of this bond and mortgage obligation' ahall diminiah at
the rate of TWO THOUS~,l?__ ($2,000.00) DOLLARS per year for each year
that the Buyer herein ~ their obligation under this Agreement of
Sale and lawfully remain. in possession of the "bove described real
estate.
D. The principal of this bond and mortgage obligation shall also be
diminished by the value of any permanent improvements made to the
sbove described premises by the Buyer as determined by three (3)
competent real estate appraisers to be mutually agreed upon by the
parties hereto.
E. This second mortgage obligation shall be satisfied immediately upon
the expiration of' five (5) years from the date of this Agreement of
Sale or payment in full to the Seller of the agreed upon purchase
price of ONE HUNDRED FORTY-FIVE THOUSAND ($145,000.00) DOLLARS,
whichever event shall first occur.
29. The parties hereto ~gree that all accounts receivable as of July 26.
1985. with respect to the business known as Follow Charlie Car Wash and Gas Center
shall be the sole property of the Seller - all accounts payable as of July 26. 1985
shall be the sole responsibility of the Seller herein.
30. The parties hereto intend to legally
lexecutors, adm1n1straeors. successors and assigns.
IN WITNESS WHEREOF. the parties hereto have
seals the day and year first above written.
,
bind themselves. their heirs,
hereuqto set their hands snd
Q~ ~deJ:~
(SEAL)
EAL)
(SEAL)
(SEAL)
....D... wFU'tLE
-7-
AND P.RKIN' _ ATTORNEV> AT LA'" _ ... EAST KINO STREET - SHIPPEN.RUIOO. PA. IT."
.
A(mf:I':MENT FOil HIE SALE AND PURCHASE OF REAl. t:STATE
rhi. 101111 IrrUlllltlCl1Ilrtl Illld dl11lloved lor, but nnlltl'dclcod 10
ule by mrlllhclI {lr the G'Ult, 11..,lshIllR ROIud ur REAI.TORS- "
I ^O~NT fOl< Sm.l.fR "__h '-1- 5UB ^O~NT fOR Sf!.!.fR --'--
.---.-. "A. I.ICllNSIiU "~)Klm --- ---+_ Ph. L1CF.NSI1Il hROKER ..+_.. __
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-"7
19_._....
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N- ;0 ~.'n1lH~r."rA.~ =ni~h:~ rorm-Act IM-Doubl, Shott
~bi~
MADE THE ~
01 Ollr Lord on, tholl..and nine hltndred
lleebf
.w.vo' ~
in tM WIar
BETWEEN
't7
ANDREW Z. FRY and VIRGINIA E. FRY.
husband ond wife, of 405 Weetover
Road, Shlppenoburs. Franklln County, Penn.ylvanla. ond SAM A. MATZNER
and BARBARA J. MATZNER of 24 Baltlmora Stro.t, Carll01.. 17013. and
JOEL DIETRICK and JANETTA G. DIETRICK, of 10 Oak Lane, Rechanlc.bura.
PennsylvAnia, 17055. hereinafter called the
and
Grantor ·
CARI.ISLE CAR WASH. INC. t a corporation duly incorporated under the hUll
oC the Commonwealth of Pennsylvania, having II principal bus.tnes8
addres8 of 702 Quentin Road. Lebanon, Pennsylvania, 17042, hereinnfter
called th.
Grantee :
W1TNRSSETlI, tAnl. in cOllsidcrotion 0' ONE
($1.00)
in hand paid. the receipt .ohcreo' II h.rebv acknowlcdued, the said uranlor. do
and convcv to the ,al'd grantee, its successors and 08signs,
AU. that certain tract or parcel of land and premines hereinaHer particularly
described, with improvements erected thereon, B~tuate, lying and being in the Borough
of Corll.1., County of Cumb.rland .nd Stata of P.nnoylvonlo,
DoUG",
he..bv urant
8EGINNING at on iron pin at the point of intersection of the West line of South
".nov.r Str..t, aloo known a. P.nn.. TrafUe Rout. 34, (o1shty (aO) re.t wide) and
the South Un. of Woot Baltlmor. Str.et (forty-fh. (45) fo.. wld.); th.nce .xtendlng
along the West line of South Hanover Street South thirteen (13) degrees Corty-five
(45) minute8 West ntnety-eight (98) feet to 8 railroad spike at the foot of 01 maple
tree; thence extending along property now or late of James E. Carothers. North
.ev.nty-Uvo (75) d.ar... forty-Hv. (45) mlnute. w..t on. hundred thirty (130) fe.t
to an iron pin; thence extending along property now or late of Lester F. Adoms and of
tho ho1rs of Walt.r StURrt. d.c....d. North thirt..n (13) d.sree. forty-five (45)
minut.a Ea.t nlnety-01sht (98) f..t to an iron pln on the South 11na of W..t
aaltlmora Str..t; th.nee .xt.ndlng alona aame, South a.v.nty-flv, (75) d.sr.eo
forty-ilve (45) mlnut.. Ea.t ona hundred thlrty (130) feet to the plac. of BEGINNING.
BEING the ..me whlch Tremarco Corporation, by it. deed dat.d S.ptember 29, 1972. and
recorded ln Cumherlond County De.d Book "X". Volu... 24. at Page 868, convey.d to
Andrew Z. Fry and Vlrglnl. E. Fry, hla wlfe, two of the Grantora h.roln.
SAM A. MATl'.NIlR and Da,ba,a J. Malzner, husband and wire, and Joel D1el,lck and Janella
O. DietriCk, husband and wire, Join In thl. conveyance to waive eny Interest thoy may have
In the above"i!e.crlbed premises pursuant to en Agreement or Sale dated July 26, 1995, and
recorded In Cumbe,l.nd County Misc. Record Book ~, at Page M[..
(-,,..\.:11 (1f "0-.11':.'1'\'1"''''/' .~
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GEORGE F. DOUGLAS, III, ESQUIRE
ATTORNEY !.D. # 61886
DOUGLAS, DOUGLAS & DOUGLAS
27 West High St.
P.O. Box 261
Carlisle, Pa. 17013
Telephone: 717-243-1790
Attorney for Plaintiff
VIRGINIA E. FRY : IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNA
VS. : CIVIL ACTION LAW
CARLISLE CAR WASH, INC. : NO. 99-2497
PLAINTIFF'S MOTION TO COMPEL ANSWERS TO
INTERROGATORIES ADDRESSED TO DEFENDANT
Plaintiff, Virginia E. Fry, moves this court, pursuant to 4019 of the
Pennsylvania Rules of Civil Procedure, for an order compelling the Defendant to
provide full and complete answers to Plaintiff's Interrogatories, Nos. 1 through
11.
I. The Plaintiff filed a complaint against the Defendant on April 26, 1999.
2. The Plaintiff served a set of Interrogatories on the Defendant on March
17, 2000.
3. All information requested by counsel for the Plaintiff is relevant and
matelial to the issue of liability in this matter and/ or may lead to other
admissible evidence.
4. All information requested by counsel of the Plaintiff is not available
from any other source.
5. In excess of three months have lapsed since the date of service of the
discovery upon the Defendant, and no response has been received to date.
WHEREFORE, it is respectfully requested that the Defenant be ordered to
provide full and complete responses to the Plaintiff's Interrogatories.
Respectfully submitted.
Douglas, Douglas & Douglas
b~ ~ C CfhunYn I'- ~
'George F. Dou;~~iIfu
Attorney for Plaintiff
June 28, 2000
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VIRGINIA E. FRY
V.
CARLISLE CAR WASH,
INC.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, P A
CIVIL ACTION - LAW
NO. 99-2497 CIVIL TERM
PROOF OF SERVICE
George F. Douglas, III, Esquire, being duly sworn according to law,
deposes and says that on July 7, 2000, he mailed a certified copy of the Order of
Court issuing a Rule on the defendant, Carlisle Car Wash, Inc., to show cause
why the relief requested in Plaintiff's Motion to Compel Answers to
Interrogatories Addressed to Defendant should not be granted, to Harry W.
Fenton, Esquire, Reilly, Wolfson, Sheffey, Schrum & Lundberg, 1601 Cornwall
Road, Lebanon, PA 17042-7460, counsel for the defendant. Rule returnable 20
days after service.
DOUGLAS, DOUGLAS & DOUGLAS
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t:. ~
eorge F. Douglas, III, squire
27 West High Street
Carlisle, PA 17013
717-243-1790
Sworn and subscribed to before me
this 7th day ofJuly, 2000.
qdblr. 'tJ( ~~'1
Notary
NotartalS.a1
Janel M. Lay. Notary Public
CarlIaI. 80m, Cumbol18nd County
My CcmmIsslon Expires June 26. 2003