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HomeMy WebLinkAbout07-73640 Johnson, Duffle, Stewart & Weidner By: Mark C. Duffie I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 mcd@jdsw.com Attorneys for Plaintiff KASTURBA, LLC, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 0?- -?3Lq c?v, l V. UNI-MARTS, LLC, CIVIL ACTION - LAW ; JURY TRIAL DEMANDED 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 Complaint and Notice 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mds adelante en las siguientes p6ginas, debe tomar accibn dentro de los pr6ximos veinte (20) dias despu&s de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacibn o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 Johnson, Duffle, Stewart & Weidner By: Mark C. Duffie I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 mcd@jdsw.com KASTURBA, LLC, Plaintiff V. UNI-MARTS, LLC, Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 0'2--7,24q awl CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendant COMPLAINT COUNT I - DEFAULT OF LEASE NONPAYMENT OF RENT AND NOW, comes the Plaintiff, Kasturba, LLC, by and through its attorneys, Johnson, Duffie, Stewart & Weidner, and files this Complaint and in support thereof avers as follows: 1. Plaintiff, Kasturba, LLC, is a limited liability company registered in the Commonwealth of Pennsylvania with principal offices at 5465 Westbury Road, Enola, Cumberland County, Pennsylvania. 2. Defendant, Uni-Marts, LLC, is a limited liability company registered in the Commonwealth of Pennsylvania with principal offices at 477 East Beaver Avenue, State College, Centre County, Pennsylvania. 3. Plaintiff is the owner of real property municipally known and numbered as 680 North Hanover Street, Carlisle, Cumberland County, Pennsylvania ("Premises"). 4. On October 21, 2004, Plaintiff acquired the Premises from State College Premier Rentals, a Pennsylvania limited partnership, an entity believed to be related to Defendant. 5. Plaintiff purchased the Premises based solely on and in reliance upon the income to be generated by the lease back set forth in paragraph 6. 6. On October 21, 2004, Plaintiff leased the Premises to Defendant under a Commercial Lease Agreement (Lease"), a copy of which is attached hereto and incorporated herein as Exhibit "A". 7. The Lease provides for a term of twenty (20) years commencing in October 2004. Accordingly, commencing from October 2007 monthly rental of $5,249.66 was due on the first day of each and every calendar month through September 2008. Further, the Lease provides for a two percent (2%) annual Lease escalation. 8. Defendant took possession of the leased premises in October 2004 in accordance with the terms of the Lease. 9. Accordingly, as of the filing of this complaint, the rent due under the Lease for the months of October and November, 2007 has not been paid as follows: 10/01/07 - Balance Due $ 5,249.66 11/01/07 - Balance Due 5,249.66 Total Due $10,499.32 10. Defendant, despite demands by the Plaintiff, has failed and still refuses to pay Plaintiff the sum of $10,499.32 or any part thereof being rent owing at this time. 11. It is unknown if or when Plaintiff can relet the Premises but should Plaintiff do so, per the terms of the Lease, Defendant is responsible for the cost of all repairs and renovations necessary to relet as well as reasonable brokerage and legal fees incurred. WHEREFORE, Plaintiff demands judgment against Defendants in the amount of $10,499.32, with interest from October 1, 2007 and such additional sums as may become delinquent by the time of judgment as provided in the lease (i.e. taxes, insurance, maintenance etc.) and costs and expenses of reletting the Premises. COUNT II DEFAULT OF LEASE DAMAGE TO LEASED PREMISES 12. Paragraphs 1 through 11 are incorporated herein as if set forth fully. 13. On September 12, 2007, William Long, Director of Real Estate for Defendant, notified Plaintiff by phone that Plaintiff has ceased conducting business at the Premises and will not pay any rent henceforth and further indicated that nothing further regarding the conversation would be reduced to writing. 14. Defendant damaged the leased Premises or otherwise breached the Lease by failing to surrender the leased Premises in substantially the same condition in which the same was leased to the Defendant. 15. The fair and reasonable costs for repairing the Premises are as of yet unascertained but believed to be in excess of $10,000.00. 16. Plaintiff has not yet taken possession of the Premises since the Defendant has not formally vacated the same and will in the future ascertain damages to the Premises for which Defendant is responsible. WHEREFORE, Plaintiff demands judgment against Defendant for all costs incurred with respect to repairing damages caused at and prior to the time Defendant vacated the Premises and or Plaintiff takes possession. COUNT III DEFAULT OF LEASE ACCELERATION OF RENT 17. Paragraphs 1 through 16 are incorporated herein as if set forth fully. 18. The Lease, in Paragraph XXI, provides as follows: If Tenant shall default for a period of ten (10) business days after Lessor has given notice of such default in the payment of any installment of rent.... Lessor at any time thereafter, at its option, exercises any one or more of the following remedies: d. Lessor may accelerate the rent due and payable for any remaining period of the term of this Lease, provided, however, that the Lessor must first give Tenant written notice of default and thirty (30) days from the date of the Notice to Cure. 19. On October 4, 2007, Plaintiff, through the law offices of Adler & Adler and William L. Adler, gave Defendant written notice of default dated October 4, 2007. A true and correct copy of said written notice is attached hereto and incorporated herein as Exhibit "B". 20. The thirty (30) day right to cure, as provided in the Lease, from the date of the written notice has expired and Defendant has made no effort to cure or even communicate with respect to the default or its intent to cure said default. 21. The property continues to be available for re-occupancy by Defendant and as such, Plaintiff's seeks an acceleration of the rent due under the Lease. 22. Remedies provided in the Lease are cumulative, not exclusive. WHEREFORE, Plaintiff demands judgment against Defendant for all accelerated rent due and owing under the terms of the Lease from October 1, 2007 through September 30, 2024. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: Mark C. Duffie 301 Market Stree P.O. Box 109 Lemoyne, PA 17043 (717) 761-4540 Attorney for Plaintiff VERIFICATION The undersigned says that the facts set forth in the foregoing document are true and correct. This verification is made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsifications to authorities. KASTURBA, LLC By: E DIE DELAVDIA, Member Dated: 2 D :315867 AGREEMENT OF LEASE St THIS AGREM T MADE THIS ZI DAY OF OCTOBER, 2004, BY AND BETWEEN KASITMA, LLC, a Limited Liability Company, having its principal office at 5465 Westbury Road, Enola, Cumberland County, Pennsylvania (hereinafter referred to as "LESSOR") AND LM-MARTS, LLC, a Limited Liability Company, having its principal office at 477 East Beaver Avenue, State College, Centre County, Pennsylvania. (hereinafter referred to as "TENANT") V TTNESSETH: Lessor, for and in consideration of the rents, covenants and agreement hereinafter set forth does hereby demise and lease unto Tenant, and Tenant does hereby hire and take, subject to the provisions. of this Agreement, the following real property and underground 'storage tanks and piping, together with buildings and improvements erected thereon (the real property and buildings and improvements erected thereon hereinafter being collectively referred to as the "Premises"), located at 680 N. Hanover St., Cumberland. County, Carlisle, Pennsylvania. To have and to. hold said Premises, subject as aforesaid, unto Tenant and its successors, and subject to 'the terms, covenants, conditions and agreements set forth herein, for an initial term Exhibit "A" of Twenty Years years, commencing on the "Commenmment Date", as hereafter defined, and ending Twenty Years from the Commencement Date. 1. COMN ENCEACaU DATE The "Commencement Date" of the term of this Lease shall be )2004. n. RENT Beginning on the Commencement Date, Tenant shall pay to Lessor and Lessor shall accept from Tenant as rent for the Premises the sum of FIFTY NINE THOUSAND THREE HUNDRED SIXTY TWO AND 48/100 Dollars ($59,362.48) annually, payable in equal monthly installments in the sum of FOUR THOUSAND NINE HUNDRED FORTY SIX AND 87/100 Dollars ($4,946.87) each on the first day of each and every calendar month during the term of this lease, subject to annual increase set forth below. If the term of this Lease commences on a day other than the first day of the month, the rent for the first andla.st months of the term shall be prorated. If the rental payment is more than ten (10) business davs late a 10% penalty will be assessed. r The above rent payments shall increase on each and every anniversary of the. Commencement Date at a rate of Two (2%) percent. M. OPTIONS TO RENEW Tenant shall have the option to renew this lease for One (1) successive term of Five (5). years by giving notice to Lessor by Ninety (90) prior to expiration date. Such additional term shall be on the same terms and. conditions as hereift contained, and the base rent for the each of the newly extended terms shall increase at a rate of Two (2 %) percent each year. IV. OCCUPANCY Tenant shall have the right to use the Premises for the purpose of a convenience store and./or self.-service or full service gasoline facility and for no other purpose whatsoever. Lessor shall after the fall execution and delivery of this Lease by Lessor and Tenant, deliver to Tenant a copy of the existing Certificate of Occupancy for the Premises showing that the Premises may lawfully be occupied and operated as a convenience store and gas station. Tenant shall be responsible for obtaining at its expense any other licenses, permits, or other documents or certificates required in order to occupy the Premises or to conduct its business. In no event shall the Tenant or anyone using or occupying the Premises or any portion thereof under Tenant carry on or permit any illegal or improper business or activities on the Premises, nor shall Tenant cause or permit any activities on the Premises, which constitute a nuisance. Except as otherwise provided in this Lease, Tenant agrees to take the Premises on an "as is" basis. V. TAXES ASSESSMENTS AND OTHER CHARGES Tenant will remain liable for the payment of all taxes, assessments, and other charges. R VI. CONTESTING B00SITIONS Tenant shall have the right to contest the amount or validity of any imposition by appropriate legal proceedings, provided, however, that this right shall not relieve, modify or extend Tenant's obligation to pay such imposition at the time and in the manner provided in paragraph IV. If, however, such proceedings shall operate to prevent the sale of the Premises, and if the Lessor shall so require, the Tenant shall furnish, at its own expens--, a bond in form and substance satisfactory to Lessor with a surety company satisfactory to Lessor, to cover the amount of the. contested imposition, and any interest, penalties and all costs and charges in connection with such proceedings for such period as, in the judgement of Lessor; such proceedings may be expected to take. Notwithstanding the furnishing of any such bond, Tenant shall pay any such 3 contested imposition and any interest, penalties and charges thereon if, in the judgment of Lessor, the Premises shall be in danger of being sold, forfeited or otherwise lost. Lessor shall join in any such proceedings, unless it shall not be necessary to do so, in order to prosecute such proceedings properly provided, however, that the Tenant shall fully indemnify Lessor to its satisfaction against all costs and expenses, including attorney's fees, in connection therewith, and provided further that Lessor shall not be subject to any liability for the payment of any costs or expenses in connection with any such proceedings brought by Tenant. VII. UTMITlES Tenant shall, following the commencement date, pay for all the utilities consumed on the Premises including, but not limited to, gas, water, sewer, telephone, trash removal and electricity. VIII, ASSIGNMENTS / SUBLEASE Tenant may sublet- or allow anyone other_than the..Tena attG-ase-the-Premises,-with Lessor's consent. Tenant shall. remain liable for the performance of this agreement hereunder. Tenant may not transfer or assign this Lease without Lessor's consent, not to be unreasonably withheld except: (a) to a new entity which controls, is controlled by, or is under common control with Tenant, or to a new entity resulting from the merger or consolidation with Tenant., or (b) in connection with a sale of all or a part of Tenant's assets Tenant shall provide sufficient notice to Lessor of any such event. Ig. INSURANCE (a) During the term hereof Tenant shall cause the building, and related improvements, including any alterations, replacements, changes and additions thereto, to be fully insured against .4 Jos s or damage by all risk property coverage. All such insurance shall be in an amount equal to 100% of the foil insurable value of the building and improvements. The term "fail insurable value" as used in this agreement shall mean the actual replacement cost subject to such reasonable deductible as Tenant may elect. (b) During the term of this lease, Tenant shall, at its own cost and expense maintain, with respect to the Premises, comprehensive general public liability insurance against claims for personal injury (including death) or property damage occurring upon, in or about the Premises (including the adjoining sidewalks and streets) in, a combined single limit of not less than $1,000,000.00 with $1,000.00 medical payments and with such reasonable deductible as Tenant may elect. (c) All policies of insurance shall be with insurance companies satisfactory to Lessor authorized to do business in the County and State where the subject Premises are situatA and shall name Lessor as an additional insured. All policies of insurance shall provide that notice shall be given by the insurance company to Lessor and Tenant at least 30 days prior to any termination or cancellation of such policy. Tenant shall fiunish Lessor with certificates of the insurance required to be maintained by Tenant hereunder, which certificates shall be marked "premium paid" or shall be accompanied by other.evidence of payment. X. CERTAIN RIGHTS OF LESSOR Tenant covenants and agrees that if Tenant shall fail at any time to make any payment or to perform any act on its part to be made or performed under this Agreement in accordance with the terms hereof, Lessor may, at its sole discretion, upon reasonable advance notice to Tenant, and 5 without waiving or releasing Tennant from any obligation of Tenant hereunder, make such payment or perform such act to the extent that Lessor may reasonably deem desirable in connection therewith, and employ counsel. All sums so paid by Lessor and all reasomble expenses in connection therewith, together with interest thereon at the rate of ten percent (10 %) per anmim from the date of such payment shall be payable to Lessor on demand. XI. REPAIRS AND MAINTENANCE Tenant covenants, at its sole cost and expense, to take good care of the Premises (including the structural portion of the building and it's related improvements) and to keep the same in good order and condition (subject to reasonable wear and tear) and to make promptly all necessary repairs thereto and all necessary alterations, renewals and replacements thereof, equal in quality and classification to the original work. For purposes of this Lease, the following shall be deemed to be "structural and/or extraordinary" repairs or replacements which shall be the responsibility of . the Tenant: (a) Replacement or major repairs in connection with the exterior walls (including doors, window glass and roof), interior load bearing walls, foundations, floors (including floor finishings such as tile, etc.). (b) Any alterations, repairs, or replacements which are required for compliance with building codes and any other statutes, ordinances, codes and regulations pertaining to the Premises (collectively, "Legal Requirements"); to the extent the Premises were iu violation of such Legal Requirements as existed on the Commencement Date. 6 (c) Any maintenance, repairs or replacements required in connection with the underground storage tanks and piping leased to Tenant hereunder. Notwithstanding the foregoing, the Lessor shall not be responsible for any such repairs, replacements, alterations, or work necessitated by the negligent or wrongful acts or omissions of the Tenant, its employees, agents, contractors, licenses, or visitors. All the same shall be the sole responsibility of the Tenant. Tenant shall keep the Premises and sidewalks adjoining the Premises in a clean and orderly condition, free of dirt, debris, snow and ice. Tenant, at its option, may leave all or any of its fixtures-- on-th&-Premises at the expiration or earlier termination of this Lease, in which event, such trade fixtures shall become the property of the Lessor. If, however, Tenant elects to remove all or any of its trade fixtures, Tenant shall repair all damages caused thereby. XII. ALTERAZZ?NS ANI? 1WRQVEMENTS Tenant is prohibited from making any structural alterations or improvements to the Premises without the consent of the Lessor, such consent not to be unreasonably withheld, - conditioned or delayed. XM. WASTE Tenant covenants not to do or suffer any waste, damage, disfigurement or injury to the Premises. No equipment shall be removed, revlaced or disnosed of w t o-ut-p # permission from Les.c- 7 XIV. LEGAL REOUIRMM TS Tenant covenants to comply with all law, statutes, ordinances, regulations or rules of any governmental authority having jurisdiction and applicable to the demised Premises (except to the extent compliance with such requirements is the responsibility of Lessor hereunder), and with the requirements of any insurer under any policy of insurance described in paragraph IX hereof. XV. LIENS Tenant shall not suffer or permit any mechanics liens or other liens to be levied or filed against the Lessor's interest in the Premises, and if any such liens should be fibd against the Premises, and if such liens should include or purport to include Lessor's interest therein, Tenant shall notify Lessor within 5 days and cause the same to be discharged of record within 20 days after notice has been given to Lessor. XVI. FIRE AND CASUALTY If the Premises are partially damaged by fire or other casualty, the damage shall be repaired as speedily as possible at the cost and expense of the Tenant. In case the building(s) on the Premises are so substantially damaged by fire or other: casualty as to render the same. »ntenantable, either party shall have the right to terminate this Lease by wr itten notice to the other given within sixty (60) days of such fire or other casualty. XVII. CONDEMNATION In the event that the entire leased premises shall be taken for public use by the City, State, Federal Goverment, public authority or other corporation having the power of eminent domain, then this lease shall terminate as of the date. on which possession thereof shall be taken for such 8 public'u'se,. or, at. the option of the Tenant, as of the date on which the Premises shall become unsuitable for Tenant's regular business by reason of such taking; provided, however, that if only a part of the leased premises shall be so taken, and the balance of the Premises remains suitable in . Tenant's judgment, for the conduct of its business, this Lease shall not terminate but shall continue in effect and the rent shall be reduced in proportion to the value and utility of the part of the Premises so taken. Such.abatement shall be applied retroactively to the date of taking. Tenant may participate in any award for such public taking only to the extent that it does not in any way _ . reduce the Lessor's proceeds from such taking. XVM. DAMAGE AND INJURY Tenant shall be in exclusive, control of the Premises as provided herein, and Lessor shall not, in any event whatsoever, be liable for any injury or damage to any property or to any personal happenin or occurring on or about the Premises, including, without limitation, any property of Tenant or any other person contained therein. Tenant shall indemnify and hold . .. _ harmaess Lessor from and against any and all claims, actions, suits; demands, liabilities, or losses whatsoever brought against, suffered or incurred by Lessor arising from the conduct or management, or from any work or thing whatsoever done in or about the Premises, or arising from any condition of the building or of any street, curb, or sidewalk adjoining the Premises or arising from any breach or default on the part of the Tenant in the performance of any covenant, condition or agreement on the part of the Tenant to be performed or observed hereunder or arising from any act of negligence of Tenant, its Aged, employees, contractors, licensees or visitors, and 9 from and against all expenses incurred on account of any such claim, action, suit, or demand, and Tenant shall, upon written notice from Lessor, resist or defend the same. XUL RENT ABATEMENT Except as provided in paragraphs XVII hereof, there shall be no abatement, reduction set off, or diminution of rent or charges allowed to Tenant hereunder, under any circus ances or for any cause or reason whatsoever, including but not limited to inconvenience, discomfort or interruption of business, for any reason, nor shall any of the foregoing be deemed to constitute an eviction of the Tenant hereunder. XX. ACCESS TO PREMISES Lessor, or its agents or any mortgagee of the fee title to the Premises, or any prospective mortgagee or purchaser of the Premises, shall have the right to enter the Premises- at all reasonable hours upon reasonable advance notice to Tenant for the purpose of inspection or performing any act which Tenant may have failed to perform in accordance with the provisions of this Agreement. XXI. DEFAULT If the Tenant shall default for a period of ten (10) business days after Lessor has given notice of such default in the payment of any installment of rent(Lessor shall not be required to give such notice more than twice in a twelve mouth period), or any other sum or sums provided for under this agreement as the same becomes due and payable, or if Tenant fails to perform any other obligations herein, for a period of thirty (30) business days after Lessor has given notice of such default (provided, however, that if such violation is of the type that the same cannot be fully remedied within thirty (30) days then the violation shall not be an enforceable event of default 10 hereunder so long as Tenant commences to cure such violation within the thiuy (30) day period and thereafter proceeds diligently and in good faith to fully cure the violation), or if the Tenant shall remove or.attempt to remove or express or declare any intention to remove any of the goods and chattels from the said Premises (except in the ordinary course of business) or should execution be issued against the Tenant directing a sale of all of Tenant's assets, or should bankruptcy proceedings commenced by or against'the Tenant, or an assignment be made by Tenant for the benefit of creditors or a receiver. appointed for Tenant due to Tenant's insolvency, in addition to all other remedies available to Lessor at law or equity, Lessor at any time thereafter may at its option exercise any one or more of the following remedies: a. Lessor may terminate this Lease and all the estate of Tenant in the Premises by giving Tenant five (5) days' notice of termination, and Tenant shall thereupon surrender the Premises in the same condition and with the same effect (except as to Tenant's continuing liability for damages) as if the full Lease term had expired, and if Tenant shall fail to surrender the Premises, Lessor may use such force as necessary to enter, including the breaking of locks, and may remove and store any of Tenant's property found onthe Premises at Tenant's expense, without service of notice or resort to legal process (all of which Tenant waives) and without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby;. b. with or without terminating this Lease, as Lessor may elect, Lessor may reenter and repossess the Premises, or any part thereof, and relet, or attempt to relet; any or all parts thereof upon such terms and conditions and to such persons or entities, for such uses, and for such period or periods, of time as Lessor in Lessor's sole discretion, shall determine, including a term beyond 11 the original expiration date of this Lease. For the purpose of such reletting, Lessor may make ?y repairs, alterations, redecoration or additions to the Premises to the extent Lessor determines to be desirable or convenient, and the cost of such work shall be charged and payable by Tenant on demand as additional rent hereunder, as well as reasonable brokerage and legal fees incurred by Lessor. However, Lessor shall not be responsible or liable for any failure to relet the Premises or any part thereof, or for any failure to collect any rent upon such reletting. C. Lessor,may pay or perform for the account.of Tenant any obligation or work to be paid or done by Tenant pursuant to the provisions of, this Lease which Tenant has failed to pay or do, and. Lessor may reenter and repossess such part of the Premises as may be necessary to perform such work. Tenant shall pay to Lessor on demand as additional renfthe amount so paid by Lessor or expended by Lessor to do the work or otherwise cure the default by Tenant, together with interest on amounts expended at the rate of 15 % per a nnurn until paid. Notwithstanding the requirement, if any, that Lessor give notice to Tenant as a condition to the occurrence of a default, in -an emergency where there is an immediate threat to the Premises unless- payment is made or work is done, Lessor may pay or perform obligations on behalf of Tenant which Tenant has failed to pay or perform after notice to Tenant as much in advance as practicable (if at all) under the circumstances prior to Lessor's payment or performance on behalf of Tenant. . d. Lessor may accelerate the rent due and payable for any remaning period of the term of this Lease, provided, however, that the Lessor first gave the Tenant written notice of default, and thirty (30) days from date of notice to cure. In addition, to the extent that the Tenant's default requires more than thirty (30) days to cure, despite diligent efforts by the Tenant, 12 the cure period shall be extended so long as the Tenant continues to make a good faiifh and diligent effort to cure the default. Except as provided in this Lease, Tenant thereby waives arequirement of a demand for rent due in connection with a notice to quit or to seek possession. Tenant hereby waives aay right to receive demand for rent, the service of any notice to quit or notice of intention to re-enter provided for in any statute, or of the institution of legal proceedings for that purpose, and in addition waives any right of redemption or re-entry or repossession, or to restore the operation of this. Lease if it is terminated or if Tenant is dispossessed by any judgment or by warrant of any court or judge in the case of re-entry or repossession by Lessor, or in the case of expiration of the Lease term. Tenant in addition waives any and all benefits of any and all laws now or hereafter in force or effect exempting property of Tenant from liability for rent or for debt. Neither the failure by Lessor to insist upon the strict performame of any covenant, agreement or condition of this Lease or to exercise any right or remedy with respect thereto, nor the acceptance of -any full or partial rental payment or other compensation payable hereunder; shall constitute a waiver of the breach of any such covenant, agreement or condition of this Lease. Lessor notwithstanding any such failure or acceptance of payment shall have the right thereafter to insist upon the strict performance by Tenant of any and all terms, covenants, agreement, conditions and provisions of this Lease to be performed by Tenant. There shall be no waiver of any term, covenant, agreement, condition or provision hereof except by written agreement of the party to be charged with the waiver. The rights and remedies given to Lessor in this Lease and by law or ,equity are_,s=arate and cumulative, and no one of them, whether or not exercised by Lessor, shall be deemed to be in exclusion of others as provided for herein or by law or equity. In the event of a breach or threatened breach by Tenant of any provision of this Lease, Lessor shall have the right of an injunction and the right to invoke any remedy allowed at law or in equity in addition to other remedies provided for herein. All remedies contained in this Lease shall be cumulative and concurrent. If Lessor shall pursue any remedy, it shall not be deemed to be a waiver of the right to seek any other remedy that may exist. X M. WAIVERS- No failure of the Lessor to insist on strict performance of any term of this agreement or to exercise any right or remedy upon a breach hereof, and no acceptance of full or partial rent during the continuance of any such breach shall constitute a waiver of any such breach or of such termor provision. No breach by Tenant of any term or provision of this agreement shall be waived except by written instrument- executed by Lessor, and no such waiver shall be deemed to be a waiver of any subsequent breach of the same or of any other term or provision of this agreement. TENANT'S CERTIFICATES Tenant shall, from time to time, within ffteen (15) days after Lessor's request, execute and deliver to Lessor a recordable written instrument(s) certifying that this Lease is unmodified and in fc11 effect' (or if there have been modifications, that it is in effect as modified), and the dates to which rental charges have been prepaid by Tenant, if any, and whether or not Lessor is in default of any of its obligations hereunder, along with such additional provisions as may be reasonably 14 requested by any mortgagee, purchaser or assignee of Lessor. Tenant agrees that such statement may be relied upon by any mortgagee, purchaser or assignee of Lessor's interest in this Lease or the Premises. DIV. HOLDING OVER This Lease shall expire absolutely and without notice on the last day of the Term, provided that if Tenant, with the prior written consent of Lessor, retains possession of the Premises or any part thereof after the termination of this Lease by expiration of the Term or otherwise, a month-to- month tenancy shall be deemed to exit, and Tenant shall continue to pay the Base Rent and Additional Rent due hereunder. If such holding over exists without Lessor's prior written consent, Tenant shall pay Lessor, as partial compensation for such unlawful retention, an amount calculated on a per diem basis for each day of such continued unlawful retention, equal to the '. current Base Rent for the time Tenant thus remains in possession. Such payments for unlawful retention shall not limit any rights or remedies of Lessor resulting by reason of the wrongful holding over by Tenant or create any right in Tenant to continue in possession of the Premises. XXV. NOTICES All notices, demands, requests, approvals and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed sufficiently given if sent by recognized overnight courier service, or by United States Registered- or Certified mail, postage prepaid, retry receipt requested to the following address: 15, A. IF TO LESSOR TO Xasturba, I.LC 5465 Westbury Road F.nola, PA 17025 B. IF TO TENANT, TO Ti-M PRENMES AND TO: Ifni-Marts, LLC. Real Estate Dept. 477 East Beaver Ave. State College, PA 16801 Notices given in accordance with this section shall be deemed to have been given (a) if sent by recognized. overnight courier service, one day after sending; or (b) if sent by United States Registered or Certified mail, three days after ailin . Either party may, from time to time, by written notice to the other, designate a different address. XXVI. TRANSFER BY LESSOR In the event of any transfer or transfers of the interest of Lessor in this lease (except a transfer by way of security) the Lessor herein named, or any subsequent Lessor, shall be automatically freed and relieved from and after the date of such transfer of.all liability as respects the performance of any covenants or agreement on the part of Lessor to be performed hereunder; provided, however, that any funds in the possession of the then-Lessor shall be turned over at the time cf such transfer to the transferee; and provided further, however, that the then-Lessor shall remain liable for any amount or sums which became actually due and owing to Tenantby Lessor prior to such transfer. 16 XXM. OU1ET ENJOYMENT Lessor covenants and agrees that Tenant upon paying the annnai rent and performing and observing all the other covenants, agreemients and conditions of this agreement to be performed and observed by Tenant, shall quietly hold, occupy and enjoy the Premises during the term hereof, without hindrance or interference by Lessor or any person claiming under Lessor; subject, however, to the terms and provisions of this agreement. . XX,VM. SIGNS Tenant may, at its own risk, and in accordance with the local zoning ordinances, erect signs, including pole signs, concerning the business of the Tenant and agrees to maintain said signs in a good state of repair, and save the Lessor harmless from any loss, cost and damages as a' result of the erection, maintenance, existence or removal of the same, and shall repair any damages which may have been caused by the erection, existence; maintenance or removal of such signs. At the end of the term of this lease, Tenant shall remove the same and restore the Premises to substantially the same condition as existed prior to the erection thereof. XXIX. RELEASE FROM LIABILITY Tenant releases Lessor from liability for any personal injury or damage to property of Tenant, Tenant's. employees or business invitees not arising from the negligence or intentional acts of Lessor or Lessor's agents or employees. Lessor shall not be liable for any injury or damage caused by water, rain, snow or ice that may leak or flow from whatever source into or about the Leased. Premises or the building within which the Leased Premises is located. Notwithstanding the foregoing, Tenant and. Lessor hereby release each other from any and all liability or responsibility to anyone claiming by way of subrogation or otherwise for any loss or damage to property covered by any insurance then in force (or required hereunder to be in force). The foregoing release of liability is conditioned upon the inclusion in the respective insurance policies of a provision stating that such release will not adversely affect said policies or prejudice the rights of the insured(s) to recover thereunder. XXX. MISCELLANEOUS A. - The covenants, conditions and terms of this agreement shall be binding upon and inure to the benefit to the parties hereto, their respective successors and assigns. The remedies and rights of Lessor hereunder are cumulative and are not intended to be exclusive of any other rights or remedies to which Lessor may be otherwise entitled. B. This Agreement represents the entire understanding of the parties with respect to the . subject matter hereof, and there are no understandings of any sort in addition thereto, and this Agreement shall not be modified except by a writing execated by both of the parties hereto. C. All of the covenants by Lessor and Tenant hereunder shall be deemed and construed to be "conditions" as well as "covenants." D. All references herein to Lessor and Tenant indicate the persons who, from time to time, occupy the position, respectively, of Lessor and Tenant. Whether the neuter, masculine or feminse is used, each shall include the other and the singular shall include the plural and the plural the singular unless the context shall plainly require otherwise.. 18 E. Tenant shall look solely to the Premises and the rents derived therefrom for the enforcement of any obligations hereunder or by law assumed by or enforceable against Lessor, and no other property or other assets of Lessor shall be subiected to levy, execution or other enforcement proceeding for the satisfaction of Tenant's remedies or with respect to this Lease, the relationship of Lessor and. Tenant hereunder or Tenant'.s use and occupancy of the Premises. XXXI. NET LEASE IT .IS THE PURPOSE AND INTENT OF LESSOR AND TENANT THAT THIS AGREEMENT SHALL BE DEEMED AND CONSTRUED TO BE AN ABSOLUTELY NET LEASE AND IN NO CIRCUMSTANCE AND UNDER NO CONDITION, WHETf?R NOW EXISTING OR BERFAFTER ARISING, AND WHETHER wlTHIN OR BEYOND THE PRESENT CONTEMPLATION OF THE PARTIES, SHALL LESSOR BE REQUIRED TO MAKE PAYMENT OF ANY KIND WHATSOEVER, OR BE UNDER ANY OTHER OBLIGATION OR LIABII= HEREUNDER, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. 30M. ENVIRONNOEWAL Tenant hereby represents and warrants to the Lessor that the Underground Storage Tank Facility Operations Inspection dated October 24, 2003 and the Underground Storage Tank System Closure Report Form dated June 5, 2002 (collectively, the "Environmental Information") are true, correct, and complete copies of the originals. Tenant further represents and wan-ants to the Lessor that Tenant has no other inspections or reports concerning the environmental condition of the Premises and the Tenant is not aware of any n3aterial circumstance which is inconsistent with 19 the Environmental information. To the fullest extent allowed by law, Tenant shall indemnify, defend, and hold harmless Lessor, its officers, directors, .employees, agents, agan]= any and all claims, demands, fines, losses, liabilities, costs, and expenses ('including attorney's fees) arising out of, in connection with, or in any way relating to the use, treatment, storage, generation, manufacture,- transport, release, dispensing, spill, disposal, or other ham of hazardous substances on the premises, or breach of the representations and warranties set forth in this section, or any other presence or alleged presence of hazardous substances on the Premises. Claims shall include, without limitation, (a) the cost of all investigations, removal, remedial, or other response action required by any environmental law, by judicial order, or by order of or agreement with any governmental authority having jurisdiction under any environmental law, (b) claims for injury or death of any, person, and (c) claims for damage to property of any person, including claims for dimunition in value or loss of use. The foregoing indemnity, defense, and hold harmless provisions shall apply only to activities that occurred during time periods when the Tenant. was. in possession of and exercised control over the Premises. IN WI'T'NESS WHEREOF, the parties hereto have hereunto set their hands and seals the day and year first written above. Witness: LESSOR: SASTURBA, LLC By: 4 Attest: TENANT: UNI MARTS, LLC By: /4 0--- -Se? e /fIennAD. Sahakian SIT "A" DESCRIPTION OF LEASM PRF1V IISES PARCEL A ALL THAT CERTAIN tract of land situated on the north side of North Hanover Street in the Fifth Ward ofBorough of Carlisle, Cumberland County, Pennsylvania, bounded and described as follows to wit: BEGINNING at a point, said point being located South forty-seven (47) degrees fifty-nine (59) minutes fifty (50) seconds west One hundred thirty-eight (13 8) feet from the present intersection of Clay and Hanover Street, said .point being located on the northern right of way line of North Hanover Street at the line of lands now or late of Ross Fanciscus; thence by aforesaid line. of lands North forty-two (42), degrees nine (09) minutes forty (40) seconds west One hundred fifty.eight (158) feet to a point at the southern right of way line of a twenty (20)* feet alley; thence by the aforesaid right of way line, North forty-seven (47) degrees fifty-three (53) minutes thirty (30) seconds east Seventy-two (72) feet to .a. point at the line oflands now or formerly the Estate of John H. Kutz; thence along the line of said lands South forty-two (42) degrees nine (09) minutes forty (40) seconds east One hundred fifty-eight (158) feet to a point on the northern right of way line ofNorth Hanover Street; thence South forty-seven (47) degrees fifty--nine (59) minutes fifty (50) seconds west seventy-two (72) feet to the place of BEGINNING. PARCEL B ALL THAT CERTAIN tract of land together with the improvements thereon, situated in the Borough of Carlisle, Cumberland County, State ofPennsylvania, bounded and described as follows, to wit: BEGINNING at a point, said point being located at the Eastern line of property now or formerly of Mervin L. Braught, Sr. and Blanche L. Braught, his wife, thence along the line of said property North forty-two (42) degrees nine (09) minutes forty (40) seconds west One hundred fifty- eight (15 8) feet to a point at the southern right-of-way line of a twenty (20) feet wide alley; thence by aforesaid right-of-way_ line, North forty-seven (47) degrees fifty-three (53) minutes thirty (30) seconds east One hundred 1-birty-two (132) feet to a point at the western right-of-way line of Clay Street; thence by aforesaid right-of-way line of said Clay Street, South nineteen (19) degrees thirty- one (31) minutes east One hundred seventy-one and forty-two one hundredths (171.42) feet to a point being the present intersection of Clay and North Hanover Streets; thence by the northern right- of-way line of said North Hanover Street, South forty-seven (47) degrees fifty-nine (59) minutes fifty (50) seconds west sixty-six (66) feet to a point, the place of BEGINNING. <li ;ki i>" i'i:.-;C , ii'"r. IN NJ .IDLER & ADL1ER I Cy" SI STREET I- l:1IZl?iSi31_RLj. 3+N.%S:i VA I.-% ?,Jii, "')33 HONE OVERNiG117 %! ML ADDRESS: 114z i_f 1S: ? i <T FF T }GIS$I. Rii. (.V-k'%'A ;_Et. Is ; ?I iL'Iy f T.f•: KOHN K(")I;'.LPLIEP t '-'+:A t2. October 4, 2007 Uni-Marts LLC Real Estate Department 477 East Beaver Ave. State College, PA 16801 FEDERAL EXPRESS To whom this may concern: RE: October 21, 2004 Lease with Kasturba, LLC, Lessor for 680 N. Hanover Street, Carlisle, PA Please be advised that I represent Kasturba, LLC, the Lessor under the above referenced lease. Enclosed please find the lease entered into between Kasturba, LLC and Uni-Marts, LLC for the above referenced premises. The Uni- Mart tenant vacated the leased premises. Pursuant to Article II, rent in the amount of $4,946.87 was due on October 1, 2007. This was not paid to Lessor. Under Article XXI of the Lease, this is an event of default. This is your ten day notice of default required by Article XXI. In the event you do not pay all rent due within ten business days of receipt of this letter, Lessor will exercise all legal remedies available to it- In addition, certain porti.ors of the premises have been damaged. Under the lease, you are responsible for repairs. Thank you for your anticipated cooperation. This is an attempt to collect a debt, and any informatz can obtained wiI' be used for that purpose. Very truly yours, j William L. Adler W L3 Exhibit "B" ?-,) -T I 'i ?( V F3 r `. -1 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-07364 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KASTURBA LLC VS UNI-MARTS LLC R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: UNI-MARTS LLC but was unable to locate Them deputized the sheriff of CENTRE serve the within COMPLAINT & NOTICE County, Pennsylvania, to On January 18th , 2008 , this office was in receipt of the attached return from CENTRE Sheriff's Costs: So answers: Docketing 18.00 - %? -- `T Out of County 9.00 Surcharge 10.00 R. Thos line Dep Centre County 50.50 Sheriff of Cumberland County Postage 1.33 88.83 ? i1?3/?Q 01/18/2008 JOHNSON DUFFIE STEWART WEIDNER Sworn and subscribe to before me this day of in his bailiwick. He therefore A. D. In The Court of Common Pleas of Cumberland County, Pennsylvania Kasturba LLC VS. Uni-Marts LLC No. 07-7364 civil NOW December 14, 2007 hereby deputize the Sheriff of Centre County to execute this Writ, this I, SHERIFF OF CUMBERLAND COUNTY, PA, do deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, within upon at by handing to a and made known to So answers, the contents thereof. Sheriff of Sworn and subscribed before me this day of , 20 20 , at o'clock M. served the copy of the original COSTS SERVICE _ MILEAGE _ AFFIDAVIT County, PA P ? '.0 SHERIFFS OFFICE CUMBERLAND COUNTY SHE CENTRE COUNTY Rm 101 Court House, Bellefonte, Pennsylvania, 16823 (814) 355-6803 PROCESS R 1. Plaintiff(s) Kasturba LLC SHERIFF SERVICE INSTRUCTIONS FOR SERVICE OF PROCESS: You must file one instruction sheet for ot detach any copies.ch defendant. please type or print legibly. Do EIPT, AND AFFIDAVIT OF RETURN N 2. Case Number 07-7364 3. Defendant(s) 4. Type of Writ or Complaint: Uni-Marts LLC Complaint 500330 SERVE 5. Name of Individual, Comoanv, Corporation, Etc., to Serve or Description of Property to be Levied, Attached or Sold. Uni-Marts LLC AT 6. Address (Street or RFD, Aoartment No., City, Boro, Two., State and Zip Code) 477 East Beaver Ave.,, State College, PA 16801 7. Indicate unusual service: ( Reg Mail 1- Certified Mail (- Deputize 7-,F. Post r Other Now, 20 1 SHERIFF OF CENTRE COUNTY, PA.., do hereby deputize the Sheriff of _ County to execute this Writ and make return thereof according to law. This deputation being made at the request and risk of the plaintiff. en en ouniv 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sale thereof. 9. Prin ype Name and Address of Attorney/Originator 10. Telephone Number 11. Date CUMBERLAND COUNTY SHERIFF (717) 240-6390 ONE COURTHOUSE SQUARE 12. Signature CARLISLE, PA. 17013 SPACE 13ELOW FOR USE OF SHERIEE ONLY - DO ME BELO W MIS LINE 13. 1 adcnowlee.doe receipt of the wrh } SIGNATURE of Authorized CCSD Deputy of Clerk and Title 14. Date Filed . i t" W d 15. Expiration/Hearing Date or comp am as m cate above. BY 9H RIFF TO BE COMPLETED 16. Served and made known to Donna Weaver _ ?- on the 20 day of December 2007 2:30 PM 477 East Beaver Ave.,, State College, PA 16801 20 ... _..___ , at o'clock, m., at ___------ ? County of Centre Commonwealth of Pennsylvania, in the manner described below: r" Defendant(s) personally served. controller r Adult family member with whom said Defendant(s) resides(s). Relationship is Adult in charge of Defendant's residence. r Manager/Clerk of place of lodging in which Defendant(s) resides(s). l Agent or person in charge of Defendant's office or usual place of business. and officer of said Defendant company. Other On the __ day of 20 , at-___ _ o'clock, M. Defendant not found because: r Moved (-- Unknown r No Answer r Vacant ( Other Remarks: Advance Costs Docket Service Sur Charge Affidavit Mileage Postage Misc. Total Costs Costs Due or Refund 75.00 9.00 9.00 10.00 2.50 20.00 50.50 (24.50) 17. AFFIRMED and subscribed to before me this /0 So Answer. 18. ignatur o 1 eri 19. Del J l O 171M 20. d , . _ 2C 21. Signallff- a of Sh 22. Date 3. _ - ' `-Notary udte ° ,, -------- SHERIFF OF CENTRE COUNTY Amount Pd. Page My Commission Expires 24. 1 ACKNOWLEDGE RECEIPT OF THE S"ER S RETURN SIGNATURE 25. Date Received OF AUTHORIZED AUTHORITY AND TITLE. Johnson, Duffle, Stewart & Weidner By: Mark C. Duffle I.D. No. 75906 Attorneys for Plaintiff 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 mcd@jdsw.com KASTURBA, LLC, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. UNI-MARTS, LLC, NO. 07-7364 CIVIL TERM CIVIL ACTION - LAW Defendant UNI-MARTS, LLC 477 EAST BEAVER AVENUE STATE COLLEGE, PA 16801 Respectfully submitted, PROOF OF SERVICE AND NOW, this day of A111a..C1----' 2008, the undersigned does hereby certify that on December 20, 2007, a copy of the Complaint was served upon the other party of record via personal service by Centre County Sheriff, addressed as follows, as confirmed by the signed return of service attached hereto as Exhibit A. JOHNSON, DUF , STE & WEIDNER DATE: /-7? ZPo By: Mark C. Duffle :326650 SHERIFF'S OFFICE CUMBERLAND COUNTY SHE CENTRE COUNTY Rm 101 Court House, Bellefonte, Pennsylvania, 16823 (814) 355-6803 SHERIFF SERVICE INSTRUCTIONS FOR SERVICE OF PROCESS: You must file one PROCESS RECEIPT AND AFFIDAVIT OF RETURN Not de ch any copies. defendant. please type or print legibly. Do 1. Plaintiff(s) 2. Case Number Kasturba LLC 07-7364 3. Detendant(s) 4. Type of Writ or Complaint: Uni-Marts LLC Complaint 500330 SERVE 5. Name of Individual. Comoanv, Corporation. Etc., to Serve or Description of Property to be Levied, Attached or Sold. Uni-Marts LLC AT 6. Address (Street or RFD, Apartment No., Cih, Boro, Two., State and Zip Code) 477 East Beaver Ave.,, State College, PA 16801 7. Indicate unusual service: M Reg Mail [71' - Certified Map Deputize 17.7: Post r ' Other Now, 20 . t SHERIFF OF CENTRE COUNTY, PP.., do hereby deputize the Sheriff of County to execute this Writ and make return thereof according to law. This deputation being made at the request and risk of the plaintiff. sherm of car" Cowtv 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for arty loss, destruction or removal of any such property before sheriff's sale thereof. 9. FrintrType Name and Address of Attornev/Originator 10. Telephone Number 11. Date CUMBERLAND COUNTY SHERIFF (717) 240-6390 ONE COURTHOUSE SQUARE 12. ignature CARLISLE, PA. 17013 - SPACS RE FOR USE OF SHERIFF ONL Y . DO LOW ]?HIS LINE 13. I a owledoe receipt of thee writ SIGNATURE of Authorized CCSD Deputy of Cleric and Title 14. Date Filed or ccormiainras ir>dicated auove. } . 15. Expiration/Hearing Date TO BE COME=Y SHIE:RIFIF 16. Served and made known to Dsnna Weaver on the 20 day of December 20 2007 at 2:30 PM o'clock m., at 477 East Beaver Ave.,, State College, PA 16801 County of Centre Commonwealth of Pennsylvania, in the manner described below: ? Defendant(s) personally served. r Adult family member with whom said Defendant(s) resides(s). Relationship is controller r -7 Adult in charge of Defendant's residence. Mariager/Clerk of place of lodging in which Defendant(s) resides(s). 177 Agent or person in charge of Defendant's office or usual place of business. and officer of said Defendant company. Other On the day of 20 , at o'clock, . M. Defendant not found because: (77 - Moved Unknown [ No Answer M Vacant Other Remarks: Advance Costs Docket T Service Sur Charqe Affidavit Mileaqe Postage Misc. Total Costs Costs Due or Refund 75.00 9.00 9.00 10.00 2.50 20.00 50.50 (24.50) 17 AFFIRMED and subscribed to before me this f too Answer. P'3 18. ignatur of De . ert 19. Date 20. day .? 2dD6 , 1 ? 21. Sig e of Sh 22 Dat Notary Public SHERIFF OF CENTRE COUNTY Amount Pd. Page My Commission Expires 24. 1 ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE OF AUTHORIZED AUTHORITY AND TITLE. 25. Date Received ? ? ? r,.s m : -a ?.... C-'? ? "'? ? ?? +- ^'1 • a ?j?{'? Z. ?`?':? ? • C.J ^- 'ia = G: ,, ?., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW KASTURBA, LLC, Plaintiff VS. Docket No. 07-7364 CIVIL UNI-MARTS, LLC, Type of Case: Civil Defendant Type of Pleading: PRAECIPE TO ENTER APPEARANCE Filed on behalf of: Defendant COUNSEL OF RECORD FOR THIS PARTY: Scott C. Etter, Esquire MILLER, KISTLER, CAMPBELL, MILLER, WILLIAMS & BENSON, INC. 720 South Atherton Street State College, PA 16801 (814) 234-1500 TEL (814) 234-1549 FAX setter@mkclaw.com PA I.D. #72789 i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW KASTURBA, LLC, Plaintiff VS. UNI-MARTS, LLC, Defendant No. 07-7364 CIVIL PRAECIPE TO ENTER APPEARANCE To the Prothonotary: Please enter my appearance on behalf of Defendant, Uni-Marts, LLC, in the above captioned matter. All papers may be served on the undersigned for purposes of this action Scott Etter, Esquire I.D. 2789 MrOLSouth R, KISTLER, CAMPBELL, M R, WILLIAMS & BENSON, INC. 7 Atherton Street State College, PA 16801 (814) 234-1500 Attorneys for Defendant, Uni-Marts, LLC Dated: April 2, 2008 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW KASTURBA, LLC, Plaintiff VS. No. 07-7364 CIVIL UNI-MARTS, LLC, Defendant . CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Praecipe to Enter Appearance was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Mark C. Duffie, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Scot C. Etter Dated: April 2, 2008 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW KASTURBA, LLC, Plaintiff VS. Docket No. 07-7364 CIVIL UNI-MARTS, LLC, Type of Case: Civil Defendant Type of Pleading: ANSWER AND NEW MATTER Filed on behalf of: Defendant COUNSEL OF RECORD FOR THIS PARTY: . Scott C. Etter, Esquire : MILLER, KISTLER, CAMPBELL, : MILLER, WILLIAMS & BENSON, INC. 720 South Atherton Street State College, PA 16801 (814) 234-1500 TEL (814) 234-1549 FAX setter@mkclaw.com PA I.D. #72789 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW KASTURBA, LLC, Plaintiff VS. No. 07-7364 CIVIL UNI-MARTS, LLC, Defendant NOTICE TO PLEAD TO: Kasturba, LLC c/o Mark C. Duffie, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Scott Etter, Esquire PA I. . #72789 MI ER, KISTLER, CAMPBELL, M LER, WILLIAMS & BENSON, INC. 7 South Atherton Street State College, PA 16801 (814) 234-1500 Attorneys for Defendant, Uni-Marts, LLC Dated: April 2, 2008 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW KASTURBA, LLC, Plaintiff No. 07-7364 CIVIL VS. UNI-MARTS, LLC, Defendant ANSWER AND NEW MATTER AND NOW, comes Defendant, Uni-Marts, LLC ("Defendant"), by and through its attorneys, Scott C. Etter, Esquire, and Miller, Kistler, Campbell, Miller, Williams & Benson, Inc., and hereby responds to Plaintiff's Complaint, as follows: ANSWER COUNT I-DEFAULT OF LEASE NONPAYMENT OF RENT 1. Admitted. 2. Admitted. 3. Admitted. 4. It is admitted that Plaintiff purchased the property from State College Premier Rentals, a Pennsylvania limited partnership. It is not known what "related" means, but it is nonetheless specifically denied. Defendant is a wholly separate and legally distinct entity. 5. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief about the truth of the averments contained in Paragraph 5, and the same are denied. Strict proof thereof is demanded at the time of trial. 6. The Lease is a written document and as such speaks for itself. Any attempt on the part of Plaintiff to alter, amend, or add meaning thereto is specifically denied. 7. Defendant incorporates by reference its answer to Paragraph 6 as if it had been set forth at length herein. The averment pertaining to rent being due is a conclusion of law to which no response is required. 8. Admitted. 9. It is admitted that rental payments have not been made for the specified months. The averment pertaining to rent being due is a conclusion of law to which no response is required. 10. Defendant incorporates by reference its answer to Paragraph 9 as if it had been set forth at length herein. 11. The averments contained in Paragraph 11 are conclusions of law to which no response is required. To the extent that a response is deemed to be appropriate, the Lease is a written document and speaks for itself. Any attempt on the part of the Plaintiff to alter, amend, or add meaning thereto is specifically denied. 2 WHEREFORE, Defendant, Uni-Marts, LLC prays that the Complaint be dismissed, and that judgment be entered in its favor and against Plaintiff on all claims set forth in the Complaint. COUNT II - DEFAULT OF LEASE DAMAGE TO LEASED PREMISES 12. Defendant incorporates by reference its answers to Paragraphs 1 through and including 11 as if each had been set forth at length herein. 13. It is admitted that Mr. Long advised Plaintiff that Defendant had ceased operations. The remaining averments are specifically denied. Strict proof thereof is demanded at the time of trial. 14. The averments contained in Paragraph 14 are specifically denied. Defendant at all times it was in control of the leased premises kept it in proper and/or working order, the same as existed at the outset of the lease term. 15. Defendant incorporates by reference its answer to Paragraph 14 as if it had been set forth at length herein. By way of further response, the averments contained in Paragraph 15 are conclusions of law to which no response is required. 16. Denied. Plaintiff has taken possession of the leased premises, and in violation of the terms and conditions of the Lease, has unilaterally changed the locks and otherwise barred Defendant from access. 3 WHEREFORE, Defendant, Uni-Marts, LLC prays that the Complaint be dismissed, and that judgment be entered in its favor and against Plaintiff on all claims set forth in the Complaint. COUNT III - DEFAULT OF LEASE ACCELERATION OF RENT 17. Defendant incorporates by reference its answers to Paragraphs 1 through and including 16 as if each had been set forth at length herein. 18. Defendant incorporates by reference its answer to Paragraph 6 as if it had been set forth at length herein. 19. The letter is a written document, and as such speaks for itself. Any attempt on the part of Plaintiff to alter, amend, or add meaning thereto is specifically denied. 20. The averments contained in Paragraph 20 are conclusions of law to which no response is required. 21. Denied. Defendant incorporates by reference its answer to Paragraph 16 as if it had been set forth at length herein. 22. The averments contained in Paragraph 22 are conclusions of law to which no response is required. WHEREFORE, Defendant, Uni-Marts, LLC prays that the Complaint be dismissed, and that judgment be entered in its favor and against Plaintiff on all claims set forth in the Complaint. 4 NEW MATTER 23. Defendant incorporates by reference its answers to Paragraphs 1 through and including 22 as if each had been set forth at length herein. 24. Defendant avers that Plaintiff has failed to state any claim upon which relief can be granted. 25. Defendant avers that Plaintiff has not suffered all or some of the damages as averred in the Complaint. 26. Defendant avers that Plaintiff has failed to mitigate its damages. 27. Defendant avers that Plaintiff has failed to follow procedures required by law. WHEREFORE, Defendant, Uni-Marts, LLC prays that the Complaint be dismissed, and that judgment be entered in it-.O and against Plaintiff on all claims set forth in the C.0 pl nt. Scott Etter, Esquire I.D. Z2789 MIL R, KISTLER, CAMPBELL, MI ER, WILLIAMS & BENSON, INC. 72 South Atherton Street State College, PA 16801 (814) 234-1500 Counsel for Defendant, Uni-Marts, LLC Dated: April 2, 2008 5 VERIFICATION I, Henry D. Sahakian, am a Manager of Uni-Marts, LLC, a limited liability company, and as such officer, being authorized to do so, state that the facts contained in the foregoing Answer and New Matter are true and correct to the best of my knowledge, information, and belief. I make this Verification pursuant to 18 Pa.C.S.A. Section 4904 pertaining to unsworn falsification to authorities. 0?? He D. Sahakian Dated: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW KASTURBA, LLC, Plaintiff , VS. UNI-MARTS, LLC, Defendant , No. 07-7364 CIVIL CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer and New Matter was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Mark C. Duffie, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 MILLER, KIST MILLER, WILY By; cot?FFC . Etfr MPBELL, BENSON, INC. Dated: April 2, 2008 Johnson, Duffie, Stewart & Weidner By: Mark C. Duffie I.D. No. 75906 Attorneys for Plaintiff 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 mcd@jdsw.com KASTURBA, LLC, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 07-7364 CIVIL TERM V. CIVIL ACTION - LAW UNI-MARTS, LLC, Defendant REPLY TO NEW MATTER AND NOW, comes the Plaintiff, Kasturba, LLC by and through its attorneys, Johnson, Duffie, Stewart & Weidner, and hereby replies to Defendant's New Matter: NEW MATTER 23. Said paragraph is one of incorporation to which no responsive pleading is required. 24. The Defendant's averments in paragraph 24 are conclusions of law to which no responsive pleading is required. To the extent one is required, the same is denied. 25. Denied. By way of further response, Defendant incorporates by reference those averments set forth in Plaintiffs Complaint. 26. Denied. By way of further response, Plaintiff owes no such duty. Plaintiff has taken possession of the property to simply inspect the same and ensure against vandalism. 27. Defendants averments in paragraph 27 are conclusions of law to which no responsive pleading is required. To the extent one is required, the same is denied WHEREFORE, Plaintiff, Kasturba, LLC, requests this Honorable Court to enter judgment in its favor and against Defendant on all claims set forth in the Complaint. Respectfully submitted, JOHNSON, DUFFIEZTEW4RT & WEIDNER By: Mark C. Duffie 301 Market Stre t P.O. Box 109 Lemoyne, PA 17043 (717) 761-4540 Attorney for Plaintiff :330347 VERIFICATION The undersigned says that the facts set forth in the foregoing document are true and correct. This verification is made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsifications to authorities. KASTURBA, LLC BY: Ed, ? "q ? EDDIE DELAVDIA, Member Dated: "r a CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following counsel of record, by depositing the same in the United States Mail, via certified mail and first class mail, postage prepaid, in Lemoyne, Pennsylvania, on the 0779 Ali day of April, 2008. UNIMARTS, LLC c/o Scott C. Etter, Esquire Miller Kistler Campbell Miller Williams & Benson 720 South Atherton Street, Ste. 201 State College, PA 16801-4669 By: /?/°? Date: ?•- r--a :-' - r 7 i ? `t7 t?Y? ? _ , , ^rA 'j S ?T :Y _ .. ? }? , V + I'i } ? ? V ??~J ?.._.. ?_ • . ? y ?'?' ' `- Johnson, Duffle, Stewart & Weidner By: Mark C. Duffle I.D. No. 75906 Kevin E. Osborne I.D. No. 34991 Elizabeth D. Snover I.D. No. 200997 301 Market Street P.O. Box 109 Lemoyne, Pennsylvania 17043-0109 717-761-4540 mcd@jdsw.com KASTURBA, LLC, Plaintiff V. UNI-MARTS, LLC, Defendants Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-7364 CIVIL TERM CIVIL ACTION - LAW PLAINTIFF'S PETITION FOR A STATUS CONFERENCE AND NOW, comes the Plaintiff, Kasturba, LLC, through their attorneys Johnson, Duffie, Stewart & Weidner, and files the following Petition to Schedule a Status Conference and in support thereof avers as follows: 1. The instant case concerns an alleged breach of a commercial lease agreement by abandonment of the property located at 680 North Hanover Street, Carlisle, Cumberland County, Pennsylvania. 2. A Complaint was filed in this matter on or about December 6, 2007. 3. Defendant Uni-Marts, LLC filed an Answer with New Matter on or about April 3, 2008. 4. Plaintiffs filed a Reply to New Matter on April 22, 2008. 5. Despite the time that have elapsed since the close of the pleadings, neither party has engaged in discovery. 6. It is submitted that discovery should not be extensive given the facts alleged in the pleadings and the nature of this suit for breach of commercial lease by abandonment. 7. Plaintiffs are desire a speed resolution of this matter as they currently are the owners of a vacant property. 8. A status conference is requested to set deadlines for discovery and to set a date for a non-jury trial. 9. Currently, neither party has requested a jury trial. 10. No judge has been assigned to this matter nor made a ruling related to this matter. 11. Defendant's counsel has concurred in this Motion. WHEREFORE, the Plaintiff, Kasturba, LLC, respectfully requests that this Honorable Court enter an order scheduling a status conference. JOHNSON, DUFFIE, STEWART & WEIDNER By J I ark C. Duffie I . D. #: 5906 Kevin E. Osborne ID # 34991 Elizabeth D. Snover ID # 200997 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 DATE: May 19, 2008 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following counsel of record, by depositing the same in the United States Mail, via certified mail and first class mail, postage prepaid, in Lemoyne, Pennsylvania, on the 19th day of May, 2008. Scott C. Etter, Esquire Miller Kistler Campbell Miller Williams & Benson 720 South Atherton Street, Ste. 201 State College, PA 16801-4669 By: ??. Elizabeth P. Snover " MAY 212008+x,. KASTURBA, LLC, Plaintiff V. UNI-MARTS, LLC, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-7364 CIVIL TERM CIVIL ACTION - LAW ORDER OF COURT AND NOW, this -? day of , 2008, upon consideration of the Petition for a Status Conference and any response thereto, a Status Conference is hereby scheduled for ? T , 2008 at ' W KA- at the Cumberland County Courthouse in Judge's Chambers COL*- r? -44 3? col T COURT: J. Distribution: X zabeth D. Snover Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 V vdcott C. Etter, Esquire Miller Kistler Campbell Miller Williams & Benson 720 South Atherton Street, Ste. 201 State College, PA 16801-4669 3 Ai??r? v: t• S •01 1 V EZ tcvw gooz 3Hi K) J0,1?!_.r-? ???