HomeMy WebLinkAbout04-0268COMMERCIAL REALTY GROUP, iNC.
CLAIMANT
VS.
YVONNE ESHLEMAN, WALTER
RIMMER?FRTEDERICK A. M.
ESHLEMAN~, DONALD C. RIMMER,
RIMMER FAMILY TRUST, MARLiN L.
LEHMER
OWNERS
REGARDING REAL ESTATE
PREMISES SITUATED AT:
SOUTHEAST CORNER OF THE
INTERSECTION OF INTERSTATE
ROUTE 8 l AND PA ROUTE 114,
CUMBERLAND COUNTY TAX
PARCEL NO. 38-06-0011-012
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO, 04-268 Civil
PRAECIPE
TO THE PROTHONOTARY:
Kindly enter a Commercial Real Estate Broker Lien in the amount of $108,000.00 against the
premises situate at the southeast corner of Interstate Route 81 and PA Route 114, Cumberland County
Tax Pamel No. 38-06-0011-012, in accordance with the attached Notice of Commercial Real Estate
Broker Lien,
Dated: January 21, 2004
38954~vl
METTE, EVANS & WOODSIDE
Supreme Court I.D. 07981
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorney for Claimam
COMMERCIAL REALTY GROUP,
1NC.
CLAIMANT
VS.
YVONNE ESHLEMAN, WALTER
RIMMER, FREDERICK A. M.
ESHLEMAN, DONALD C. RIMMER,
RIMMER FAMILY TRUST, MARLIN
L. LEHMER
OWNERS
REGARDING REAL ESTATE
PREMISES SITUATED AT:
SOUTHEAST CORNER OF THE
INTERSECTION OF INTERSTATE
ROUTE 81 AND PA ROUTE 114,
CUMBERLAND COUNTY TAX
PARCEL NO. 38-06-0011-012
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO.
NOTICE OF COMMERCIAL REAL ESTATE BROKER LIEN
AND NOW, comes Commercial Realty Group, Inc., by its attorneys, Mette, Evans &
Woodside and files its Notice of Commercial Real Estate Brokers Lien pursuant to the
Commercial Real Estate Broker Lien Act, Act of March 20, 1998, P.L. 199, No. 34, 68 P.S.
§1051. et seq., as follows:
The Claimant is Commercial Realty Group, Inc., 1300 Market Street, Lemoyne,
PA 17043.
2.
The name of the owner of the above-referenced real estate premises is Frederick
A. M. Eshleman and/or Yvonne Eshleman, c/o Yvonne Eshleman, 3 Blue Darther Lane,
Skidaway Island, Savannah, GA 31411; Donald C. Rimmer and/or Walter Rimmer and/or the
Rimmer Family Trust, c/o Walter Rimmer, P.O. Box 281, Dillsburg, PA 17019; and Marlin L.
VERIFICATION
I, THOMAS J. MALLIOS, President of Commercial Realty Group, Inc., do verify that
the statements and averments contained in the foregoing notice of commercial real
estate broker claim for lien are true and correct to the best of my personal knowledge,
information and belief. I understand that false averments herein are made subject to the penalties
of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities.
COMMERCIAL REALTY GROUP, INC.
Thomas J. Mallios, President
:325933 _1
389254vl
Fifty lq~ousand and ..... 00/100 ($~0,000.00} Dollar.t
tenLhs (~7-7) perches to a stake on the bank of the Conodogulnet
Wall,er north )gj~ degrees west, ~thirty-eight (~) perches to a
same, 8~ de~rees we~t, twenty-five and two-tenths (2~.~) perche~ i
north 88 degrees west, twenty-slx and'£ive-tenths (26.5) perches
to a stone; thence by lands oF same, north 78 3~ degrees west,
~hlrty-nlne and two-tenths (3~.2) perches to a stone; thence by
lands of same~ south ~¼ degrees west~ eighteen and three--[¢nths
(18.3) perches to a stonei thence by lands of Milton Humer a~
lands of.D. $. Poorman, south 11 degrees east, two hundred five
and seven-tenths (20~.7) perches to a stone In said Bucher~s
Mill Roadl thence by lands of M. L. Pottelger, south 19 3/~ degraes
east, one hundred ~wenty-one and n~n¢-tenths (121.9} perches to tile
place o£,BEGINHIHG, containing two hundred eight (208) acres and
elghty-s~v_~ ~87) perches, more or less.
BEI~O the same premises which C. U. Kast~ single wo~n~ by
her deed deled October ~1~ 19B~, and recorded In the Recorder~s
OfficE,in and for Ct~nberland County in Deed Book 'Z~ Volu~ne
Page 302~ granted and conveyed unto J. Harry Smith and Laura
$mtth~ his wife. ~e said Laura E. Smith died March 27~
leaving [o survive her~ her husband~ J. Harry 5mlth~ In whom tills
[o the said pr.emlses was solely vested by virtue o~ the doctrln~
or survivorship lnclden[ to tenancies by the entireties.
~ere Is rese~ed ~rom this. conveyance the burial
twenty-five (2~) reel In width and thir~-throe (33) ~eet In depth,
which ~. Hasty Smith and Laura E, Sml~h~ his wlfe~ by deed dated
Catober 29, 1927 an~ recorded In tile Recocder~s O~ftce aforesaid
In Deed Book "Q"~ VOl~e lO~ Page k62, grante~ and conveyed
Abram Bosler.
/'/ ~, .- . ,
CERT'IFICATE OF RESIDENCE
I do hereby cert[£y that the precise reald~nce and exact post
COUNTY OF CUYBERLAND
On thee, thc ~,.¥~.. day o/ June , ~.~ 63, b~/ore ,ne
personally appcnrcd Dflv{~ ~t~S~th and Pau~ .~,o~ (o ~e (o~ sat~f~cto~,v~ten)
JEFFREY A. ERNICO
DIRECT DIAL
(717) 231-5206
METTE~ EVANS & ~rOODSIDE
EMAIL ADDRESS
jaernico@meHe.com
http:b~mw, meffe.com
January 15, 2004
VIA CERTIFIED MAIL, RETURN RECEIPT RE O UES TED
Marlin L. Lehmer
602 York Circle
Mechanicsburg, PA 17055
Mark R. T. Simpson
3609 Gettysburg Road
Camp Hill, PA 17011
Yvonne Eshleman
3 Blue Darther Lane
Skidaway Island
Savannah, GA 31411
195 Associates, Inc. and/or
195 Associates, LLC
3609 Gettysburg Road
Camp Hill, PA 17011
Walter Rimmer
(for Rimmer Family Trust)
PO Box 281
Dillsburg, PA 17019
Tyson Hills, Inc.
3609 Gettysburg Road
Camp Hill, PA 17011
Rich Valley Associates
3609 Gettysburg Road
Camp Hill, PA 17011
Re:
Commercial Real Estate Broker Lien with regard to Premises Situate at
Interstate Route 81 and Pennsyivania Route 114, Southeast Corner
Tax Parcel No.: 38 -06-0011-012 (Approximately 61.3 Acres)
Dear Lady & Gentlemen:
This office represents Commercial Realty Group, Inc. who has authorized us to send you
this notice in accordance with the Commercial Real Estate Broker Lien Act of 1998. This letter
will serve as your formal notice of the claim for lien of Commemial Realty Group, Inc. that it is
entitled to compensation under the terms of its written listing agreement with the owner(s)
pursuant to the requirements of the above-referenced Act in the amount of $I08,000 and with
reference to the above-referenced property which is also identified in Cumberland County Deed
Book W20, Page 110, et seq. The real estate license number of the broker is RB049153C.
~-x ~ [BIT nBn
January 15, 2004
Page 2
It is our intention to file the Notice of Lien with reference to the said real property. See
Verification of the Broker, attached.
JAE: mjb
cc via certified mail:
Jerry R. Duffle, Esq.
Kenneth A. Walker
Charles E. Shields, III, Esq.
JAN-IS-2O04 THU 0~:22 PH 7~778N322 P, 02
'" ~0o4/004
COHHERCIRL RERLTY GROUP
_V]iRIFICATION
I, THOMAS I. MALLIOS, President of Commemlal R~
~o s~mcnt~ ~d ave~ ~a~ncd in ~c forcgoJng L~cr of no~ce of ~mmerclal re~
esta~ broker ¢I~ for li~n ~e flue :md ~o~¢t to ~ ~t of my po~o~ ~owl~go,
information aM bel[~ I ~d~s~d that M~ av~ments herc~ ~ mad~ subject ~ th~ pen~fies
of 18 Pa. C,S. ~4904 rolafiag to u~wo~ A~ifloa~on to authorMe~,
CO~RCI~
Thomas J, Mallios, President
COMMERCIAL REALTY GROUP, :
INC., :
Claimant :
VS.
YVONNE ESHELMAN, WALTER
RIMMER, FREDERICK A.M.
ESHELMAN, DONALD C. RIMMER
RIMMER FAMILY TRUST, MARLIN
L. LEHMER
Owners :
REGARDING REAL ESTATE:
pREMISES SITUATED AT :
SOUTHEAST CORNER OF :
THE INTERSECTION OF :
INTERSTATE ROUTE 81 & :
PA ROUTE 114, :
CUMBERLAND COUNTY :
TAX PARCEL NO: :
38-06-0011-012 :
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO: 04-268 CIVIL
PRAECIPE FOR ENTRY OF APPEARANCE
Please enter the appearance of DANIEL STERN, ESQUIRE, of 2650 North Third Street,
Harrisburg, PA 17110, as counsel for Marlin L. Lehmer, Owner/Defendant, relative to the above-
captioned mater.
Respectfully submitted,
Date:
Daniel Stern, Esquire
2650 North Third Street
Harrisburg, PA 17110
(717) 234-4531
Supreme Court ID#25989
Attorney for Owner/Defendant
Marlin L. Lehmer
COMMERCIAL REALTY GROUP,
INC.,
Claimant
VS.
YVONNE ESHELMAN, WALTER
RIMMER, FREDERICK A.M.
ESHELMAN, DONALD C. RIMMER
RIMMER FAMILY TRUST, MARLIN
L. LEHMER
1N THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO: 04-268 CIVIL
Owners :
REGARDING REAL ESTATE
PREMISES SITUATED AT
SOUTHEAST CORNER OF
THE INTERSECTION OF
INTERSTATE ROUTE 81 &
PA ROUTE 114,
CUMBERLAND COUNTY
TAX PARCEL NO:
38-06-0011-012
CERTIFICATE OF SERVICE
I, Daniel Stem, do hereby certify that on this date I served a copy of the foregoing, Entry of
Appearance and Praecipe to File Complaint were served upon the following via first class mail, postage
prepaid:
Jeffrey A. Emico, Esquire
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
Yvonne Eshleman
3 Blue Darther Lane
Skidaway Island
Savannah, GA 17019
Walter Rimmer
Individually and for
Rimmer Family Trust
P.O. Box 281
Dillsburg, PA 17019
Bruce Foreman, Esquire
4409 North Front Street
Harrisburg, PA 17110
Date:
Daniel Stem, Esquire
COMMERCIAL REALTY GROUP,
INC.,
PENNSYLVANIA
Claimant
VS.
YVONNE ESHELMAN, WALTER
RIMMER, FREDERICK A.M.
ESHELMAN, DONALD C. RIMMER
RIMMER FAMILY TRUST, MARLIN
L. LEHMER
Owners :
REGARDING REAL ESTATE
PREMISES SITUATED AT
SOUTHEAST CORNER OF
THE INTERSECTION OF
INTERSTATE ROUTE 81 &
PA ROUTE 114,
CUMBERLAND COUNTY
TAX PARCEL NO:
38-06-0011-012
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
CIVIL ACTION - LAW
NO: 04-268 CIVIL
PRAECIPE
TO THE PROTHONOTARY:
Pursuant to 68 P.S. § 1058(f), on behalf of Owner, Marlin L. Lehmer, enter a Rule
upon Commercial Realty Group, Inc., to file a Complaint in the above-captioned matter.
Date Daniel Stem, Esq.
2650 N. 3rd St.
Harrisburg, PA 17110
717 234 4531
Supreme Ct. Id. #25989
Attorney for Owner, Marlin L. Lehmer
RULE
Claimant, Commercial Realty Group, Inc., is directed to file a Complaint within
twenty days (20) of this date, or suffer extinguishment of its lien.
Date: ,~/~-/0 r.~
COMMERCIAL REALTY GROUP, 1NC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER
E. RIMMER, RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, .JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. and
RICH VALLEY ASSOCIATES
Defendants
REGARDING REAL ESTATE
PREMISES SITUATED AT:
SOUTHEAST CORNER OF THE
INTERSECTION OF INTERSTATE
ROUTE 81 AND PA ROUTE 114,
CUMBERLAND COUNTY TAX
PARCEL NO. 38-06-0011-012
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-268 Civil
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.
DAUPHiN COUNTY LAWYER REFERRAL SERVICE
213 North From Street
Harrisburg, PA 17101
(717) 232-7536
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las
demandas que se presentan m~is adelante en las siguientes pfiginas, debe tomar acci6n dentro de
los pr6ximos veinte (20) dias despuSs de la notificaci6n de esta Demanda y Aviso radicando
personalmente o por medio de tm abogado una comparecencia escrita y radicando en la Cone por
escrito sus defensas de, y objecciones a, las demandas presentadas aqul 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 reclamaci6n o remedio solicitado por el demandante puede set dictado en contra suya por la
Cone sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos
importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO
1NMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA
SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEEREE 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 S1N CARGO O BAJO COSTO A
PERSONAS QUE CUALIFICAN.
DAUPHIN COUNTY LAWYER REFERRAL SERVICE
213 North Front Street
Ha.~isburg, PA 17101
(717) 232-7536
COMMERCIAL REALTY GROUP, INC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER
E. RIMMER, RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. and
RICH VALLEY ASSOCIATES
Defendants
REGARDING REAL ESTATE
PREMISES SITUATED AT:
SOUTHEAST CORNER OF THE
INTERSECTION OF INTERSTATE
ROUTE 81 AND PA ROUTE 114,
CUMBERLAND COUNTY TAX
PARCEL NO. 38-06-0011-012
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-268 Civil
COMPLAINT
AND NOW COMES the Plaintiff, Commercial Realty Group, Inc., hereinafter referred to
as "CRG" and/or "Plaintiff," by its attorneys, Mette, Evans & Woodside, P.C., who aver as
follows:
1.
CRG is a Pennsylvania business corporation with a principal place of business
located at 1300 Market Street, Lemoyne, Cumberland County, PA 17043.
2. Defendant Yvonne Eshleman, hereinafter referred to as "Mrs. Eshleman," is an
adult individual residing at 3 Blue Darther Lane, Skidaway Island, Savannah, GA 31411.
3. Defendant, Estate of Frederick M. Eshleman, hereinafter referred to as "Mr.
Eshleman," is served by and through its executrix, Mrs. Eshleman, residing at 3 Blue Darther
Lane, Skidaway Island, Savannah, GA 31411.
4. Defendant, Walter E. Rimmer, hereinafter referred to as "W. Rimmer," is an adult
individual residing at 6740 Harmony Grove Road, Dover, York County, PA 17315.
5. Defendant, Rimmer Family Trust, hereinafter referred to as "RFT," is a successor
in ownership and title to the hereinafter described premises, c/o Walter E. Rimmer, 6740
Harmony Grove Road, PA 17315.
6. Defendant Marlin L. Lehmer, hereinafter referred to as "Lehmer," is an adult
individual residing at 602 York Circle, Mechanicsburg, Cumberland County, PA 17055.
7. Defendant, Kenneth A. Walker, hereinafter referred to as "Walker," is an adult
individual with a principal place of business located at 3310 Market Street, Camp Hill,
Cumberland County, PA 17011.
8. Defendant John Murphy, hereinafter referred to as "Murphy," is an adult
individual trading and doing business at the offices of ALPHA Consulting Engineers, Inc., at 145
Limekiln Road, Suite 600, New Cumberland, PA 17070.
9. Defendant Mark R. T. Simpson, hereinafter referred to as "Simpson," is an adult
individual with a principal place of business located at 3609 Gettysburg Road, Camp Hill,
Cumberland County, PA 17011.
10. Defendant 195 Associates, LLC, hereinafter referred to as "195," is a
Pennsylvania limited liability company with a principal place of business located at 3609
Gettysburg Road, Camp Hill, Cumberland County, PA 17011.
2
I 1. Defendant Rich Valley Associates, hereinafter referred to as "RVA," is a
Pennsylvania business entity with a principal place of business located at 3609 Gettysburg Road,
Camp Hill, Cumberland County, PA 17011.
12. On or about November 8, 2001, Walker and CRG entered into a "Broker/Sales
Person Independent Contractor Agreement" in which he agreed to act as an independent real
estate sales person and to engage his efforts to sell, trade, lease or rent any and all real estate
listed with CRG. A copy of said agreement is attached hereto, made a part hereof and marked as
Exhibit "A."
13. On or about January 22, 2002, Walker, acting as an agent for CRG, entered into
an exclusive listing contract to sell commercial real estate owned by Lehmer, Eshleman and W.
Rimmer (for RFT), which property is more specifically described in said listing contract which is
attached hereto, made a part hereof and marked as Exhibit "B."
14. Under the terms of said listing contract, inter alia, CRG and Walker were to
receive a commission/fee upon procuring a buyer for the sale or lease of the property during the
term thereof. The commission schedule is more particularly described in Exhibit "B."
15. Under the terms of Exhibit "B" the aforesaid broker's fee/commission would be
payable from the owners of the property to CRG as described in Exhibit "B."
16. On or about May 1, 2002 Eshleman, Lehmer and Rimmer negotiated an
Agreement of Sale/Option to sell the subject property to Simpson. A copy of a draft of the
Agreement of Sale is attached hereto, made a part hereof and marked as Exhibit "C."
17. Pursuant to the negotiations referred to in paragraph 16, Simpson deposited a
check dated May 1, 2002 in the amotmt (~f Ten Thousand ($10,000.00) Dollars with CRG.
3
18. On or about June 7, 2002, Lehmer and Eshleman extended the listing contract
hereinafter referred to as Exhibit "B" for a period of 6 months or through January 21, 2003. A
copy of the extension contract is attached hereto, made a part here of and marked as Exhibit "D."
19. Upon information and belief, the subject property was placed under a subsequent
Agreement of Sale by Murphy as agent for Simpson within 365 days of January 21, 2003.
20. A commission in the amount of One Hundred Eight Thousand ($108,000.00)
Dollars is due and payable to CRG under Exhibit "B," Exhibit "C" and Exhibit "D" because the
property is under contract to be sold by 6wner/defendants for the interest of Mark R.T. Simpson,
a person procured during the term of said listing contract and extension or within 365 days
thereafter.
WHEREFORE, Plaintiff demands judgment against Defendants in the amount of One
Hundred Eight Thousand ($108,000.00) Dollars together with interest, costs and attorneys' fees.
By: ~Cra~ig-~~n~' ~
~upreme court I.D. 15907
Dated: February 23, 2004
Jeffrey A. Eruico, Esquire
Supreme Court I.D. 07981
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorney for Plaintiff
Commercial Realty Group, Inc.
4
VERIFICATION
I, Thomas J. Mallios, President of Commemial Realty Group, Inc., have read the
foregoing document and verify that the facts set forth therein are true and correct to the best of
my knowledge, information and belief. To the extent that the foregoing document and/or its
language is that of counsel, I have relied upon counsel in making this Verification.
I understand that any false statements made herein are subject to the of 18 Pa. C.S. §4904
relating to unsworn falsification to authorities.
COMMERCIAL REALTY GROUP, 1NC.
By;_
Thomas J. Mallios, President
Date: February 23, 2004
391003vl
INDEPENDENT CONTRACTOR AGREEMENT
NOW TI~I~FOP~, for and in c~sid~fion of the ~uwa! co~nsats and promis~ he.in con~in~, ~he unde~i~ed ~r/mo the
s~ll ~h~ e~s~th~t ~c ~n~ for?~u~ as a ~ ~ u~ ~ sh~ ply ~1 du~ for m~b~ip in the ~mno~ set f~ in
~Z Deposits.
coopers,on b~ Snleap¢~on. ns is ,enson .a~le artec, th~ clrcums_~. ~..s for ~he ptot~:tion of the interns of
corr~pondence and documents descrlbe, ni in Pa~a~rap~ I 1 above, which ara deemed to be the pro,ny of Bro. k?-$ ' ' cs Pea~ fusu~ :n vg~tn~ot hr~a 'aud~n~
· sh all be deemed ea meal by Sale~pe~.on, unl~.~ o.ther'~i~i sSx~'d in ~dling
B~oker and $~le?er~oll a~ree o p~ovid¢ a wtitt~l a~emeat Io lhe locnl nssoclali~n OIII~ALTOI~ as may be required by sald.ns~oclafion ,, · co vn~vifla~O.n
Aasoc a tlon of REALTOR~ wh ch has e~ter rained the ~[~u~e or disa~men~ The cond.ulo f t,he a~bi.tra, fi.°n ?all be $°v~.~. b~ th.c C,°d~la~
LISTING CONTRACT XLS-C
EXCLUSIVE RIGHT TO SELL AND/OR LEASE cOMIVIERCIAL PROPERTY
Corn ~n CO GRO 1~ ·
BROKER ( P Y) "~A. WALKER
LICENSEE (S) ~ .........
SELLER ~ L. & A~ICE . E YVO F Y TRUST
DRESSES ON
1. PROPERTY
A. Address~ll-81 & pA ROUTEll4 S/E/C: 1230NEWWiLLOWMILLROAD. M~CltANICSBURG. PA17055
County
Munldpalit~ ~
T~x Identification Number ~-u u -u pa6e ~
DeedB~ok W20 ~%~rERCHANGE/VACANTLAND CAppRoX. 61.3 /c ACRES)
Zoning Classiflcaflo~ & preseor
[] A leg~] description or a d~sc/iption of the Propen'y i~ attached m ~ Contrac~
B. Inclusions: Included with the Pwpcrty ~re i~n~ ]i~d her~ or i-1 Usted m a prope~y de~criptwn sheet attach~
yACANT LAND ONLY . · ·
C. Exclusions: Excluded from tho Property ~e items and leased r~u;pu~,,n! I~cd here or I-I lt~ted m n proper~y descr~pt,,.
2, STARTInG & ENDING DATES OF TH~S CONTRACT (Als° called ''Term')
AL SIG ATURE A WHI R
D.. o~;~e-~-~f this Co~-act will bo extend=d by lhe numb-- ol 0ay~ n~m m.. ......... The
SIX (6%) pRRCENT
OwnerIn,~.~--~}~.~ ~__. ~. pagelof4 Broker/Sslmpersonlnitlals: .~
% BROKV~S COOPERATION/AGENCY pOLICIES
~. [] y~ r~ NoIfYes, amount: 0~E HAi~ OF TOTAL COMMISSiON of/fromthesalepric~.
I-~ yes [] No If Yes amomt: offfrom the snl~ price.
th~ co~ th,. the ,~o~t o~ .i~, ~ ~.~ .~._~ o~.~.,~ ~ ~..
1. The Property is sold, lease, d, or exchanged in who|e or in part '~ithln ~ d~s of~he ~ndth§ Date, AND
of this Contract. Owner will not owe Brok,~r's Fee under the Pr°visions of this para, apb 8 (E) if, sfl~r the
in 7ar~ph 6(C)* Bicker s Fe~ will be ~ed at the tune the exterioea t~rm Oegl~ °r the ac~am° P
If a buy./ten~nt under a lease o~l~e~e~ ~.p~w~ op~t ~ho~h~ les~il~e~,~ extoa~-e~nsio~eth~ir et ho~;
~vithin 365 ~ aitor the exph-aflon thereo/~ the~
...... otherwiso d~ses of Owner'~ intot~t in ~he Pmpea'y, Owner must pay Broker's Fee a~ set
due and payablo in full prior to sale, lndud/ng those f~s oth~'wme payablo over the term of any l~se(s) or othermse
C. Ov.~er ~ a~r~p~r~rsbip, joint venire, limited habtlit~ company, corporauon, ~ ~, ~u
A. ~ of/from moal~s pala oy
13. BROKER~S SERVICES TO BUYER
A, Owner, or each Pexs°n signing this C°nt~act °n behalf °f Owner' has the full ri~at~ p°wer and auth°tity t° execute this
[] Gene'ml Ativer~ng
Other.
C. Owner liembY agr~es t° indemnifS'' defend (with ~°unsel reas°nably acceptable t° Br°ker)' and held Br°knr harmless
· ctions su ts liabilities costs, and expens~ atisi~g tau of Owner's failure to disclose known material
defects and conditions, including judgul~nts, costs of def~ase, attorneys' fas, and s~.tl~ment. This clause wig survive
19. PROPERTY MAINTENANC~ · .
A. Owner has full responsibility for maintenance, ragalr, replacement, opel'atica, and semlrlty of the Property. Broker will
not be liable for any loss, damage, or injury to the Propert~ or to Ova*r, any tenants of the proporg', any buyer,
prospective buyer, t~nant, or prosp~ive tanallt~ or any other peison, i~oludlag those that may occur as a result of
Broker's use of a lock box. Owner will hold harmless Broker, Licensee, Broker's empinyeea and agent~, and will
indemnify such persons and entities from and against all claims, suits, and liability as may arise from pr epoXY damage or
B. Owner h~rebyr~leases and rulleves Br°k~r' and waives Owner's entire right cf rec°wr7 agatost Bmknr' for dtmct °r
conS~luential loss or damage arising out of or incident to tho perils covered by insurance canied by Owner, whether or
hot duo lo the negligence of Broker.
2§. D EPAO. S IBTB r o~ eot ,17o rYany P~on Owner and tho buyer name in the Agreement of Sale, will l~p all dagoslt monies paid by or for
the buyer in an escrow ac~otmt. This escrow account wig ha held as required by real estate libor, sing laws and
regulations until the sale or exchange of the prep~rty is final. Owner agrees that the person haeping the deposit monies
may wait to d~posit any uncashed eh~k that is received as deposit money until O'0mer has ilccgpted an offer.
B. lfOwner Joins Bt°kef °r Licensee in a lawsuit fur the ralurn °f dep°sil m°nles' Owner will pay Br°k*r's and Licensee's
judgment) against a pennsylvania real estate hcenese because of fl'aud, misrepres ,
transaclior, The Fund repa~s I~rsons who hav~ not be*n able to collect the judgment after trylag Il lawful ways to do so.
For complete details about the Fund, call (717) 783-3~$$, or (800) 822-2113 within pennsylvania, or (717)783-4~54 outside
TRANSFER OF THIS CONTRACT .... . ·
A. Brok~ will notif~ Owner hnmediataly m writing if Broker transfo~ this Contra~t t° an°ther bt°kef when'
1. Broker stops doing business, OR.
2. Broker forms a new real estele business, OR.
3, Brokerjoinshisbusinesswithano~.er. ~, e,--~..t~ Rmker will notifv Owncr immediately in writing
Owner a~:z that Broker may il~sthr this Conira~ lo eno ..............
when a Ira~sfer occt~ or Broker will lose the right to transfer ~ Coal~anL Owner will follow all ~quir~ments of this
Federal and state laws in ~g.. ~,x I:~,I,41LIAL STATUS (children under 18 y~ar~ of aga), AGE (40 or
CREED, SEX, DISABILITY (physical or mmmll, ?_-~.-~ ..... o, m~r~D'v OR GUIDE ANIMALS, or tho FACT OF
oiler), NATIONAL ORIGIN, USE OR HAIqDLINIJ/i BAI~ u't~
RELATIONSHIP OR ASSOCIATION TO AN INDIVIDUAL KNOWN TO HAVE A DISABILITY as,r~so~ for r~fusing
property.
25 ALT~RNAT1VETRAIqSA_CTIO~ ~.o,,~.manvotherlransantiol~,indudin§butnotlimitedtosale.,lease, excbenge, oPfi°n
ONCE OWNER ENTEI~ lilly m~
29 BANKRUPTCY ..... v ,~.~.....,,~-~oamesunderthe/orisdlclionofabankruptcy¢ou~- If Owner
30. ARBITRATION OF DISPUTES._ ...... di~,,~ betweenihem that c~mot be amisabiy r~solved. At~r written demand for
When si~a~cl by both !~iies, ~is is a legal contraa.. . ·
· e to advise and r~prm~at Owner concermng
investigate any such matt. unless expr~sly agreed, to m wfi~.gn bsny~B~r ° sk~.~ oO~i O~'m~r wif~l 1 il~Cs ok~°~y loend '~w~:;,:
OmWu sntelgh: lliseacd olnh ~r access u m,, Notice ,, a~,pt~] bI the ~atai~al Estate CommiSsion at 49 Pa. Code §,,.3,6. All Owaers
...... .' _ .......
N~q~~dawa¥ lsl~ a 'a 31411 .....
BROKER(CompanyN O.~ . TYGROUP 1HC.
ACCEPTED BY · ~ ~o oi!~V llll,1. PA 170fil-0338
Mailing)~~ltlL ~0141 38
Phone #s ~7}7-761-8106 FAX # 717-761-432~Z
E-MaR: slker RG elco
Page4of4
ADDENDUM "A' TO L~TI]qO AOR.F, EMENT .
RE: PROPERTY _~'~/ // ~ ~ ~ // ~
DATE OF AG~
1) Buyer pays for all studies
la) Copies of all studies go to Sellers i~ oontmot falls thr~
2) Buyer pays I% oftransf~rtax.
3) Land to t~ sold "as is".
4) All offers or inquires shall be in writing to ail l~rties. They shall give all dgtails fit th~ o1~ that alt pa~es
can aoo~pt, r~j~ or modify.
A 10% deposit is re,lUCked'from any Buyer wishing Sellers to take thc prol~rty off the market for a
reasonable am. oont of lime. A "reasonable amOum oftin~ is to be negotiatezl ba-we~n the Buyers and the
Sellers. This 10% deposit will be non-refundable.
BROKER
DRAFT
AGREEMENT OF SALE/OPTION
THIS AGREEMENT OF SALE/OPTION ("Option/Agreement"), made and entered into this day
of ,2002, by and among YVONNE ESHLEMAN, individually and as Executrix of the
ESTATE OF FREDERICK M. ESHLEMAN, of Savannah, Georgia (hereinafter called 'Eshleman"), MARLIN
L. LEHMER and ALICE F. LEHMER, husband and wife, of Mechanicsburg, Pennsylvania (individually and
collectively celled "Lehmer"), and THE RIMMER FAMILY TRUST, by its Trustee, BRANCH BANKING &
TRUST CO., of Pinehurst, North Carolina (hereinafter celled "'i'rust") (Eshleman, Lehmer and Trust are
hereinafter sometimes collectively referred to as "Seller") and MARK R.T. SIMPSON, of Camp Hill,
.Pennsyi_vania (hereinafter called "Simpson").
BACKGROUND
A. Seller is the owner of two (2) unimproved parcels of real estate situate in Silver Spring
Township, Cumberland County, Pennsylvania, which said parcels are shown and described on Exhibit A,
attached hereto and made part hereof.
B. As shown on Exhibit A, the two (2) parcels of real estate are designated as "Parcel 'A'" and
"Parcel 'C'". The eastern most parcel (designated as Parcel "C") is landlocked.
C. The two (2) parcels (designated as Parcel "A" and Parcel "C" on Exhibit A) are hereinafter
collectively called the "Properb/'.
D. Simpson desires to obtain the exclusive option from Seller to purchase the Property, without
being obligated to do so, upon the terms and conditions hereinafter set forth, and Seller desires to grant said
option to Simpson under said terms and conditions.
E. Seller and Simpson desire to confirm their understanding in writing.
NOW, THEREFORE, Seller and Simpson, each intending to be legally bound, agree as follows:
o'[~.=55-{~0001~.16.027.~,2.0'~'JRD/LAR/159305.3
1. Background. The background set forth above is incorporated herein.
2. Subject Real Estate. As set forth above, the real estate which is the subject of this
Option/Agreement are two (2) unimproved parcel containing, in the aggregate, 61 acres, more or less.
situate in Silver Spring Township, Cumberland County, Pennsylvania. The two (2) parcels 'designated as
Parcel "A" and Parcel "C" (as shown and described on Exhibit A, attached hereto and made part hereof).
Parcel "A" and Parcel "C" are hereinafter collectively called the "Property".
Grant of Option. Seller hereby grants to Simpson the exclusive right and option ("Option") to
Property upon the terms and conditions set forth in this Option/Agreement.
4. Term. The term of this Option ("Option Term") shall commence on
2002 and shall continue for a pedod o[ eighteen (18) consecutive months, ending or expidng at 5:00 p.m.
(prevailing time) ,200 .
5. Initial Option Consideratio~/Addiflonal Option Consideration.
A. Initial Option Consideration. As consideration for Seller granting the Option to
Simpson to purchase the Property, Simpson shall pay to Seller, upon the execution of this
Option/Agreement, the sum of Ten Thousand ($10,000.00) Dollars ("Initial Option Consideration"),
which said sum shall be credited against the Purchase Price (as hereinafter defined) for the Property
in the event Simpson exercises Simpson's Option to purchase the Property.
B. Additional Option Consideration. In addition to the Initial Option Consideration,
Simpson shall also pay to Seller, Additional Option Consideration ("Additional Option Consideration")
in the amount and on the due date set forth in Paragraph 5-C. The Initial Option Consideration,
together with each Additional Option Consideration paid by Simpson to Seller, shall be applied to the
Purchase Price as set forth in the Schedule in Paragraph 5-C.
C. Schedule - Initial Option Consideration/Additional Option Consideration. The
due date with respect to each payment of Additional Consideration to be made by Simpson to Seller,
if Simpson desires to continue the Option, the amount of each Additional Option Consideration
2
0.12955.O0001/7~7.~._~.."'~'JRD/LAR/159305.3
payment to be paid by Simpson to Seller and the application of the Initial Option Consideration and
each Additional Option Consideration paid by Simpson to Seller Shall be as follows:
Initial Option Amount of Initial Option
Consideration/Additional Consideration/Additional Amount to be Applied
Option Consideration Due Date Option Consideration to Purchase Price
Initial Option Consideration Execution of this $10,000.00 $10,000.00
Option/Agreement
Additional Option ConSideration ,2002 $10,000.00 $10,000.00
(No. 1)
Additional Option Consideration ,200__ $10,000.00 $10,000.00
(No. 2)
Additional Option Consideration ,200__ $10,000.00 $10,000.00
(Ne. 3)
Additional Option Consideration ,200._ $10,000.00 $10,000;00
(No. 4)
Additional Option Consideration ,200__ $15,000.00 $15,000.00
(No. 5)
Additional Option Consideration ,200._ $15,000.00 $ 5,000.00
(No. 6)
Additional Option Consideration September 30,2003 $15.000.00 $ 5.000.00
(No. 7)
Total 1595,000.00 $75,000.00
D. Payment/Additional Option Consideration. If Simpson desires to continue the
Option Term (and Simpson's Option) then, in that event, Simpson shall pay to Seller the Additional
Option Consideration in the amount and by the due date specified in Paragraph 5-C. If Simpson
shall fail to make any Additional Option Consideration by its due date then, in that event, Simpson's
Option and th{s Option/Agreement shah terminate at 5:00 p.m. (prevailing time) on the due date.
3
0.1295~-80001~7.'~ 3._n~_'J RD/LARJ159305.3
E. Process/Payment.' Simpson has, either at pi' 'prior to the' execution of this
Option/Agreement, paid the initial Option Consideration to Seller and Seller acknowledges receipt of
the same. With respect to the Additional Option Consideration payments, Simpson shall forward a
check to Seller's designee, as described in Paragraph 6, and Seller's designee shall be obligated to
disburse each Additional Option Consideration payment to Eshleman, Lehmer and Trust. Simpson
Shall have no obligation, with respect to the disbursement of the Additional Option Consideration paid
to the designee. The Initial Option Consideration, to include any Additional Option Consideration
paid, shall be~nonrefundable and shall be retained by Eshleman, Lehmer and Trust, except as
otherwise provided in this Option/Agreement.
6. Seller's Designee. Seller hereby designates Johnson. Duffle. Stewart & Weidner (Simoson's
attorneys3. 301 Market Street. P.O. Box 109. Lemovne. Pennsylvania 17043-0109.
Grcu~, "~ ~ Om.... 33-", r,.,,,,,, u~,, ~ ...... , .... '~ 700! 9332, as Seller's designee for the purpose of
receiving and disbursing the Initial Option Consideration and ea~hany Additional Option Consideration
payment made by Simpson in accordance with the terms and conditions of this Option/Agreement.
Eshleman. Lehmer and Trust shall each. have the rioht to direct Seller's desi,anee as to whether one-third
(1/3~ of the Initial Option Consideration and one-third (.1/3~ of each Additional Option Consideration payment
made bv SimDson in accordanCe with the terms and conditions of this Option/Aareement shall be disbursed
directly to Eshleman. Lehmer or Trust. as applicable, or. in the alternative, that the applicable oortior~ of the
Irfitial Option Consideration and any Additional Option Consideration payment actually made shall be held
an interest beadn.a escrow account with the interest charaeable and payable to Eshleman. Lehmer or Trust,
as applicable. If Eshleman. Lehmer or Trust shall elect to hold the applicable Dortion of the Initial Option
Consideration and any Additional Option Consideration payment made in an interest beadn,a escrow
account by Seller's designee. Eshleman. Lehmer or Trust shall have the d,aht to direct Seller's desi,anee,
writina, to (i) terminate the escrow account and distribute all funds in the escrow account, including th~.
interest accrued thereon to Eshleman. Lehmer or Trust. as applicable. (ii/ distribute a portion Of the
escrowed funds, to include all or a portion of the accrued interest, to Eshleman. Lehmer or Trust. as
applicable, and (iii3 to distribute all future Additional Option Consideration payments directly to Eshleman,
Lehmer or Trust;. as applicable. Eshleman. Lehmer and Trust shall, upon the execution of thi,~
Ootion/A?reement. provide written directions to Seller's desi,anee with respect to the Initial Optior~
Consideration and Additional action Consideration payments to be received. Eshleman shall provide th~,
Estate federal identification number: Lehmer shall provide the social security, number for Marlin L. Lehmer or
,012955-00001~7.~ 2.O~JJRD/LAPJ159305.3
Alice F. Lehmer. and Trust shall Dmvide the Trust's federal identification number. Eshleman. Lehmer and
Trust shell provide an address to Seller's designee to which the annual Form 1099 (aertainino to interest
earninos) shall be sent. Eshleman. Lehmer and Trust acknowiedae, by execution of this Ootion/Aoreemer~t,
that an,v federal, state or local income taxes with respect to Initial Ootion Consideration and any AdditionRI
Ootion Consideration oa.vments, to include the interest earned with respect to the escrowed funds (whether
distributed or accumulated~ shall be their resoective obligations. Seller's desionee shall have the ric~ht tr
resign uoon fifteen !15! calendar days afior written notice to Eshleman. Lehmer and Trust. In the event of a
disDute with resDect to an? of the escrowed funds. Seller's designee shall have the doht. at Seller's
designee's oofion, to Day all escrowed funds to a court Of comoetent iurisdiction. Seller's designee shall
have no obli?ation to Eshleman. Lehmer or Trust exceDt for willful misconduct Dertainino to the escrowed
funds and the distribution of the escrowed funds. Seller's desionee shall have the doht to charge a
reasonabJe fee for the services oertaining to the escrowed funds to Eshleman. Lehmer or Trust deoer~dirlcj
uoon the nature of the services provide to each.
7. Termination of Option, If Simpson shall fail to pay the Additional Option Consideration
payments as required pursuant to Paragraph 5, then this Option/Agreement, to include the Option, shall
immediately terminate effective as of 5:00 p.m. (prevailing time) on the due date. Upon the termination of
this Option/Agreement, the Initial Option Consideration and all Additional option Consideration payments
paid by Simpson to Seller shall be retained by Seller and shall not be refunded to Simpson.
8. Exercise of Option. Simpson may exemise Simpson's Option any time during the Option
Term by providing notice to Seller (or Seller's designee) of Simpson's exercise of Simpson's Option. The
day upon which the notice is given and upon which Simpson exemises Simpson's Option shall hereinafter
be referred to as the "Option Exemise Date". Simpson shall, in connection with Simpson's notice to Selier
(or Seller's designee) of Simpson's exercise of Simpson's Option, pay to Seller (or Seller's designee) an
additional Deposit ("Deposit") in the amount of Ninety Thousand ($90,000.00) Dollars, which Deposit shall
be applied to the Purchase Price and shall be held by Seller's designee in an interest bearing account with
the interest chargeable and payable to Seller. The De.Posit shall be held b.v Se~ler's desionee in an interest
bearino, escrow account and. notwithstandin? the Drovisions of Para.~rach 6. shall not be released b~v Seller's
desigl3ee to Seller exceot at the time of settlement or otherwise as Drovided in this Option/Agreement.
9. Simpson's Right of Access/Property, Simpson shall have the right, dudng the Option
Term, to enter upon the Property to conduct, at Simpson's scle cost and expense, such inspections, tests,
5
q12955-00001 ~, 16.Q27.". 2.O~JRD/LAPJ159305.3
studies, surveys, reviews, evaluations, examinations and inquiries as Simpson may deem appropriate and to
take such other action as Simpson desires to facilitate Simpson's development of the Property. Seller
agrees to cooperate fully with Simpson. To the extent reasonable and feasible, such inspections, tests
surveys, reviews, evaluations, examinations and inquiries shall be conducted Jn the manner that causes
minimum interference with the mowing and hay-making activities conducted on the Property.
Simpson shall hold Seller harmless from and against any loss, claim, cost or expense (but not or
against any diminution in the value of the Property occurring as a result of the information obtained by
Simpson) suffered by Seller as a result of any personal injury or Property damage resulting from anti3/upon
the Property by Simpson, Simpson's agents, employees, licensees or other representatives. Simpson shal
restore the Properly to the prior condition, to the extent reasonably practicable, to the reasonable
satisfaction of Seller in the event that settlement (as hereinafter described) does not occur unless such non-
occurrence is a result of willful failure of Seller, without legal cause or excuse, to settle. Simpson shall
to Seller evidence of general liability coverage satisfactory to Seller prior to Simpson exercising
Simpson's right of access provided in this Paragraph 9.
10. Contract for Purchase and Sale of the Property. If Simpson shall exercise Simpson's
Option dudng the Option Term then this Option/Agreement shall, on the Qption Exercise Date, become a
contract for the purchase and sale of the property and shall, subject to the same, bind Seller to sell and
convey the Property and Simpson to purchase and pay for the Properly. As hereinafter used in this
Option/Agreement, the terms "Option/Agreement" shall refer to either the Option or the purchase and sale
contract formed by the exercise of the Option, as the context may require.
11, Purchase Price. Simpson shall pay to Seller for the Property the purchase price ("Purchase
Price") in the amount of One Million Eight Hundred Thousand ($1,800,000.00) Dollars, which said Purchase
Price shall have been or paid as follows:
A. Initial Option Consideration. The Initial Option Consideration set for-th in Paragraph
5-A shall be applied to the Purchase Price.
B. Additional Option Consideration. Any Additional Option Consideration payment
made by Simpson to Seller shall, in accordance with Paragraph 5-C, be applied to the Purchase
Price.
0.12955-00001~7,! 2,O~-'JRD/LAPJ159305.3
C. Deposit/Option Exercise Date. Simpson shall, at the time Simpson shall provide
written notice of Simpson's intention to exercise the Option, pay to Seller an additional Deposit as
described in Paragraph 8 which said Deposit shall be in the amount of Ninety Thousand ($90,000.00)
Dollars. The additional Deposit shall be held by Seller's attorney or designee in an interest bearing
escrow account, with the interest chargeable and payable to Seller. The additional Deposit shall be
applied to the Purchase Price.
D. Balance of Purchase Price. The Purchase Price, less the Initial Option
Consideration, less any Additional Option Consideration payments paid by Simpson to Seller ant
less the Deposit, shall be paid by Simpson to Seller at the time of settlement, as hereinafter
described, in full, by wire transfer, title insurance company check or certified check.
E. Payment/Net Proceeds. Simpson shall pay to Seller at settlement, as hereinafter
described, the balance of the Purchase Price as described in Paragraph 1 l-D, less any amount
payable from said net proceeds to settle any mortgage, judgment or other encumbrance with respect
to the Property, in three (3) but equal checks. One check shall be payable to Eshleman, one check
shall be payable to Lehmer and one check shall be payable to Trust. In the event that one (but not
all) of the Seller (Eshleman, Lehmer or Trust) shall be deemed to be liable for a claim, charge or
expense related to the Property, then such claim, charge or expense shall be paid out of the net
proceeds payable to Eshieman, Lehmer or Trust, as applicable. If for any reason it is not possible to
pay such claim, charge or expense, the proceeds payable to Eshleman, Lehmer or Trust, as
applicable, may be paid into a court of competent jurisdiction until such time as the liability for such
claim, charge or expense may be resolved and payment thereof made or, in the alternative, under
such terms and conditions as shall be mutualty agreeable among Simpson and Seller, or, as
applicable, Eshleman, Lehmer or Trust. Notwithstanding anything set forth in this Paragraph 11-E,
Simpson shall have the right, at Simpson's discretion, to extend settlement, as hereinafter described,
in order to resolve any issue pertaining to any claim, charge or expense which is payable Eshleman,
Lehmer or Trust which may be necessary to ensure that Seller is conveying the nature and quality of
title required pursuant to Paragraph 1
12. Settlement. Settlement, with respect to the conveyance of the Property by Seller to
Simpson, shall occur the later of thidy (30) calendar days after the Option Exercise Date. Seller
7
0.12955-0(]001 ~7, ! 2..n~-~JRD/LAPJ159305.3
acknowledges that the Option Exemise Date may occur pdor to the expiration of the Option Term.
Settlement shall occur at a time, date and place mutually agreeable to Seller and Simpson. If Seller and
Simpson cannot agree as to the time, date and place of settlement then, in that event, settlement shall occur
on the thirtieth (30m) calendar day after the Option Exercise Date at 2:00 p.m. (prevailing time) in the law
offices of Johnson, Duffle, Stewart & Weidner, 301 Market Street, Lemoyne, Pennsylvania. In the event that
the thirtieth (30m) calendar day shall be a Saturday, Sunday or holiday, then settlement shalt occur at the
same time and place on the next following business day. Time shall be deemed to be of the essence with
respect settlement.
13. Desd/Title ' .
A. Deed. At the time of settlement, Seller shall convey the Property to Simpson by
special warranty deed.
B. Title. Seller shall convey good and marketable, fee simple rifle, free and clear of all
liens and encumbrances, subject to only to such easements, restrictions, servitudes, condition~ and
covenants of record or visible on the ground, all zoning ordinances and other governmental
regulations effecting the Property, including all condemnation proceedings of record, and such title as
shall be insurable by Commonwealth Land Title Insurance Company or other reputable title
insurance company doing business in the Commonwealth of Pennsylvania at its customary and
usual rates.
C. Title Examinations.
(1) preliminary. Title Examination, Simpson shall cause aR~ tirie
examination ef-the-ti~e with respect to the Property to be completed within fortv (45~ calendar
days from the date of the execution of this Ootion/A, greement. Simpson shall provide t~
Seller wdtten notice of an,v title objection or relevant information within seven,N-five (75~
calendar days from the date of the execution of this Option/Agreement, Seller shall advise
Simoson. in writing, within thirty (30! calendar davs after receipt of any title obiections what
steps or orocedures are goin? to be taken in order to resolve anv such title obiecrion or
?biections.
8
012955-00001~7.! 3.O~-tJRD/LAPJ159305.3
(2) Final Title Examination. Simoson shall within five (5~ calendar
followine the Option Exercise Date cause a final examination of the title with respect to
~.~ ,~,~, ~n~ ca!endar dcy: "'~"- *" thc 07.rich: .... ~ n:+.. If any new title obiection is
discovered as part of the final title examination then. in that event. Simoson shall provide.
written notice of such title obiection or objections within ten (10) calendar days after receipt of
the final title examination and Seller shall advise Simpson within ten (10~ calendar days after
receipt of said notice as to what step or procedures are ooino to be taken in order to resolve.
the flew title obiection or objections.
14. Adjustment/Settlement. At the time of settlement county and township real estate taxes and
school district real estate taxes shall be prorated as of the date of settlement based on the calendar or fiscal
year of the taxing authority.
15. Expenses/Settlement. The expenses of settlement shall be paid as follows:
A. Title Insurance Premium. Simpson shall be obligated to pay the title insurance
premiums for the title insurance commitment and title insurance policy, to include endorsements
required by Simpson's lender.
B. Deed. The cost of preparing, executing and acknowledging the deed or deeds or any
other instruments in order to convey title to Simpson in the manner described in this
Option/Agreement shall be paid by Seller.
C. Realty Transfer Taxes. Seller shall pay one-half (1/2) of the applicable realty
transfer taxes assessed in connection with the conveyance of the Property. Simpson shall pay one-
half (1/2) of the applicable realty transfer taxes assessed in connection with the conveyance of the
Property.
D Recording Costs. Any costs of recordation of documents pertaining to settlement
shall be paid by Simpson.
9
0~ 29§5-00001 ~7.~. 3..~"'JRD/LAPJ159305.3
E. Discharge Of Liens. Simpson may pay and discharge any liens or other monetary
encumbrances on the Property out of the balance of the Purchase Price subject to the provisions of
Paragraph 11-E.
16. Representations/Seller. Seller hereby represents and warrants to Simpson as follows
Which representations shall be deemed to be made by Seller to Simpson also as of the day of settlement:
A. Possessory Rights. Except a verbal arrangement with a farmer to make hay, there
are no other third parties in possession of the Prepedy or any part of the Property and them are no
lessees, tenants at sufferance or trespassers, except the verbal arrangement for the farmer to make
hay.
B. Condemnation. There is no pending or threatened condemnation or similar
proceeding or assessment affecting the Property, or any part thereof, and to the best of knowledge
and belief of Seller, no such proceeding or assessment contemplated by any governmental authority.
C. Violation of Applicable Law. To the best of Seller's knowledge,' information and
belief, Seller has complied with all applicable laws, ordinances, regulations, statutes, rules and
restrictions, including all environmental requirements, relating to the Property, or any part thereof.
Seller has not received any notice, written or otherwise, of a violation or alleged violation of any laws,
ordinances, statutes, rules or regulations applicable to Seller or the Properly, or both.
D. Other Agreements. There are no other agreements, written or oral, between Seller
and any other person for the sale or transfer of the Property or any portion thereof.
E. Defects. To the best of Seller's knowledge, there are no patent defects in, on or
under the Property; nevertheless, Seller has disclosed to Simpson the existence of one or more
building foundations and miscellaneous debds located on the Property.
F. Hazardous Substances. To the best of Seller's knowledge, there are no hazardous
substances located in, on or under the Property or adjacent to the Property. For the purposes of this
Option/Agreement, the term "hazardous substances" include any and substances identified as such
10
0.12~55-00001/7~7.". _~.~JRD/[.AP,/159305.3
under the Comprehensive Environmental Responses, Compensation and.Liability Act of 1980, as
amended, 42 U.S.C. §§9601(14) and 9602.
G. Litigation. There is no pending or threatened litigation between Seller and any other
person or entity regarding the Property or Seller's ability and power to convey the Property in
accordance with the terms and conditions of this Option/Agreement.
17. Cooperation/Simpson. Seller agrees to cooperate with Simpson in making application for
any necessary zoning change, conditional use application or other governmental approvals, including, but
not limited to, subdivision or land development approval. Seller further agrees, if requested by Simpson, to
make application in Seller's name for any necessary zoning change, conditional use application or for any
other governmental approvals, at no expense to Seller and without seeking any compensation or additional
consideration by reason of the cooperation required under this Paragraph 17. Any zoning change shall be
limited to a change to Commercial or Industrial zoning. Seller hereby specifically authorizes Simpson to
submit a land development plan, to include, if required, a subdivision plan pertaining to the Property. Seller
agrees, if required by Silver Spring Township, to execute any land development or subdivision plan, or both
>revided, however, that Simpson shall be and remain responsible for any and all costs incurred in
connection with any subdivision or land development plan and no cost, including municipal securi~,
municipal review fees, recording costs or the like, shall be the obligation of Seller. Notwithstanding the
foregoing, Simpson agrees that even if a land development plan or subdivision plan has been approved by
Silver Spdng Township that Simpson agrees that if Simpson exercises the Option that settlement with
respect to the Property shall occur prior to the recording of any subdivision plan or land development plan, or
both.
18. Condemnation. As set forth in Paragraph 16-B, Seller represents and warrants to Simpson,
to the best of Seller's knowledge, that Seller has no knowledge of any proceedings instituted by any
municipal, state or federal agency to condemn or acquire the Property or any portion of the Properly by
eminent domain or otherwise. In the event of any such proceedings shall exist or be instituted, this
Option/Agreement shall terminate, at Simpson's option, in which event all rights and obligations of the
par[les hereunder shall cease and the Initial Option Consideration and any Additional Option Consideration
paid by Simpson to Seller shall be refunded by Seller to Simpson. If Simpson does not terminate this
Option/Agreement within thirty (30) calendar days after written notice from Seller of such proceeding (as
whether initiated or existing), this Option/Agreement shall continue in full force and effect. Any
11
(~ 12955-00001/7.16 .~;~,7. *. 2.-n~-~J RD/I.~PJ159305.3
condemnation award paid to Seller prior to settlement shall be paid over to Simpson, or, if applicable, shall
be a credit against the Purchase Price. At settlement, Seller shall assign Seller's right to any condemnation
award to Simpson. Seller shall promptly notify Simpson of any condemnation prOceedings instituted during
the Option Term. Simpson shall have no right to participate in the condemnation proceedings, except if
permitted by law and if to do so would result in no prOcedural or substantive prejudice to the claim of Seller.
Simpson may assert any claim which is permissible under the applicable eminent domain law.
19. Default By Simpson/Remedies Of Seller. Following the Option Exemise Date, if Simpson
fails to comply with any or all of the material obligations, covenants, warranties or agreements to be
performed by Simpson under and p. ursuant to the terms and provisions of this Option/Agreement and if such
default is not cured within thirty (30) calendar days after written notice by Seller to Simpson, as Seller's sole
and exclusive remedy, terminate this Option/Agreement and retain the Initial Option Consideration, any
Additional Option Consideration paYments made by Simpson to Seller and, if applicable; the Deposit,
whereupon this Option/Agreement shall be null and void without further liability either party to the other. In
addition to the foregoing remedy, in the event that Simpson does not comply with the obligations of
Paragraph 10 with respect to restoration of the Property then, in that event, Seller shall have the continuing
right, following the termination of this Option/Agreement to recover from Simpson the costs necessary to
restore the Property.-
20. Default By Seller/Remedies Of Simpson. If Seller cannot deliver the quality of title required
pursuant to Paragraph 13 or in the event Seller fails to comply with any other matedal obligations,
covenants, warranties or agreements to be performed by Seller under and pursuant to the terms and
conditions of this Option/Agreement, and if such default is not cured within thirty (30) calendar days after
written notice, then Simpson may, at Simpson's option, terminate this Option/Agreement, receive a refund of
the Initial Option Consideration, any Additional Option Consideration payments paid by Simpson to Seller
and, if applicable, the Deposit or, in the alternative, Simpson may pursue specific performance.
21. Broker/Real Estate Commission. Seller's real estate broker is Commercial Realty Group
and Simpson's real estate broker is Benchmark Commercial Realty. Seller will pay all real estate brokerage
commission due and payable in connection with the conveyance of the Property and said commission shall
be divided between Commercial Realty Group, inc. and Benchmark Commercial Realty. if there is a dispute
as to the allocation of the real estate commission, said commission shall be held in escrow b,v Seller's
12
0.12955-.00001/7.16.~77, 2.92~JRD/LAR/159305.3
desi.onee un~l Commercial Realty Group, Inc. and Benchmark Commercial Realty resolve any such dispute
or the disoute is resolved bv a court of competent .iurisdiction. or otherwise.
Subject to the foregoing provision, each party covenants and agrees to defend, indemnify and save
the other harmless from and against any actions, damages, real estate commissions, fees, costs and
expenses (including reasonable attorney's fees), resulting or arising from any other claim for commissions,
fees, costs and expenses payable to any other real estate broker or agent with which the indemnifying party
has dealt, relating to the execution of this Option/Agreement or the purchase and sale of the Property, as
applicable. The terms and conditions of this Paragraph 21 shall survive settlement.
22, Possession. Seller shall deliver possession of the Property to Simpson at the time of
settlement, free and clear of all uses and occupancies.
23. Recording~ This Option/Agreement shall not be recorded in the Office of the Recorder of
Deeds of Cumberland County, Pennsylvania or any other office or place of public record, and if Simpson
shall record this Option/Agreement or cause or permit the same to be recorded, Seller shall have the fight, at
Seller's option, to elect to treat such act as a material breach of this Option/Agreement. Simpson shall not
do or permit any acts hereunder which would impair Seller's equity in or title to the Property.
24. Assignment. Simpson shall have the right, without the prior written consent of Seller, to
assign this Option/Agreement, to include Simpson's rights under this Option/Agreement and Simpson's
interest in the Property, to a limited partnership, limited liability company or other entity organized by
Simpson in which Simpson retains an ownership interest. In the event Simpson shall elect to assign this
Option/Agreement, together with Simpson's rights and obligations under this Option/Agreement and
Simpson's interest in the Property, Simpson shall provide written notice of such assignment to Seller.
Further, with the exception of a permitted assignment by Simpson to an entity organized by Simpson as
previously described, Simpson shall not otherwise have the right to assign, set over or transfer this
Option/Agreement, Simpson's rights and obligations under this Option/Agreement or Simpson's interest in
the Property without the prior written consent of Seller, which said consent shall not be unreasonably
withheld, delayed or conditioned. Notwithstandin.o any assignment of this Option/Agreement. SimDson shall
remain liable with resoect to Simcson's obligations oursuant to this Ootion/A.oreement unless otherwise
a?reed, in writin.~, bv and between Simoson and Seller.
13
0.129554)0001~JRDILAR/159305.3
25. Notices. All notices required or permitted to delivered under the terms of this
Option/Agreement shall be deemed received when sent by United States mail, postage prepaid, certified
mail, return receipt requested, addressed to Seller or Simpson (or Simpson's permitted assignee), as the
case may be at the followlng address:
If to Selte:
tf to Simpson:
Copy to:
(which shall not constitute notice)
Charles E. Shields, II1, Esquire
6 Clouser Road
Mechanicsburg, PA 17055
P.O. Bxx 33~
Camp H!![, PA 17001
Mark R.T. Simpson
3609 Gettysburg Road
Camp Hill, PA 17011
JerTy R. Duffle, Esquire
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
26. Waiver. Failure of Seller or Simpson to insist On strict performance of the other by the terms
of this Option/Agreement, shall not be construed as a waiver, release or relinquishment of anY right with
respect thereto.
27. Counterparts/Facsimile Execution. This Option/Agreement may be executed in more than
one counterpart, each counterpart shall be deemed to be one Option/Agreement. This Option/Agreement
may be executed by any part and transmitted to one or more of the other parties by facsimile transmission.
When executed and delivered in this manner, this Option/Agreement shall be binding as though executed by
such party or parties on the odginal Option/Agreement.
28. Easements for Future Connection of Utilities. Subject to Simpscn's exercise of Simpson's
Option and if settlement occurs with respect to the Property, Simpson agrees within eighteen (18) months
from the date of settlement, at Simpson's expense, to extend water and sanitary sewer of sufficient capacity
to serve Seller's additional seventy (70) acre tract, more or less, upon the Property to within five hundred
14
7177.955-00001~7. ~ 3,0~-~JRDILAPJ159305.3
(500) feet of the existing legal right-of-way of U.S. Route 1-81 or to such other location or locations upon the
Properly as mutually agreeable to Seller and Simpson. Simpson shall prior to the Option Exercise Date
provide to Seller secudty (to include bond [Best rating of "A" or better]) in favor of Seller and acceptable to
Seller to guarantee Simpson's obligations set forth in this Paragraph 28 with respect to the extension of
sanitary sewer and public water. Seller shall have the dght to assign Seller's rights pursuant to this
Paragraph 28 to a third party purchaser or buyer of the seventy (70) acre tract, more or less, which is
currently owned by Seller, provided, however, that Simpson's obligations pursuant to this Paragraph 28 are
only effective if settlement occurs with respect to the Propert3/. Simpson agrees, in connection with
preparation of the preliminary land development plan to submit a copy of the same to Seller and that the
actual location or locations for the extension of the public water and the public sanitary sewer system on the
Property shall be as mutually agreed upon by Simpson and Seller. In addition, Simpson agrees to grant to
Seller sanitary sewer easement, water easement and other utility easements upon the Property to facilitate
the future development of the seventy (70) acre tract owned by Seller. The locations of the public sanitary
sewer easement, water easement and other utility easements shall be as mutually agreed by Simpson and
Seller. Nothing set forth in this Agreement or otherwise shall require Seller to contribute any funds, including
tapping fees, connection fees or other costs, in connection with the extension of the public sanitary sewer
system and the public water distribution system upon the Property. It shall be Simpson's obligation, at
Simpson's expense, to extend water and the sanitary sewer upon the Property at the mutually agreeable
location or locations in order to facilitate the future development of the seventy (70) acre' tract. The
provisions of this Paragraph 28 shall survive settlement and shall not merge into the Deed conveying the
Property.
29. Time of the Essence. Time is to be deemed of the essence with respect to the terms and
conditions of this Option/Agreement.
30. Governing Law. This Option/Agreement shall be govemed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
31. Successors and Assigns. This Option/Agreement shall apply to, inure to the benefit of and
be binding upon and enforceable against Eshteman, Lehmer, Trust and Simpson (to include Simpson's
permitted assignees), and their respective personal representatives, heirs, successors and permitted
assigns, as applicable.
15
.012955-00001/7.1e.0~7, ! 2.~JJRD/LAPJ159305.3
32. Entire Agreement. This Option/Agreement contains all the terms, promises, covenants,
conditions and representations made or entered into by and among Seller and Simpson with regard to the
transactions contemplated in this Option/Agreement, and supersedes all pdor discussions and agreements
whether written or oral, between or among Seller and Simpson with respect thereto. This Option/Agreement
constitutes the sole and entire agreement between Seller and Simpson.
33. Modification. This Option/Agreement shall not be modified, changed or amended unless
such modification, change or amendment is set forth in writing and signed by Seller and Simpson with the
formalities hereof.
34. Survival. Except as expressly provided in this Option/Agreement=~=~
~, none of the terms and conditions of this Option/Agreement shall survive settlement and said
terms and conditions shall be deemed to merge into and become part of the Deed conveying the Prcpedy.
35. Current Zoning Classification. The Property is currently zoned Interchange.
36. Public Sewer and Public Water. Public sewer is not available to the Property. Simpson
shall contact the sewage enforcement officer of Silver Spring Township to determine the procedure to be
followed to construct and extend a public sewer system. The Property is not currently serviced by public
water.
37. Environmental Assessment. If Simpson shall cause an environmental assessment to be
made with respect to the Property, Simpson agrees to provide to Seller a copy of such environmental
assessment and Seller agrees to keep and maintain any information regarding such environmental
assessment confidential and shall not disclose any information unless required to do so by applicable law,
rule or regulation.
38. Impairment of Title. Simpson shall neither do nor permit any acts which would impair
Seller's title (le.oal or e(]uitab[e! with respect to the Property. Simpson agrees, by the execution of this
Option/Agreement. that Sim~)son shall not undertake anrV action that could lead to a mechanics' lien. other
lien or municipal assessment of any kind a?ainst the Propertv or Seller, Simpson shall indemnify and save
Se~ler harmless from any costs, cfaims, demands, suits er liability arising out of or relating to a violation of
the obligation of Simpson as set forth in this Paragraph 38.
16
I;)12955-00001/7.16.1~-7-~J RD/LAPJ159305.3
39. Indemnification. In the event that either party is named as a defendant in any third-party
litigation arising out of the other party's use of or activities in or upon the Property, the other party shall save,
defend, indemnify and hold the party so named harmless from any claims asserted in such litigation.
40 Survey S:mpccn
~ Simpson shall, at SimrOSOn's sole cost and expense: cause an accurate survey of
~he Pmoert~. to be completed by a licensed engineer or professional land surveyor and provide a coov to the
Seller within sixty (60) calendar days from the date of this O~)fion/A?reement.
41. Legal Fees. In the event of litigation by or among Simpson and Seller (to include, as
applicable, Eshleman, Lehmer or Trust) regarding their respective dghts, privileges, duties and liabilities
under this Option/Agreement, the losing party in such litigation shall pay to the prevailing party the costs
incurred by the prevailing party, including reasonable attorneys' fees and the costs of the prevailing party.
Further, in the event that Simpson or Seller (to include, as applicable, Eshleman, Lehmer or Trust) is named
as a defendant in the third-party litigation arising out of the other party's use or activities in or upon the
Property, the other party shall save, defend, indemnify and hold the party so named harmless from any claim
asserted in such litigation and all reasonable costs incurred by the indemnified part.v, in connection with said
litigation includin9. but not limited to. costs of liti.oation and reasonable attorneys' fees.
42. Existin~ Cemetar?. There is an existin.o cemeta~ constructed upon the ProDer'~.. Simpson
acknowled.~es that the cometary exists upon the Propert.v. and acknowled?es that there may be an implied or
expressed riclht of access in favor of a third natty or oadies with respect to the cameta~ which may
e e e r
43, Ancilla~ Administration/Estate of Frederick M. Eshelman. It will be necessa~ that an
ancillary, personal representative be aocointed for the Estate of Frederick M. Eshelman in the
Commonwealth of Pennsylvania. Eshelman. shalt, at Eshleman's sole cost and exaense, within sixty ('60~
calendar darVS from the date of this Option/A,oreement obtain the acDointment of the ancillary Dersor~¢l
reoresentative. Uoon aoDointment of the ancillary personal reoresentative., said ancillary, personal
representative shall execute a !cinder to this Oction/A¢reement agreeing to be bound bv the terms and
conditions of this Option/Agreement. In addition, all applicable Pennsylvania inheritance taxes, federal or
17
.012955..00001/7~7,! 2,9~JRD/LAPJ159305,3
estate taxes or any other taxes due and payable by the Estate of Frederick M. Eshleman Dertainin9 to the
sale of Property. shall be the sole and exclusive obli.oation of Eshleman. Eshleman shall, if applicable, thirty.
(30) calendar days rOrior to settlement, provide evidence that any reOruired federal or state tax returns or
amended returns have been filed and that an.v and all taxes due have been or will be maid. Eshleman shall,
if necessary, orovide financial secud~, in an amount and form acceptable to SimDson. to ouarantee
payment of any such tax. interest, penalty, or otherwise.
[This space intentionally left blank]
18
.0129554)0001 ~/7~L~;~.~7. ! 2.9~-~J RD/LAR/159305.3
IN WITNESS WHEREOF, the parties hereto, each intend to be legal bound, have caused this
Option/Agreement, to be signed and delivered as of the day and year first above written.
WITNESS:
Seller:
Eshleman:
Estate of Frederick M, Eshleman
By:
(SEAL)
Yvonne Eshleman, individually and as Executrix
Lehmer:
Marlin L. Lehmer
(SEAL)
Alice F. Lehmer
(SEAL)
ATTEST:
Trust:
The Rimmer Family Trust
Branch Banking & Trust Company, Trustee
(Assistant) Secretary
By:
Name:
Title:
WITNESS:
Simpson:
Mark R,T. Simpson
(SEAL)
19
'2
EXHIBIT A
I ;COMMERCIAL
EALTY GROUP, INC.
1300 MARKET STREET, SUITE 305, LEMOYNE, PENNSYLVANIA 17043
MAILING ADDRESS: P.O. BOX 338, CAMP HILL, PENNSYLVANIA 17001-0338
(717) 78%3106 FAX (717) 761-4322.
ENDORSEMENT/EXTENSION TO
EXCLUSIVE RIGHT TO SELL AGREEMENT
RE PROPERTY:
June 7, 2002 20 02
1-81 & PA ROUTE 114 S/E/C; 1230 NEW WII,I,OW MILL
ROAD, MECHANICSBURG, PA 17055
AGENT:
OWNERS:
KENNETH A. WA!,I~,R/COMMERCIAL REALTY GROUP, INC.
MARLIN L. & ALICE F. I,EIqMEtL YVONNE ESFfI,EMAN.
RIMIVIER FAMILY TRUST
DATE OF LISTING CONTRACT JANUARY 21, 2002
LISTING PRICE$2.200,000.00-TWO MIlJJON, TWO HUNDRED THOUSAND
[~ is understood and agreed that the above i/sting agreement shall be endorsed as follows:
I. Expiration date of agency tO be extended to
2. Listing price to be changed to: $
JANUARY 21~ 2003
N/A
All other terms & Conditions of the said listing agreemem shall remain unclmged and in
WITNESS
OWNER( Lk ' is)
WITNESS OWNER
ts)
AGENT
COMMERCIAL REALTY GROUP, 1NC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER E.
RIMMER, RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. and RICH
VALLEY ASSOCIATES
Defendants
REGARDING REAL ESTATE PREMISES
SITUATED AT: SOUTHEAST CORNER
OF THE INTERSECTION OF
INTERSTATE ROUTE 81 AND PA
ROUTE 114, CUMBERLAND COUNTY
TAX PARCEL NO. 38-06-0011-012
PROOF OF SERVICE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COLrNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-268 Civil
I, Craig A. Stone, do herby certify that a true and correct copy of the Complaint was served upon
Defendants, Yovonne Eshleman, individually and as Executrix of the Estate of Frederick M. Eshleman on
February 26, 2004 by serving a copy of the complaint on defendants' counsel as indicated in the attached
Acceptance of Service which service satisfies the requirements of the Pennsylvania Rules for Civil
Procedure.
BY: C r ~g A '~°96,~]~s ~uir e
Sup.'L:~. I./~. # 15907
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Dated:
393155vl
March 5, 2004
COMMERCIAL REALTY GROUP, INC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER
E. RIMMER, RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. and
RICH VALLEY ASSOCIATES
Defendants
REGARDING REAL ESTATE
PREMISES SITUATED AT:
SOUTHEAST CORNER OF THE
INTERSECTION OF INTERSTATE
ROUTE 81 AND PA ROUTE 114,
CUMBERLAND COUNTY TAX
PARCEL NO. 38-06-0011-012
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-268 Civil
ACCEPTANCE OF SERVICE
I accept service of the Complaint on behalf of Yvonne Eshleman, individually and as
Executrix of the Estate of Frederick M. Eshleman and certify that I am authorized to do so.
(Date)
P.O. Box 95
Mechanicsburg, PA 17055
Attorney for Defendant
Yvonne Eshleman, Individually and
as Executrix for the Estate of
Frederick M. Eshleman
392184vl
COMMERCIAL REALTY GROUP, INC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER E.
RIMMER, RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. and RICH
VALLEY ASSOCIATES
Defendants
REGARDING REAL ESTATE PREMISES
SITUATED AT: SOUTHEAST CORNER
OF THE INTERSECTION OF
INTERSTATE ROUTE 81 AND PA
ROUTE 114, CUMBERLAND COUNTY
TAX PARCEL NO. 38-06-0011-012
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, pENNSYLVANIA
: CIVIL ACTION o LAW
NO. 04-268 Civil
PROOF OF SERVICE
I, Craig A. Stone, do herby certify that a true and correct copy of the Complaint was served upon
Defendant, John Murphy on February 26, 2004, by serving a copy of the complaint on defendants'
counsel as indicated in the attached Acceptance of Service which service satisfies the requirements of the
Pennsylvania Rules for Civil Procedure.
BY:
MI
Cra
Sup.
DSIDE
/A.~ton~squire
~t. I.D. #15907
3401 North Front Stre~
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Dated: March 5, 2004
393156vl
COMMERCIAL REALTY GROUP, INC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER
E. RIMMER, RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. and
RICH VALLEY ASSOCIATES
Defendants
REGARDING REAL ESTATE
PREMISES SITUATED AT:
SOUTHEAST CORNER OF THE
INTERSECTION OF INTERSTATE
ROUTE 81 AND PA ROUTE 114,
CUMBERLAND COUNTY TAX
PARCEL NO. 38-06-0011-012
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-268 Civil
ACCEPTANCE OFSERVICE
I accept service of the Complaint on behalf of Defendant, John Murphy, and certify that I
am authorized to do so.
'(Dat~)/
Brace D. Foreman, E~quire
4409 North Front Street
Harrisburg, PA 17110
Attorney for Defendant
John Murphy
392188vl
COMMERCIAL REALTY GROUP, INC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER E.
RIMMER, RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. and RICH
VALLEY ASSOCIATES
Defendants
REGARDING REAL ESTATE PREMISES
SITUATED AT: SOUTHEAST CORNER
OF THE INTERSECTION OF
INTERSTATE ROUTE 81 AND PA
ROUTE 114, CUMBERLAND COUNTY
TAX PARCEL NO. 38-06-0011-012
iN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
:
: NO. 04-268 Civil
PROOF OF SERVICE
I, Craig A. Stone, do herby certify that a true and correct copy of the Complaint was served upon
Defendant, Marlin L. Lehmer on March 2, 2004 by serving a copy of the complaint on his counsel as
indicated in the at~ached Acceptance of Service which service satisfies the requirements of the
Pennsylvania Rules for Civil Procedure.
BY:
Crato,~_~. YObn Esquire
Sup. Ct. kD. ;907
3401 Nort~ F ~t Street
P.O. Box 5~
Harrisburg, PA 17110-0950
(717) 232-5000
& WOODSIDE
Dated: March 5, 2004
393054vl
COMMERCIAL REALTY GROUP, INC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER
E. RIMMER, RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A. ·
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. and
RICH VALLEY ASSOCIATES
Defendants
REGARDING REAL ESTATE
PREMISES SITUATED AT:
SOUTHEAST CORNER OF THE
INTERSECTION OF INTERSTATE
ROUTE 81 AND PA ROUTE 114,
CUMBERLAND COUNTY TAX
PARCEL NO. 38-06-0011-012
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-268 Civil
ACCEPTANCE OF SERVICE
I accept service of the Complaint on behalf of Defendant, Marlin L. Lehmer, and certify
that I am authorized to do so.
(Date)
Daniel Stem, Esquire
2650 North 3rd Street
Harrisburg, PA 17110
Attorney for Defendant
Marlin L. Lehmer
392186vl
COMMERCIAL REALTY GROUP, INC.,
Plaintiff
Vo
YVONNE ESHLEMAN,
et al.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-268 Civil
ENTRY OF APPEARANC~
TO:
Curt Long, Prothonotary
Please enter the appearance of Keefer Wood Allen & Rahal,
LLP by Charles W. Rubendall II and Donald M. Lewis III
of defendants Mark R.T. Simpson, 195 Associates,
Valley Associates (only), reserving their right
plaintiff's complaint, pursuant to Pa. R. Civ. P. 1017(a).
A single copy of all items sent by your office to the
attention of Mr. Rubendall alone will be satisfactory.
on behalf
Inc., and Rich
to respond to
Dated: March 11, 2004 By
KEEFER WOOD ALLEN & R3LHAL, LLP
Charles W. Rubendall II
I.D. # 23172
Donald M. Lewis III
I.D. # 58510
210 Walnut Street
P. O. Box 11963
Harrisburg, PA 17108-1963
717-255-8010 and 255-8038
Attorneys for defendants Mark
R.T. Simpson, 195 Associates,
Inc., and Rich Valley
Associates
CERTIFICATE OF SERVICE
I, Charles W. Rubendall II , Esquire, one of the attorneys
for defendants Mark R.T. Simpson, 195 Associates, Inc., and Rich
Valley Associates, hereby certify that I have served the
foregoing paper upon counsel and parties of record this date by
depositing true and correct copies of the same in the United
States mail, first-class postage prepaid, addressed as follows:
Craig A. Stone, Esquire
Mette, Evans & Woodside
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
ATTORNEYS FOR PLAINTIFF
Mr. Walter E. Rimmer
Rimmer Family Trust
6740 Harmony Grove Road
Dover, PA 17315
Mr. Kenneth A. Walker
3310 Market Street
Camp Hill, PA 17011
Mrs. Yvonne Eshleman
Estate of Frederick M. Eshleman
3 Blue Darther Lane
Skidaway Island
Savannah, GA 31411
Mr. Marlin L. Lehmer
602 York Circle
Mechanicsburg, PA 17055
Bruce D. Foreman, Esquire
4409 North Front Street
Harrisburg, PA 17110-1709
ATTORNEY FOR DEFENDANT MURPHY
Dated: March 11, 2004
KEEFER WOOD ALLEN & RAHAL, LLP
Charles W. Rubendall II
COMMERCIAL REALTY GROUP, INC., :
Plaintiff :
YVONNE ESHLEMAN, et al., :
Defendants :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-268 Civil
PRELIMINARY OBJECTIONS
OF DEFENDANTS SIMPSON, 195 ASSOCIATES,
AND RICH VALLEY ASSOCIATES TO PLAINTIFF'S COMPLAINT
NOW COME defendants Mark R.T. Simpson, 195 Associates, Inc.,
and Rich Valley Associates, through their counsel, Keefer Wood
Allen & Rahal, LLP, to assert the following preliminary
objections pursuant to Pa. R.
I.
1.
Group, Inc.
defendants,
Associates,
Civ. P. 1028(a) (3) and (a) (4):
Objection to Leqal Insufficiency (Demurrer)
On February 23, 2004, plaintiff Commercial Realty
("CRG" or ~plaintiff") filed a complaint against
including Mark R.T. Simpson (~Simpson"), 195
Inc. ("195"), and Rich Valley Associates (~RVA"),
which complaint was thereafter served on those defendants.
2. The complaint purports to assert a single cause of
action for recovery of a real estate broker's commission by CRG,
a commercial real estate brokerage firm.
3. As alleged in the complaint, CRG, as broker, acting
through its agent/salesperson, Kenneth A. Walker ("Walker," a
defendant herein),
(~CRG contract") on January 22,
owned "by [defendants] Lehmer,
RFT). ,,~
4.
contract,
entered into an exclusive listing contract
2002, to sell certain real estate
Eshleman and W. Rimmer (for
(Complaint, ¶¶ 13-15, and exhibit B).
Plaintiff avers that under the terms of the CRG
a broker's commission ~would be payable from the owners
of the property to CRG" (emphasis added) if CRG and Walker
procured a buyer for the property during the term of the CRG
contract, as extended by the parties. (Complaint, ¶¶ 14-15, 18;
and exhibits B and D).
5. Simpson, 195 and RVA were not ~owners of the property"
at the time CRG entered into the CRG contract, nor were they
parties to the CRG contract, nor does the CRG contract purport to
impose any liability for the broker's commission on a purchaser
of the property such as Simpson. (See exhibit B).
6. Apart from the CRG contract, under which the objecting
defendants have no obligation or liability in any event, there is
~ The complaint vaguely refers to ~Eshleman" as an owner of the subject
property, while naming Yvonne Eshleman as a defendant in both her individual
capacity and in her distinct fiduciary capacity as executor of the Estate of
Frederick M. Eshleman, deceased. (See complaint, ¶¶ 2-3). It is sufficient
to note that none of the defendants asserting these preliminary objections is
identified in the complaint as an ~owner" or as a party to the exclusive
listing contract that is the basis of the claim.
no
broker's commission.
7. Therefore,
sufficient cause of
recovery of
defendants.
legal or factual basis to impose liability on them for the
the complaint fails to state a legally
action against Simpson, 195 or RVA for
the plaintiff broker's commission from any of those
8. The complaint must,
Simpson, 195 and RVA; and plaintiff should be required to file
amended complaint deleting the names of those parties from the
caption.
WHEREFORE, defendants Mark R.T. Simpson, 195 Associates,
Inc., and Rich Valley Associates respectfully request that the
Court sustain their preliminary objection, dismiss the complaint
against them, and grant such other and further relief as the
Court deems just and proper.
II. Objection to Legal Insufficiency/ Lack of Specificity
as to Defendants 195 Associates, Inc. and Rich Valley
Associates.
therefore, be dismissed as against
an
9. The foregoing paragraphs through 8 are incorporated
here by reference as if fully restated.
10. Although the complaint purports to state a claim
against Simpson, which is legally insufficient and should be
dismissed for the reasons set forth above, plaintiff does not
even attempt to allege reasons why 195 and RVA are named in the
complaint.
11. Therefore, under Pa. R. Civ. P. 1028(a) (4), the
complaint fails to state a legally sufficient cause of action
against 195 or RVA for recovery of the plaintiff broker's
commission from either defendant.
12. For the same reasons, the complaint lacks sufficient
specificity to permit 195 and RVA to prepare a responsive
pleading, for which objection is made on the alternative basis of
Pa. R. Civ. P. 1028(a) (3).
13. The complaint must, therefore, be dismissed as against
195 and RVA; and plaintiff should be required to file an amended
complaint deleting the names of those parties from the caption
and the body of the complaint.
WHEREFORE, defendants 195 Associates, Inc.
Associates respectfully request that the Court
preliminary objection, dismiss the complaint
and Rich Valley
sustain their
against them, and
grant such other and further relief as the Court deems just and
proper.
Respectfully submitted,
KEEFER WOOD ALLEN & R3~HAL, LLP
Dated: March 15, 2004 By
Charles Wo Rubendall II
I.D. # 23172
Donald M. Lewis III
I.D. # 58510
210 Walnut Street
P. Oo Box 11963
Harrisburg, PA 17108-1963
717-255-8010 and 255-8038
Attorneys for defendants Mark
R.T. Simpson, 195 Associates,
Inc., and Rich Valley
Associates
CERTIFICATE OF SERVICK
I, Charles W. Rubendall II, Esquire, one of the attorneys
for defendants Mark R.T. Simpson, 195 Associates, Inc., and Rich
Valley Associates, hereby certify that I have served the
foregoing paper upon counsel and parties of record this date by
depositing true and correct copies of the same in the United
States mail, first-class postage prepaid, addressed as follows:
Craig A. Stone, Esquire
Metre, Evans & Woodside
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
ATTORNEYS FOR PLAINTIFF
Mr. Walter E. Rimmer
Rimmer Family Trust
6740 Harmony Grove Road
Dover, PA 17315
Mr. Kenneth A. Walker
3310 Market Street
Camp Hill, PA 17011
Mrs. Yvonne Eshleman
Estate of Frederick M.
3 Blue Darther Lane
skidaway Island
Savannah, GA 31411
Eshleman
Mr. Marlin L. Lehmer
602 York Circle
Mechanicsburg, PA 17055
Bruce D. Foreman, Esquire
4409 North Front Street
Harrisburg, PA 17110-1709
ATTORNEY FOR DEFENDANT MURPHY
KEEFER WOOD ALLEN & RAHAL,
Charles W. Rubendall II
LLP
Dated: March 15, 2004
Andrew C. Sheely, Esquire
127 S. Market Street
P.o. Box 95
Mechanicsburg, PA 17055
PA ID NO. 62469
717-697-7050 (Phone)
717-697-7065 (Fax)
COMMERCIAL REALTY GROUP, INC.,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
YVONNE ESHLEMAN, ESTATE OF :
FREDERICK M. ESHLEMAN, WALTER :
E. RIMMER, RIMMER FAMILY TRUST,:
MARLIN L. LEHMER, KENNETH A. :
WALKER, JOHN MURPHY, MARK R.T. :
SIMPSON, 195 ASSOCIATES, INC. :
RICH VALLEY ASSOCIATES :
Defendant(s) :
NO. 04-268 Civil
REGARDING REAL ESTATE
PREMISES SITUATED AT:
SOUTHEAST CORNER OF TEE
INTERSECTION OF INTERSTATE
ROUTE 81 AND PA ROUTE 114,
CUMBERLAND COUNTY TAX PARCEL
NO: 38-06-0011-012
TO:
COMMERCIAL REALTY GROUP, INC., Plaintiff, and
METTE, EVANS & WOODSIDE
Craig A. Stone, Esquire, Jeffrey A. Ernico, Esquire
P.O. Box 5950, 3401 North Front Street
Harrisburg, PA 17110-0950
DATE: March I~ , 2004
You are hereby notified to file a written response to
the enclosed Preliminary Objections within twenty (20) days
from service hereof or a judgment may be entered against you.
Andrew C. Sheely, Esquire
PA ID # 62469
Attorney for Defendants
Estate of Frederick M.
Eshleman and Yvonne Eshleman
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
717-697-7050
Andrew C. Sheely, Esquire
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
PA ID NO. 62469
717-697-7050 (Phone)
717-697-7065 (Fax)
COMMERCIAL REALTY GROUP, INC.,
Plaintiff
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER :
E. RIMMER, RIMMER FAMILY TRUST,:
MARLIN L. LEHMER, KENNETH A. :
WALKER, JOHN MURPHY, MARK R.T. :
SIMPSON, 195 ASSOCIATES, INC. :
RICH VALLEY ASSOCIATES :
Defendant(s) :
REGARDING RE~_L ESTATE
PREMISES SITUATED AT:
SOUTHEAST CORNER OF THE
INTERSECTION OF INTERSTATE
ROUTE 81 AND PA ROUTE 114,
CUMBERLAND COUNTY TAX PARCEL
NO: 38-06-0011-012
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
: NO. 04-268 Civil
PRELIMINARY OBJECTIONS OF DEFENDANTS ESTATE OF FREDERICK
M. ESHLEMAN, AND YVONNE ESHLEMAN
Defendants, Estate of Frederick M. Eshleman (hereinafter
referred to as "Eshleman Estate") and Yvonne Eshleman, now known
as Yvonne Eshleman Hoffman (hereinafter referred to "Eshleman"),
by and through counsel of Andrew C. Sheely, Esquire, hereby file
these Preliminary Objections pursuant to Pa. R.C.P. NO. 1028 (a)
to the Complaint filed by Plaintiff, and respectfully states as
follows:
1. On or about January 21, 2004, Defendants Estate and
Eshleman received written correspondence from Plaintiff's
counsel advising of Plaintiff's intent to file a Notice of a
lien as to certain real estate located in Silver Spring
Township, Cumberland County, Pennsylvania, as more particularly
described in a deed recorded in Deed Book "W", Volume 20, Page
110, as attached to Plaintiff's Notice of Commercial Real Estate
Broker Lien as Exhibit "A".
2. On or about January 21, 2004, Plaintiff filed a written
notice of Commercial Real Estate Broker Lien in the office of
the Prothonotary of Cumberland County naming, among others,
Yvonne Eshleman and Frederick A. M. Eshleman as owners of
certain real estate situated at the intersection of Interstate
Route 81 and PA Route 114, Cumberland County Tax Parcel No. 38-
06-0011-012.
3. On or about February 23, 2004, Plaintiff filed a
complaint in the nature of a claim for certain alleged real
estate commissions, interests, costs and attorney fees against
Defendants Estate, Eshleman and others.
4. Plaintiff's Complaint, specifically paragraph 13,
references and incorporates an "exclusive listing contract to
sell commercial real estate owned by Lehmer, Eshleman and W.
Rimmer (for R.F.T.)", attaching said listing contract as Exhibit
5. Paragraph 30, as identified on page 4 of the exclusive
listing agreement attached as Exhibit "B" to Plaintiff's
Complaint, contains an arbitration provision requiring that
disputes between Owner and Broker be submitted to Arbitration.
6. Exhibit "B" as attached to Plaintiff's Complaint is a
standard listing contract prepared by Plaintiff Commercial
Realty Group, Inc. or its agents.
7. Commercial real estate liens are actions in rem
constituting charges against the land or the real estate subject
to the alleged commercial lien for broker services.
8. On or about September 24, 2003, Defendant Eshleman
caused to filed an Exemplified Record docketed to 2003-00467,
Cumberland County Register of Wills, of the Probate Proceedings
filed in the County of Chatham, State of Georgia, naming Yvonne
M. Eshleman, as Executrix of the Estate of Frederick M.
Eshleman.
COUNT I. PRELIMINARY OBJECTION
AGREEMENT FOR ALTERNATIVE DISPUTE
RESOLUTION/ARBITRATION PURSUANT TO
Pa. R.C.P. NO. 1028 (a)(6)
9. Paragraphs 1 - 8 as set forth above are incorporated
herein by reference.
10. Plaintiff has failed to comply with the arbitration
provisions of its listing agreement prior to initiating the
above-captioned Notice of Commercial Real Estate Broker Lien and
the Complaint filed thereto.
11. Defendants Eshleman and Estate have provided written
notice of their request to pursue arbitration pursuant to the
Listing Agreement.
12. No Commercial Real Estate Broker Lien or Complaint
3
thereon can be filed where Owner and Broker have agreed to
arbitrate disputes between them pursuant to a written contract,
namely paragraph 30 as set forth in Exhibit "B" of Plaintiff's
complaint.
WHEREFORE, Defendants Estate and Eshleman respectfully
request that this Honorable Court dismiss the instant action,
strike the underlying Notice of Commercial Real Estate Broker
lien and direct the parties to pursue compulsory arbitration as
required by the contract prepared by Plaintiff, and award
counsel fees incurred by Defendants Estate and Eshleman in
defending this claim against Plaintiffs.
COUNT II. PRELIMINARY OBJECTION IN THE NATURE OF
DEMURRER FILED BY DEFENDANT ESHLEMAN
PURSUANT TO Pa.R.C.P. 1028(a)(4)
13. Paragraphs 1 - 12 are incorporated herein as if set
forth at length.
14. Plaintiff's complaint which seeks to obtain a
judgement on a lien against real estate is required to identify
as Defendants all legal owners of such real estate at the time
of the filing of a claim or the personal representative, heir or
devisee of a deceased owner, if known.
15. Plaintiff's Notice of Commercial Real Estate Broker
lien and Complaint fails to set forth a valid cause of action as
to Defendant Eshleman, individually.
16. Plaintiff's Notice of Lien and Complaint are void of
any allegation naming Defendant Yvonne Eshleman, individually,
as a record title owner of the real estate which is the subject
of Plaintiff's alleged lien and complaint thereon.
17. Defendant Yvonne Eshleman, individually, is not an
interested party in this proceeding where Plaintiff has failed
to allege that Defendant Yvonne Eshleman is an owner of the real
estate to which the alleged claim for lien is attached or
affixed.
WHEREFORE, Defendant Eshleman respectfully request that
this Honorable Court dismiss the instant action as it pertains
to Defendant Yvonne Eshleman, individually, and require that
Plaintiff file an amended pleading properly naming the Estate of
Frederick M. Eshleman as a Defendant, and amending the caption
to remove Yvonne Eshleman as an individual Defendant.
COUNT III. PRELIMINARY OBJECTION IN THE
LACK OF JURISDICTION FILED BY DEFENDANT
PURSUANT TO Pa.R.C.P. 1028(a)(1)
NATURE OF
ESHLEMAN
18. Paragraphs 1 through and including 17 are incorporated
herein by reference.
19. Yvonne Eshleman is a resident of the State of Georgia
as referenced in paragraph 2 of Plaintiff's complaint.
20. Plaintiff's complaint is void of any allegation
indicating that Yvonne Eshleman, individually, owns the real
estate which is subject to the alleged claim or lien filed by
Plaintiffs.
21. The Court of Common Pleas does not have jurisdiction
5
which setting forth separate counts for claims for special
damages are prejudicial to Defendant Eshleman and Defendant
Estate's ability to properly defend and answer the allegations
set forth in the Complaint in light of the multitude of
Defendants.
WHEREFORE, Defendants Eshleman and Estate respectfully
requests that this Honorable Court direct Plaintiff to file an
amended pleading to set forth separate causes of action and
special damage claims, or in the alternative, dismiss this
action with prejudice.
Date: March~, 2004
Respectfully submitted,
Andrew C. Sheely, Esquire
PA ID # 62469
Attorney for Defendants
Yvonne Eshleman,
Individually, and Estate of
Frederick M. Eshleman
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
717-697-7050
717-697-7065 (fax)
7
Objections are %rum and correct. I understand %ha= ua~wor~
C.a.A. Sec~iom 4904, relaein~ %0 uns~n~rn fmlslficmtion to
CERTIFICATE OF SERVICE
I, Andrew C. Sheely, Esquire, hereby certify that I am this
day serving the foregoing Preliminary Objections to Plaintiff's
Complaint upon the following named individual this day by
depositing same in the United States Mail, First Class, postage
prepaid, at Mechanicsburg, Pennsylvania, addressed as follows:
Craig A. Stone, Esquire
Jeffrey A. Ernico, Esquire
METTE, EVANS & WOODSIDE
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
Date: March/~, 2004
COMMERCIAL REALTY GROUP, :
iNC., :
Claimant :
VS.
YVONNE ESHELMAN, WALTER
RIMMER, ESTATE OF FREDERICK
M. ESHELMAN, RIMMER FAMILY :
TRUST, MARLiN L. LEHMER :
KENNETH A. WALKER, JOHN :
MURPHY, MARK R.T. SIMPSON, :
195 ASSOCIATES, iNC., and RICH :
VALLEY ASSOCIATES :
Owners :
:
REGARDiNG REAL ESTATE:
pREMISES SITUATED AT :
SOUTHEAST CORNER OF :
THE INTERSECTION OF :
INTERSTATE ROUTE 81 & :
PA ROUTE 114, :
CUMBERLAND cOUNTY :
TAX PARCEL NO: :
38-06-0011-012 :
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO: 04-268 CIVIL
PRELIMINARY OBJECTIONS OF DEFENDANTS
MARLIN L. LEHMER AND WALTER RIMMER TO PLAINTIPF'S COMPLAINT
TO THE HONORABLE JUDGES OF SAID COURT:
AND NOW, this 12th day of March, 2004, come Defendants Marlin L. Lehmer and Walter
Rimmer, by their attorney, Daniel Stem, to file these Preliminary Objections in the above-captioned
matter, for the reasons hereinafter set forth:
I. pRELIMiNARY OBJECTION PURUSANT TO RULE 1028(a)(6) - AGREEMENT FOR
ALTERNATIVE DISPUTE RESOLUTION
1. Plaintiff's Complaint is based upon its claim for a broker's commission arising out of
a listing contract attached as Exhibit "B" to the Complaint.
2. The listing contract in Paragraph 30 expressly provides as follows:
ARBITRATION OF DISPUTES
Broker and Owner agree to arbitrate any dispute between them that cannot be
amicably resolved. After written demand for arbitration by either Broker or Owner,
each party shall select a competent and disinterested arbitrator. The two so selected
shall select a third. If selection of the third arbitrator cannot be agreed upon within
thirty days, either party may request that selection be made by a judge of a court of
record in the county in which arbitration is pending. Each party will pay its chosen
arbitrator, and bear equally the expenses for the third and all other expenses of
arbitration. Arbitration will be conducted in accordance with the provisions of
pennsylvania Common Law Arbitration 42 Pa.C.S.A. §7341 et. seq.
2. Plaintiff is bound by the above quoted provision, and is foreclosed from (i) filing a
lien under the Commercial Real Estate Broker Lien Act; and/or (ii) filing and litigating a Complaint
with this Court, thereby bypassing the mandatory arbitration provision, which Defendants hereby
invoke.
WHEREFORE, Defendants Lehmer and Rimmer demand that Plaintiff s Complaint be
dismissed with prejudice, and that they be awarded reasonable counsel fees and costs, and that the
matter be referred to arbitration in accordance with the above cited provision.
II. IMPROPER SERVICE AND NON-JOINDER OF A NECESSARY PARTY (Rule
1028(a)(1)&(5)
3. Plaintiff's Complaint names as a Defendant there~n the Rimmer Famdy Trust. In
paragraph 5, it states that the trust is, "c/o Walter E. Rimmer, 6740 Harmony Grove Road, PA 17315.
4. Defendant Walter E. Rimmer is not now nor has he ever been a trustee of said trust.
The Trustee is BB&T Trust Division, 50 Aviemore Drive, P.O. Drawer, Pine Hurst, North Carolina
28370.
5. The Trustee is the representative of the trust as part owner of the subject property and
is a necessary party, who Plaintiff has failed to properly join and/or serve with the notice of lien, the
lien itself, or the Complaint.
WHEREFORE, Defendants demand that Plaintiffs Complaint be dismissed for improper
service and failure to join a necessary party.
Respectfully submitted,
Daniel Stem, Esquire
2650 North Third Street
Harrisburg, PA 17110
(717) 234-4531
Supreme Court ID#25989
Attorney for Defendants Marlin L. Lehmer and
Walter Rimmer
VERIFICATION
I verify that t,ho, statements made in the foregoing Preliminary
Objections are true and eon'oct to the best of my knowledge, infornaation and
belief. I understand that false statement~, herein are made subject to the
penalties of 18 Pa.C.S. Section 4904 relating to u~sworn falsification to
authorities,
Date:
~VERIFI~CAT_ION-
I verify that the statements made in the foregoing p~eliminary
Objections are true and correct to the best of my knowledge, information a~d
belief~ I understand thst false statements herein are made subject to the
penalties of 18 paC.S. Section 4904 relating to unsworn falsification to
authorities.
Da,te:~
COMMERCIAL REALTY GROUP, :
1NC., :
Claimant :
VS.
YVONNE ESHELMAN, WALTER :
RIMMER, FREDERICK A.M. :
ESHELMAN, DONALD C. RIMMER :
RIMMER FAMILY TRUST, MARLIN
L. LEHMER
IN THE COURT OF COMMON PLEAS
CUMBERLAND cOUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO: 04-268 CIVIL
Owners
REGARDING REAL ESTATE:
pREMISES SITUATED AT :
SOUTHEAST CORNER OF :
THE INTERSECTION OF :
INTERSTATE ROUTE 81 & :
PA ROUTE 114, :
CUMBERLAND COUNTY :
TAX PARCEL NO: :
38-06-0011-012 :
CERTIFICATE OF SERVICE
I, Jamie M. Berger, do hereby certify that on tiffs date I served a copy of the foregoing,
Answer/New Matter/Counterclaim was served upon the following via first class mail, postage prepaid:
Jeffrey A. Emico, Esquire
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
Bruce Foreman, Esquire
4409 North Front Street
Harrisburg, PA 17110
Andrew Sheeley, Esquire
127 South Market Street
Mechanicsburg, PA 17055
Charles W. Rubendall, II, Esquire
210 Waiffut Street
P.O. Box 11963
Harrisburg, PA 17108-1963
Kenneth A. Walker
c/o Detweiler Realty
3310 Market Street
Camp Hill, PA 17011
Jamie M. Berger
Paralegal for Daniel Stem, Esquire
COMMERCIAL REALTY GROUP, INC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER
E. RIMMER, RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. AND
RICH VALLEY ASSOCIATES,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. o4-a68 Civil
CIVIL ACTION - ]LAW
NOTICE TO PLEAD
To:
COMMERCIAL REALTY GROUP, INC.
C/o Craig A. Stone, Esquire
Jeffrey A. Ernico, Esquire
34m North Front Street
Harrisburg, PA ~7~1o-o95o
You are hereby notified to plead to the enclosed New Matter and Counterclaim within
twenty (2o) days from service hereof or a default judgment may be entered against you.
Respectfully submitted,
BRIJCE D. FOI~:~,N, I~RE
4409 North Front Street
Harrisburg, PA W~o
(7~7) 236-9391
ID ~21193
ARorneys for Defendant John Murphy
COMMERCIAL REALTY GROUP, INC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER
E. RIMMER, RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. AND
RICH VALLEY ASSOCIATES,
Defendants
) IN THE COURT OF COMMON PLEAS
) CUMBERLAND COUNTY, PENNSYLVANIA
)
) No. o4-268 Civil
'AVIL ACTION - LAW
ANSWER, NEW MA'ITER AND COUNTERCLAIM OF DEFENDANT JOHN
MURPHY TO PLAINTIFF'S COMPI_AINT
AND NOW, comes the Defendant, John Murphy, ("Murphy") by and through his
attorneys, Foreman & Foreman, PC, and in response to Plaintiff's Complaint, responds as
follows:
1-7. Admitted on information received.
8. Admitted.
9-1x. Admitted on information received.
m. After reasonable investigation, Defendant Murphy lacks information sufficient to
determine the truth or falsity of paragraph m of Plaintiffs Complaint and, accordingly, the same
is denied and, if relevant, strict proof thereof is demanded at tri~d. By way of further response,
the document attached to Plaintiff's Complaint as Exhibit "A" speaks for itself.
x3. After reasonable investigation, Defendant Murphy lacks information sufficient to
determine the truth or falsity of paragraph 13 of Plaintiffs Complaint and, accordingly, the same
is denied and, if relevant, strict proof thereof is demanded at tri~fl. By way of further response,
the document attached to Plaintiff's Complaint as Exhibit "A" speaks for itself.
~4. To the extent that Paragraph ~4 of Plaintiff's Cornplaint is not a legal conclusion
and requires response, after reasonable investigation, Defendant Murphy lacks information
sufficient to determine the truth or falsity of paragraph ~4 of Plaintiffs Complaint and,
accordingly, the same is denied and, if relevant, strict proof thereof is demanded at trial.
~5. To the extent that Paragraph 15 of Plaintiffs Complaint is not a legal conclusion
and requires response, after reasonable investigation, Defendant Murphy lacks information
sufficient to determine the truth or falsity of paragraph ~5 of Plaintiffs Complaint and,
accordingly, the same is denied and, if relevant, strict proof thereof is demanded at trial. In
further response to paragraph ~5 of Plaintiffs Complaint, the contract referred to therein speaks
for itselfi
~6. After reasonable investigation, Defendant Murphy lacks information sufficient to
determine the truth or falsity of paragraph 16 of Plaintiffs Complaint and, accordingly, the same
is denied and, if relevant, strict proof thereof is demanded at trial.
~7. After reasonable investigation, Defendant Murphy lacks information sufficient to
determine the truth or falsity of paragraph ~7 of Plaintiffs Complaint and, accordingly, the same
is denied and, if relevant, strict proof thereof is demanded at trial.
~8. To the extent that Paragraph ~8 of Plaintiffs Complaint is not a legal conclusion
and requires response, after reasonable investigation, Defendant Murphy lacks information
sufficient to determine the truth or falsity of paragraph ~8 of Plaintiffs Complaint and,
accordingly, the same is denied and, if relevant, strict proof thereof is demanded at trial. By way
of further response to paragraph x8 of Plaintiffs Complaint, Exhibit "B" therein speaks for itself
and it is noted that the document does not contain the signatures of all the parties apparently
necessary for a binding contract being all individual owners of the land.
~9. To the extent that Paragraph x9 of Plaintiffs Complaint is not a legal conclusion
and requires response, it is denied as stated; it is admitted that Defendant Murphy entered into
an Agreement of Sale with the owners of the subject property however, it is denied that the same
was done as an agent for Defendant, Mark R. T. Simpson, or any' other party and, to the
contrary, it is asserted that Defendant Murphy acted for himsel£. Strict proof of the allegation of
agency in paragraph ~9 of Plaintiff's Complaint is demanded at trial.
20. To the extent that Paragraph 2o of Plaintiffs Complaint is not a legal conclusion
and requires response, the same is denied; it is specifically denied that, in entering into the said
contract, Defendant Murphy acted as the agent or in the interest: of Defendant Simpson or any
person procured during the term of the listing contract in any way by any person claiming under
Plaintiff and further, it is contested that there was a legally binding 365 day extension of any
extension contract.
WHEREFORE, Defendant Murphy respectfully request that Plaintiffs Complaint be
dismissed.
NEW MATrER
ex. Defendant Murphy's answers to paragraphs ~ through 20 inclusive of Plaintiffs
Complaint are incorporated herein as fully as if set forth.
22. At all times relevant hereto and on entering into a contract to purchase the
subject property and in procuring the same, Defendant Murphy acted for himself and not as an
agent or as an interest of any other party.
23. At no time did Defendant Murphy or any person acting on his behalf or as his
agent or representative, deal with Plaintiff or any broker or agent associated with Plaintiff.
24. At the time that Defendant Murphy became interested in, inspected, considered
purchasing or entered into a contract for the same with regard to the subject property, to the
best of Defendant Murphy's knowledge, was the same listed with Plaintiff or any other broker or
real estate agent associated with Plaintiff.
25.
Plaintiff.
Defendant Murphy, at no time, had any privity or contractual relationship with
26. No contractual provision requires Defendant Murphy to make any payment to
Plaintiff for any commission on any sale of subject property or any other property.
27. On or about October 29, aoo2, Defendant Murphy and Defendants Yvonne
Eshleman, individually and as Executor of the Estate of Frederic, k M. Eshleman, Defendant
Marlin L. Rimmer and Alice Rimmer, and Defendant Rimmer Family Trust, entered into a
written agreement for the sale of land whereby, Defendant Murphy, in his own right, agreed to
purchase and the Sellers agreed to sell approximately 6~.3 acres of land to Defendant Murphy
for the total purchase price of $~,88o,ooo.oo. A true and correct copy of the said Agreement is
attached hereto, marked Exhibit "A" and made a part hereof.
98. Prior to entering into the said Agreement for Sale on or abut October 29, 2oo2,
Defendant Murphy was assured by Defendant Kenneth A. Walker, individually and as agent for
the seller under the said contract, that no commission was due to any party, realtor, agent or
broker except as arose from the October 29, 2002 contract.
29. Having no basis so to do, on or about January 21, 2004, Plaintiff filed to No. 04-
268 in the Office of the Prothonotary of the Cumberland County Court of Common Pleas, a
Notice of Commercial Real Estate Broker Lien against Defendants Yvonne Eshleman, Walter E.
Rimmer, Frederick M. Eshleman, Donald C. Rimmer, Rimmer Family Trust and Marlin L.
Lehmer, placing a lien on the subject property and effectively making it impossible to transfer
good title without payment or escrow of Plaintiffs claim in the amount of $~o8,ooo.oo.
30. Prior to the filing of such lien, Defendant Murphy is advised that a written notice
of intent to file was given to various parties but no such notice wets given to Defendant Murphy.
3~. The filing of the lien interfered with the contractual relationship between
Defendant Murphy and the owners of the subject property and has made it impossible for
Defendant Murphy to close on his agreement and obtain title to the subject property or to obtain
financing for the same.
WHEREFORE, Defendant Murphy respectfully request that Plaintiff's Complaint be
dismissed.
COUNTERCLAIM
32. Defendant Murphy's answers to paragraphs ~ through 3~ inclusive of Plaintiff's
Complaint are incorporated herein as fully as if set forth.
33. Defendant Murphy claims damages for intentional interference with contractual
relationship against Plaintiff in the amount of $~o8,ooo.oo.
WHEREFORE, Defendant Murphy respectfully request judgment be entered in favor of
Defendant and against Plaintiff in the amount of $xo8,ooo.oo together with court costs, legal
fees and interest.
By
Respectfully submit ted.,,_~
I~RUCE D."~OR~EIVIA~q~ ES Q UI RE
4409 North Front Street
Harrisburg, PA x7~:to
(7~7) e36-939~
ID #m~93
Attorneys for Defendant John Murphy
COMMERCIAL REALTY GROUP, INC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER
E. RIMMER, RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. AND
RICH VALLEY ASSOCIATES,
Defendants
) IN THE COURT OF COMMON PLEAS
) CUMBERLAND COUN'I~, PENNSYLVANIA
)
) No. 04-268 Civil
)
) CIVIL ACTION - LAW
)
)
)
)
)
)
)
)
VERIFICATION
I verify that the statements made in foregoing Answer, New Matter and Counterclaim are
true and correct to the best of my knowledge. I understand that false statements herein are
made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to
authorities.
rotc: t l.---- , 2004
PHY t/ f/
John DeLorenzo, Esquire
Attorney 1. D. No. 72190
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268 Attorneys for Defendant, Kenneth Walker
Telephone: (7! 7) 234-4161
COMMERCIAL REALTY GROUP, INC.
Plaintiff,
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHELMAN, WALTER E.
RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. and
RICH VALLEY ASSOCIATES
Defendants.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-268-Civil
JURY TRIAL DEMANDED
PRAECIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please enter the appearance of John DeLorenzo, Esquire, of Goldberg, Katzman and
Shipman, P.C., for Defendant, Kenneth A. Walker in the above-captioned action.
By
GOLDBERG, KATZMAN & SHIPMAN, P.C.
J~ DeLC6~orenzo, Es, qm'il4e-
~or~ey I.D. No. 7,!190
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 25t4-4161
Attorneys for Defendant, Kenneth A. Walker
COMMERCIAL REALTY GROUP, INC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHELMAN, WALTER E.
RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES,/NC. and
RICH VALLEY ASSOCIATES
Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-268-Civil
CERTIFICATE OF SERVICE
I, John DeLorenzo, hereby certify that on this
-- ,2004, I served the
foregoing documents, via U. S. Mail, postage prepaid, on the person set forth below, namely:
Yvonne Eshelman
3 Blue Darther Lane
Skidway Island
Savannah, GA 31411
Waiter E. Rimmer
6740 Harmony Grove Road
Dover, PA 17315
Marlin L. Lehmer
602 York Circle
Mechanicsburg, PA 17055
Mark R. T. Simpson
3609 Gettysburg Road
Camp Hill, PA 17011
195 Associates, LLC
3609 Gettysburg Road
Camp Hill, PA 17011
Frederick M. Eshelman
3 Blue Darther Lane
Skidway Island
Savannah, GA 31411
Rimmer Family Trust
c/o Walter E. Rimmer
P.O. Box 281
Dillsburg, PA 17019
John Murphy
ALPHA Consulting Engineers, Inc.
145 Limekiln Road, Suite 600
New Cumberland, PA, 17070
Craig A. Stone, Esq.
Mette, Evans & Woodside
3401 N. Front Street
Harrisburg, PA 17110
Rich Valley Associates
3609 Gettysburg Road
Camp Hill, PA 17011
GOLDBERG, KA'YJ~MAN & SHIPMAN, P.C.
By:
ot~l~Lorenzo, Esquire
107567.1
COMMERCIAL REALTY GROUP, 1NC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER
E. RIMMER, RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. AND
RICH VALLEY ASSOCIATES,
Defendants
) IN THE COURT OF COMMON PLEAS
) CUMBERLAND COUNTY, PENNSYLVANIA
)
) No. 04-268 Civil
)
) CIVIL ACTION - LAW
)
)
)
)
)
)
)
)
CERTIFICATE OF SERVICE
I, Brace D. Foreman, Esquire, do hereby certify that on 12th day of March, 2004, I served
a tree and correct copy of Defendant John Murphy's Answer, New Matter and Counterclaim to
Plaintiff's Complaint, with attached Notice to Plead, by sending the same by First Class U.S.
mail, postage prepaid, addressed as follows:
Craig A. Stone, Esquire
Jeffrey A. Emico, Esquire
Mette, Evans & Woodside
3401 North Front Street
PO Box 5950
Harrisburg, PA 17110-0950
Daniel Stem, Esquire
2650 North Third Street
Harrisburg, PA 17110
Andrew C. Sheely, Esquire
127 South Market Street
Mechanicsburg, PA 17055
Charles W. Rubendall, II, Esquire
210 Walnut Street
Harrisburg, PA 17101
Jerry R. Duffle, Esquire
301 Market Street
Lemoyne, PA 17043
By:
Respectfully submitted,
Bdce D.~or~f/a~x, Esquir
Atty. ID ~21193
4409 No~ Front S~eet
H~isb~g, PA 17110-1709
(717) 236-9391
Co~sel for Jo~ Mushy
COMMERCIAL REALTY GROUP, INC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER
E. RIMMER, RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. AND
RICH VALLEY ASSOCIATES,
Defendants
) IN THE COURT OF COMMON PLEAS
) CUMBERLAND COUNTY, PENNSYLVANIA
)
) No. 04-268 Civil
)
) CIVIL ACTION - I~-W
)
)
)
)
)
)
)
)
CERTIFICATE OF SERVICF
I, Bruce D. Foreman, Esquire, do hereby certify that on 24th day of March, 2004, I
served a true and correct copy of Defendant John Murphy's Answer, New Matter and
Counterclaim to Plaintiffs Complaint, with attached Notice to Plead, by sending the same by
First Class U.S. mail, certified, return receipt requested, postage prepaid, addressed as follows:
Estate of Frederick M. Eshleman.
C/o Mrs. Yvonne Eshleman
3 Blue Darther Lane
Skidaway Island, Savannah, GA 31411
Waiter E. Rimmer
6740 Harmony Grove Road
Dover, PA 17315
Rimmer Family Trust
C/o Walter E. Rimmer
6740 Harmony Grove Road
Dover, PA 17315
Kenneth A. Walker
331o Market Street
Camp Hill, PA 17011
By:
Respectfully sub/fi~l~ted,
AB~c~ ~. ~orlh/nah,~Esquire · ID ~m~93
44o9 No~h Front Street
Harrisburg, PA ~7~o-~7o9
(7~7) 236-9391
Counsel for John Murphy
· Com~e items 1, 2, and $. Also complete
item 4 if Restricted Delivery is desired.
· Print your name and address on the mveme
so that we can return the card to you.
· Attach this card to the back of the mailpiece,
or on the front if space permits.
1. Article Addressed to:
Kenneth A. Walker
]310 Market Street
~amp Hill, PA 17011
D. is de~ive~ address different from Item
If YES, enter dellveP/address below:
[] NO
3. ice TyI:~
~Ce~ified Mail [] Express Mail
~-I Registered [] Return Receipt for Merchandise
[] Insured Mall I-1 C.O.D.
4. Restricted DeNvery? (Extra F~e) [] Yes
2. Article Number
Crr~s~rf~om~r~oe/~b~) 7002 2030 0001 3410 22,63
PS Form 3811, Aught 2001 Dofllestic Return Receipt 102595-02-M-1540
(Endorsement Required)
· Complete items 1, 2, and 3. A~SO complete
item 4 if Restricted Delivery is desired.
· Print your name and address on the reverse
so that we can return the card to you.
· Attach this card to the back of the mailpiece,
or on the front if space permits.
1. Article Addressed to:
Ri.~er Family Trust
c/o W~lter E. Ricmer
6740 Harmony Grove Road
DOVer, PA 17315
2. A~icle Number
C. Date of Delivery
D. ~s delivery address different fn3m item 1 ? r'l Yes
~f YES, enter delivery address below: r"l No
3. ice Type
1 ~ ~/~O~Oertifiad Mail O Exp~e~ M.il
//'---~ Registered [] ~eturn Recei~ for Merchandise
~.. [] Insured Mail [] ~.O.O.
PS Form 3811, August 2001
7002 2030 0001 3410 2856
Domeatic Return Receipt 1025~5-02-M-1540
Postage
Certified Fee
Return Reclept Fee
(Endorsement Requ[~ed)
~ Restricted Delivery Fee
I'lq (Endorsement Required)
Total Postage & Fees
Z.36
item 4 if Restricted Delivery is desired.
· Print your name and address on the reverse
so that we can return the card to you.
· Attach this card to the back of the mailpisoe,
or on the front if space permits.
1. Article Addressed to:
Walter E. Richer
6740 Harmony Grove Road
Dover, PA 17315
[] Agent
[] Addressee
B. Received Name) Date of Delivery
D. ~s delivery address diffem~ from item 1 ? [] Yes
If YES, enter delivery address below: [] No
PS Form 3811, August 2001
~ Express Mail
[] Return Receipt for Merchandise
[] Insured Mall [] C.O.D.
4. Restricted Delivery? (Extra Fee) [] Yes
7002 2030 0001 3410 2887
· Complete items 1, 2, and 3. A/co compete
item 4 If Restricted Dellve~ is desired.
· Print your name and address on the reveme
so that we can return the card to you.
· Attach this card to the back of the mailpiece,
or on the front if space pecmits.
1. Article Addressed to:
Estate of Frederick~Eshelman
c/o Yvonne Eshelman
3 ~lue Dather Lane
Skidaway Island
Sa~G~ 31411
2. Article Number
(Transfer from service label)
tern1? OYes
address below: [] No
[] E~press Mail
Registered [] Return Receipt for Merchandise
[] insured Mail [] C,O.D.
4. Restricted Dellve~? (Extra Fee) [] Yes
7002 2030 0001 3410 2!870
PS Form 3811, August 2001 Domestic Return Receipt 10259¢~O2-M.1540
COMMERCIAL REALTY GROUP, INC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER E.
RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. and
RICH VALLEY ASSOCIATES
Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-268-Civil
NOTICE TO PLEAD
TO:
Thomas J. Mallios
c/o Jeffrey A. Ernico, Esquire
Metre, Evans & Woodside
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
You are hereby notified to file a written response to the enclosed "Preliminary
Objections" by Defendant, Kenneth A. Walker to the Plaintiff's Complaint within twenty (20)
days from service hereof or a judgment may be entered against you.
GOLDBERG, KATZ~tlAN & SHIPMAN, P.C.
~bh~/l~L6~enzo, Esquire
DATE: April 14, 2004
GOLDBERG, KATZMAN & SHIPMAN, P.C.
John DeLorenzo, Esq. (I.D. #72190)
320 Market Steer
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Counsel for Defendant. Kenneth A. Walker
COMMERCIAL REALTY GROUP, INC.
Plaintiff
vs.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER E.
RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. and
RICH VALLEY ASSOCIATES
Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-268-Civil
Jury Trial Demanded
PRELIMINARY OBJECTIONS OF DEFENDANT,
KENNETH A. WALKER
TO PLAINTIFF'S COMPLAINT
AND NOW, comes Kenneth A. Walker ("Defendant Walker"), one of the named
Defendants in this matter, by and through his counsel, John DeLorenzo, Esq., and Goldberg,
Katzman & Shipman, P.C., who file the following Preliminary Objections, pursuant to Pa.R.C.P.
1028, to the Plaintiff's Complaint dated February 23, 2004 (the "Complaint"), as follows:
I. Objections as to Jurisdiction Pursuant to Pa.R.C.P. 1028(a)(1).
1. This Court does not have jurisdiction over this matter as Plaintiff has contractually
agreed to arbitration as the means to settle all disputes between the parties.
2. Paragraph 30 of the Listing Agreement which is attached to the Complaint as
Exhibit "B" specifically states that Plaintiff has agreed to "Arbitration of Disputes" as the sole
means to resolve disputes.
3. Accordingly, regardless of provisions of the Commercial Real Estate Broker Lien
Act, the parties have contractually obligated themselves to arbitration as the sole means to settle
this dispute.
4.
Complaint must be dismissed.
Therefore, this Honorable Court lacks jurisdiction to handle this matter and the
WHEREFORE, the Complaint should be stricken by this Court in its entirety for lack of
jurisdiction.
II.
Obiections as to Legal Insufficiency of a Pleading (Demurrer) Pursuant to
Pa.R.C.P. 1028(a)(4) as to the extension of the Listing Agreement.
forth herein.
6.
7.
Defendant Walker includes paragraphs 1 through 4 by reference as if fully set
Complaint is entirely without merit as it is legally insufficient.
Plaintifff s Complaint is predicated on his incorrect and meritless claim that there
exists a valid extension of the Listing Agreement.
8. As the Listing Agreement attached as Exhibit "B" to the Complaint indicates in
Paragraph 2, such agreement expired on or about July 21, 2002.
9. As evident on attached Listing Agreement, Defendants Lehmer, Eshleman and
Rimmer signed such document binding each party respectively.
10. Plaintiff has incorrectly alleged that such agreement was extended. See Paragraph
18 of the Complaint.
11. Plaintiff has attached as a basis of this extension, Exhibit "D" of the Complaint
entitled "Endorsement/Extension to Exclusive Right to Sell Agreement".
12. As evidenced on Plaintiff s Exhibit "D", a necessary party, Defendant Rimmer,
failed to sign such document and therefore the extension is invalid.
13. By the terms of the very document which indicates the owners of the property on
the extension as "Owners: Marlin L. & Alice F Lehmer, Yvonne Eshleman, Rimmer Family
Trust", the Plaintiff had full knowledge that the extension failed to be executed by a necessary
party.
14. Also, has alleged in the Complaint in paragraph 13, the Plaintiff acknowledges
that the real estate is owned by "Lehmer, Eshleman and W. Rimmer (for RFT)".
15. The Plaintiff has failed to allege how such defect in the extension somehow binds
the parties.
16. Under Pennsylvania law, a modification or extension of the contract would
require all parties thereto to agree and execute such extension. Matevish v. Ramse¥ Borough
School District, 74 A.2d 797 (Pa. Super. 1950).
17. The subsequent Agreement of Sale with Defendant Murphy was executed on or
about October 29, 2002 as indicated in pertinent part in the Agreement for the Sale of Vacant
Land attached hereto as Exhibit "A".
18. Such date is beyond to period which the Plaintiff would be entitled to receive any
commission under the Listing Agreement attached as Exhibit "B" to the Complaint.
19. Accordingly, by the very averments in the Complaint and the documents thereto
attached which the Plaintiff predicates his claim, the Plaintiff's claim is legally insufficient and a
demur must be granted in favor of the Defendants.
WHEREFORE, the Complaint should be stricken by this Court in its entirety for legal
insufficiency pursuant to Pa.R.C.P. 1028(a)(4).
III.
Objection Based on Insufficient Specificity in a Pleading (pursuant to
Pa.R.C.P. 1028(a)(3)
20.
fo~h herein.
21.
Defendant Walker includes paragraphs 1 through 19 by reference as if fully set
As indicated in Defendant's Exhibit "A"attached hereto, the Buyer of the subject
property is Defendant Murphy individually.
22. Defendant Murphy individually as a buyer of the property is not a person or an
entity that would trigger commission for the Plaintiff.
23. Plaintiffhas generally averred in Paragraphs 19 and 20 of the Complaint that
Murphy acted as agent for Defendant Simpson or his interests which causes commission to be
payable to Plaintiff.
24. Plaintiffhas failed to indicate specific facts, as required under Pennsylvania
pleading practice rules, to state a claim under this agency theory.
4
25. Plaintiff has failed to plead the basis for this agency relationship as the Agreement
for Sale (Exhibit "A") clearly indicates that the sole buyer of the property is Defendant Murphy
not Defendant Simpson.
WHEREFORE, the Complaint should be stricken by this Court in its entirety for
insufficient specificity in a Pleading (pursuant to Pa.R.C.P. 1028(a)(3).
IV.
26.
forth herein.
Objections as to Legal Insufficiency of a Pleading (Demurrer) Pursuant to
Pa.R.C.P. 1028(a)(4) as to sale to Defendant Murphy.
Defendant Walker includes paragraphs 1 through 25 by reference as if fully set
27. As indicated above, Plaintiff has failed to state a claim with regard to the buyer,
Defendant Murphy.
28. As indicated in Exhibit "A" hereto, the sole buyer of the property is Defendant
Murphy and not Defendant Mark Simpson or any interest of Mark Simpson.
29. Accordingly, the Pleading is legally insufficient.
WHEREFORE, the Complaint should be stricken by this Court in its entirety for legal
insufficiency pursuant to Pa.R.C.P. 1028(a)(4).
5
Date: April 14, 2004
108794.1
Respectfully submitted,
GOL~TZMAN
~. i~;~z~,~squ~re
& SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorneys for Defendant Walker
6
EXHIBIT "A"
· AGREEMENT FOR THE SALE OF VACANT LAND
PA' LICENSED B.~OKER//_/_ - -~
LISTING I~ROKEI~(Cumoa~g~) ~
~ ~lf ~ ~ f
Pn~ ~AX ~
A~S-VL
PA LICENSED BROKER
~LLING BROY~ER ( C. llm p aa..~ )j~v'Pr~~/~'~'~q
[ D~SIGNAT~D AGENT FOR SELLER (ff applicable}
PROPERTY (1-98) Sefler hereby agrees to sell and convey lo Buyer, who hereby agrees to pu, cl,.~; .
(B)
(C)
(D)
(~)
which ~-III -be ~ald to Seller by Buyer as fMIov~:
(~)
(G)
28
32
33 34
34 4, FIXTURES AND PERSONAL PROPERTY (1 '00) · · ' ' 35
36 /'(/*"';"<'"- 3~
51 52
52 53
53 54
54 55
55 56
56 57
57 58
59 60
60 51
61 62
62 63
63 /~ 64
6O
ii, b.~.TiLgvTIM~I$OFTHEE~SENCE(~-01) , · . .
g? (C) 1. - ..... ntd~ ~)~P~"' ifaw~ncommiu~entisnotre~iv,dbySellerbytheabovedate. "
8. INSPECTIONS (1-98) ·
(C) Buyer reserves the right Io make a Pre-settlem~m inspecti°n °f the Pr°perry' Buyer's fight t° make ~his inslpecti°n is n°t waiv~ ~ ~y °t~r
(C) ~ Buyex is awa~e that ttl~m is no devdope~ waist source for the Plrop~rty. ' Ig:~/'//'~ ~
.......... ' 294
......... ' ' 305
348 (D) ~ Scfl~no~o~gco~~ps~mifle~ ...... pt~l,~atdo.ot~nsfcrwi~cPrope~unl~oth ..... 34,
4sa /dr// ment will not be almred, amended, changed, ormodifledex~ptln'*fifingexe~u~y~.' t'/ .~. ,~./.~ 453
496 Buy~' Nan~ (prat), ~$ #.
5D5 505
524 524
542 542
543 Ma
544 544
545 545
546 546
547 547
546 548
549 546
550 550
COMMERCIAL REALTY GROUP, INC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER E.
RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. and
RICH VALLEY ASSOCIATES
Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-268-Civil
CERTIFICATE OF SERVICE
I, John DeLorenzo, hereby certify that on this t~( day of j~l , 2004, I served the
foregoing documents, via U. S. Mail, postage prepaid, on the persons set forth below, namely:
Charles W. Dubendall, Esq.
Keefer Wood Allen & Rahal, LLP
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108-1963
Jeffrey A. Emico, Esq.
Mette, Evans & Woodside
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
Brace D. Foreman, Esq.
Foreman & Foreman, P.C.
4409 North Front Street
Harrisburg, PA 17110-1709
Daniel Stem, Esq.
Attorney at Law
2650 North Third Street
Harrisburg, PA 17110
Andrew C. Sheely, Esq.
127 South Market Street
P.O. Box 95
Mechanicsburg, PA 17055
Date: April 14, 2004
GOLDBERG,
kTZMAN & SHIPMAN, P.C.
)hn DeLorenzo, Esquire
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2004-00268 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
COMMERCIAL REALTY GROUP INC
VS
ESHLEMAN YVONNE ET AL
R. Thomas Kline
duly sworn according to law,
and inquiry for the within named DEFENDANT
RIMMER WALTER
but was unable to locate Him
deputized the sheriff of YORK
serve the within COMPLAINT
, Sheriff or Deputy Sheriff who being
says, that he made a diligent search and
to wit:
in his bailiwick.
County,
& NOTICE
He therefore
Pennsylvania, to
On May 7th , 2004 , this office was in receipt of the
attached return from YORK
Sheriff's Costs:
Docketing 18.00
Out of County 9.00
Surcharge 10.00
Dep York County 35.50
.00
72.50
05/07/2004
So answe~s~ /~[', ~//
R. Thomas Kline //
Sheriff of Cumberland County
METTE EVANS WOODSIDE
Sworn and subscribed to before me
this ~/ ~day of ~ .~f
O~O~/ A.D.
ProthonOtary
SHERIFF'S RETURN - REGULAR
CASE NO: 2004-00268 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
COMMERCIAL REALTY GROUP INC
VS
ESHLEMAN YVONNE ET AL
CPL. TIMOTHY REITZ ,
Cumberland County, Pennsylvania,
says, the within COMPLAINT & NOTICE
RICH VALLEY ASSOCIATES
DEFENDANT , at 1058:00 HOURS,
at 3609 GETTYSBURG ROAD
CAMP HILL, PA 17011
MARK R T SIMPSON, PARTNER,
a true and attested copy of COMPLAINT & NOTICE
Sheriff or Deputy Sheriff of
who being duly sworn according to law,
was served upon
the
on the 25th day of February , __
by handing to
ADULT IN CHARGE
together with
2004
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10o00
.00
16.00
Sworn and Subscribed to before
me this /] ~
day of ~/
~ A.D.
So Answers:
R. Thomas Kline
05/07/2004
METTE EVANS WOODSIDE
By:~
?e u y S?eriff
SHERIFF'S
CASE NO: 2004-00268 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
COMMERCIAL REALTY GROUP INC
VS
ESHLEMAN YVONNE ET AL
RETURN
- OUT OF COUNTY
R. Thomas Kline
duly sworn according to law,
and inquiry for the within named DEFENDANT
RIMMER FAMILY TRUST
but was unable to locate Them
deputized the sheriff of YORK
serve the within COMPLAINT
, Sheriff or Deputy Sheriff who being
says, that he made a diligent search and
, to wit:
in his bailiwick.
County,
& NOTICE
He therefore
Pennsylvania, to
On May 7th , 2004
attached return from YORK
Sheriff's Costs:
Docketing
Out of County
Surcharge
6.00
.00
10.00
.00
.00
16.00
05/07/2004
METTE EVANS WOODSIDE
Sworn and subscribed to before me
this ~ ~day of ~
Prothonotary
this office was in receipt of the
Sheriff of Cumberland County
SHERIFF'S RETURN - REGULAR
CASE NO: 2004400268 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
COMMERCIAL REALTY GROUP INC
VS
ESHLEMAN YVONNE ET AL
CPL. TIMOTHY REITZ Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according
says, the within COMPLAINT & NOTICE was served upon
195 ASSOCIATES INC
DEFENDANT , at 1058:00 HOURS,
at 3609 GETTYSBURG ROAD
CAMP HILL, PA 17011
MARK R T SIMPSON, PARTNER,
a
the
on the 25th day of February , __
by handing to
ADULT IN CHARGE
true and attested copy of COMPLAINT & NOTICE together with
to law,
2004
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00
.00
16.00
Sworn and Subscribed to before
me this ~ day of
So Answers:
R. Thomas Kline
05/07/2004
METTE EVANS WOODSIDE
SHERIFF'S RETURN
CASE NO: 2004-00268 P
COMMON-WEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
COMMERCIAL REALTY GROUP INC
VS
ESHLEMAN YVONNE ET AL
- REGULAR
CPL. TIMOTHY REITZ
Cumberland County, Pennsylvania,
says, the within COMPLAINT & NOTICE
SIMPSON MARK R T
DEFENDANT , at 1058:00 HOURS,
at 3609 GETTYSBURG ROAD
CAMP HILL, PA 17011
MARK R T SIMPSON
a true and attested copy of COMPLAINT & NOTICE
Sheriff or Deputy Sheriff of
who being duly sworn according to law,
was served upon
the
on the 25th day of February , __
together with
by handing to
2004
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service 9.66
Affidavit .00
Surcharge 10.00
.00
25.66
Sworn and Subscribed to before
me this // Z~day of ~
Prothonot~y
So Answers:
R. Thomas Kline
05/07/2004
METTE EVANS WOODSIDE
SHERIFF'S
CASE NO: 2004-00268 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
COMMERCIAL REALTY GROUP INC
VS
ESHLEMAN YVONNE ET AL
RETURN - REGULAR
GERALD WORTHINGTON ,
Cumberland County, Pennsylvania,
says, the within COMPLAINT & NOTICE
WALKER KENNETH A
DEFENDANT , at 1555:00 HOURS,
at 3310 MARKET STREET
CA~P HILL, PA 17011
JOHN DETWEILER, PRESIDENT,
a true and attested copy of
Sheriff or Deputy Sheriff of
who being duly sworn according to law,
was served upon
the
on the 24th day of February ,
by handing to
ADULT IN CHARGE
COMPLAINT & NOTICE together with
2004
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service 10.35
Affidavit .00
Surcharge 10.00
.00
26.35
Sworn and Subscribed to before
me this // ~day of ~
~ A.D.
So Answers:
R. Thomas Kline
05/07/2004
METTE EVANS WOODSIDE
COUNTY OF YORK i of 2
OFFICE OF THE SHERIFF
28 EAST MARKET ST., YORK, PA 17401
SERVICE CALL
(717) 771-9601
SHERIFF SERVICE
PROCESS RECEIPT and AFFIDAVIT OF RETURN
1PLAINTIFF/S/
Cc~mercial Realty Group Inc.
3DEFENDANTIS/
Yvonne Eshelman et al
COURT.UMBER
04-268 nivll
TYPE OF ~IT OR COMPLAINT
Notice and Con,plaint
SERVE ~' 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, FTC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD
Walter Rimner
6 ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO, CITY, BORO, TWP, STATE AND ZIP CODE)
AT 6740 Harmony Grove Dover, PA 17315
7~ INDICATE SERVICE: O PERSONAL r~ PERSON IN CHARGE .~I~DEPUTIZE O CERT.MAIL. 0 1 ST CLASS MAIL O POSTED [~ OTHER
NOW February 24 ,20 04 I, SHERIFF CFi COUNTY_, PA_..~do hereby de.p~ti~ the sheriff of
York COUNTY to execute~, m~ake, returl:z4f~e~e~f~G¢ording
to law. Th~s deputlzahon being made at the request and risk of the plambff. .,'~ ~-~- '* S¢
SHERIFF OF~ COUNTY
8. SPEC,AL ,NSTRUCT,ONS OR OTHER ,NFORMAT,ON THAT WILL ASSIST ,N EXPED'T'N~0~3~V~:~: COUNTY _ Ctz'nber]and
ADVANCE FEE PAID BY ATTORNEY
NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within wdt 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 sbedff to any plaintiff
herein for any loss, destruction, or removal of any property before s~erifFs sale ther~of.
9, TYPE NAME and ADDRESS of ATrORNEY / ORIGINATOR and SIGNATURE 10 TELEPHONE NUMBER 11. DATE FILED
CRAIG A. STONE 3401 N. FRQNT ST. PO BOX 5950 HARRISBURG PA 17110 717-232-5000 02-23-2004
12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (T~is area must be completed if notice is to be mailed).
CUMBERLAND COUNTY SHERIFF"S DEPT.
13 I acknowledge receipt of thewrit 14~ DATE RECEIVED 115. Expiration/Hearing Date
orcomplaintasindtCatedsbove. RONDA M. AHRENS / RAT 02-25-2004 I 03-24-2004
16. HOWSERVED: PERSONAL(~;r RESiDENCE(~I~ POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW
17. O I hereby cerbty and return a NOT FOUND because ) am unable to locate the individual, combeny, etc, named above. (See remarks below,)
2~NAME~T~T~E~F~N/~V~DUALBERVED~TADDREBSHE~E~FN~TS~VVNA~VE~Re~.ti~n~hipfoD~fendant~ 20. T75~
22. RE~RKS:
23. Advance Costs 124_.ServiceCosts12~N/F'l'~:M"~. [27. Postagel,2.8. SubTotal 129. Pound[3onotury [3f. Surchg. 132_ To{. Costs133. C~tsO~ea'~3~beck,o.
41. AFFIRMED nd bscdbed to be¢o e this 44 Si nature of 45
j ..~ ¢ '~ARIAL SEAL ;"~u,r~,~ol~.~ Signatureo~York // 47. DJ~TE
./~' ~"~/f.~.~y~, ~/~ ~r.,~-~ Cou,ty Sheriff '
5(~ I AC~NOVVLEDGE RECEIPY'OF THE SHE'RI~'~RETU~N SIGNATURE ] 51 DATE RECEIVED
OF/AUTHORIZED ISSUING AUTHORITY ANcO ?~TLE
1. WHITE - Issuing Authority 2 PINK - Attorney 3. CANARY - Sheri~s Office 4 BLUE - Shedths Oft-~e
COUNTY OF YORK 2 of 2
OFFICE OF THE SHERIFF
28 EAST MARKET ST.. YORK, PA 17401
SERVICE CALL
(717) 771-9601
SHERIFF SERVICE
PROCESS RECEIPT and AFFIDAVIT OF RETURN
I PLAINTIFF/S/
3 DEFENDANT/S/
SERVEAT {
~ TYPE ONEY 1:I2
DO NOT DE_T~H ANY~S
2. COURT NUMBER
Commercial Realty Group Inc 04-P6R ~iv~l
4. TYPE OF WRIT OR COMPLAINT
Yvonne Eshelman et al Notice and Cu.plaint
5 NAME OF INDIVIDUAL. COMPANY. CORPORAllON. ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED. A]-FACHED. OR SOLD.
Rimmer Fanily Tr~st c/o Walter Rimmer
6. ADDRESS (STREET OR RFO WITH BOX NUMBER. APT NO.. Cll'~. BORO. TVYP. STATE AND ZIP CODE)
6740 Harmony Grove Dover. PA 17315
7. INDICATE SERVICE: Q PERSONAL O PERSON IN CHARGE ~'DEPUTIZE O CERT. MAIL Q 1 ST CLASS MAIL O POSTED Q OTHER
NOW V~b'n~s~-y 74 ,20 04 _ I, SHERIFC~"a~)~COUNTY, PA, do hereby deputize the sheriff of
York COUNTY to execut~ake returnable, according
to law. This deputization being made at the request and risk of the plaintiff. ',~ ~---"~'~-,~-.,~ ,~'~. '...~
SHERiFF OF ~t (~I~"U~'T~ "~
8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE:
OUT OF COUNTY - Cumberland
ADVANCE FEE PAID BY ATTORNEY
NOTE: ONLY APPUCABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same
w;thout a watchman, in custody of whomever is found in possession, after notifying person of leW or attachment, without liability on the part of such deputy or the sheriff to any plaintiff
CRAIG A. STONE 3401 N. FRONT ST. PO BOX 5950 HARRISBURG PA 17110 717-232-5000 02-23-2004
CUMBERLAND COUNTY SHERIFF's DEPT.XXXXXXXXXXXXX
SPACE BELOW ~ ~ OF ~ ~:--~ ~ WRITE BB. OW Tu',i,S LINE
orcomplaintasindicatedabove. RONDA M. AHRENS / RAT 02-25-2004 03-24-2004
16. HOWSERVED: PERSONAL(~'r~ RESiDENCE(~I'~ POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS SELOW
11~1hE%r~% ,'l~TffiL~ ~T,I~tD;vmI~)uNAOLTsFEORUvNEDD , LlbeCass~-S~DI ~EUsn~ H%Rt°E IF Nl°cat%Tule~H%=t/~oC°~l~;~latiet:~l%ip ,me~o L~eV:~J(antS~e remarks bel%,.B/ate o.~S~r~ce 20 Ti;n~.of .~e~l~e~
23. Advance Costs 24 Service Costs 25N/F/ ~*'*~6.iM'i~i~t 27. Postage 28. SubTofal 29. P~und 30. Nota~y 31 Surchg. 32. TotCosts 33 C~stsDue0~Ref~nd CheckNo
34-Foreign County Costs I 35. Advance Costa I 36. Service Costs I 37. Notar/Cert. I 38. Mileage/Po~l~e/Not Fou nd ,39 TotalCosts ] 40. Costs Due or Refund
41. AFFIRMED and subscribed to before me this ~ 44 S '~ // /- SO A'~J~
, *'~ ;! J SHAFFER. Notary ~ ]'-' 4~'. Signature o~ York ~.~ .~__
- ~? York, York eoun~ -
COMMERCIAL REALTY GROUP, INC.
Plaintiff
VS.
YVONNE ESHLEMAN, ESTATE OF
FREDERICK M. ESHLEMAN, WALTER
E. RIMMER, RIMMER FAMILY TRUST,
MARLIN L. LEHMER, KENNETH A.
WALKER, JOHN MURPHY, MARK R.T.
SIMPSON, 195 ASSOCIATES, INC. AND
RICH VALLEY ASSOCIATES,
Defendants
) IN THE COURT OF COMMON PLEAS
) CUMBERLAND COUNTY, PENNSYLVANIA
)
) No. 04-268 Civil
)
) CIVIL ACTION - LAYvV
)
)
)
)
)
)
)
)
PRAECIPE TO WITHDRAW
NEW MATYER AND coUNTERCLAIM OF DEI~'ENDANT JOHN MURPHY
- T_O plJtlNTIP'F'S COMPLAINT_
TO THE PROTHONOTARY:
Please withdraw the New Matter and Counterclaim filed[ to the above term and number
on behalf of Defendant, John Murphy, to Plaintiffs Complaint.
By
Respectfully submitted,
~UCE D. FOREMAN, ESQUI
4409 North Front Street
Harrisburg, PA 17no
(7~7) 236-939~
ID #2n93
Attorneys for Defendant John Murphy
Date: July ~4, 2004
COMMERCIAL REALTY GROUP, 1NC.
CLAIMANT
VS.
YvONNE ESHLEMAN, WALTER
RIMMER, FREDERICK A. M.
ESHLEMAN, DONALD C. RIMMER,
RIMMER FAMILY TRUST, MARLIN L.
LEHMER
OWNERS
REGARDING REAL ESTATE
pREMISES SITUATED AT:
SOUTHEAST CORNER OF THE
INTERSECTION OF INTERSTATE
ROUTE 81 AND PA ROUTE 114,
CUMBERLAND COUNTY TAX
PARCEL NO. 38-06-0011-012
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND cOUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-268 Civil
PRAECIPE.
TO THE PROTHONOTARY:
Kindly mark the above-captioned action withdrawn and the broker lien settled and discontinued
with prejudice.
By:
J$~.~Ernic o, Esq.
u. e 5ou, X.D. 07981
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorney for Claimant
401537vl