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HomeMy WebLinkAbout08-193673/27/2008 11:13 AM MWN - Armour, Michelle Page: 2 David E. Lehman I . D. No. 15243 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 (717) 260-1716 (fax) JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. MT. ZION ASSOCIATES, L.P., Defendant NO. 0 ?-, ' 136 Ga.lI J&-41 IN EQUITY AND FOR DECLARATORY JUDGMENT 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se David E. Lehman I.D. No. 15243 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 (717) 260-1716 JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs V. MT. ZION ASSOCIATES, L.P., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 6 ?? q (e cilycry. IN EQUITY AND FOR DECLARATORY JUDGMENT COMPLAINT IN EQUITY AND FOR DECLARATORY JUDGMENT 1. Plaintiffs are John C. Harbilas and Kathryn M. Harbilas, his wife, adult individuals residing at 817 Mandy Lane, Camp Hill, Cumberland County, Pennsylvania (sometimes hereinafter referred to as "Harbilas" in the singular and masculine form). 2. Defendant is Mt. Zion Associates, L.P., a Pennsylvania limited partnership with its principal office at 20 Erford Road, Suite 10, Lemoyne, Pennsylvania 17043 (sometimes hereinafter referred to as "Mt. Zion"). 3. In this action, Harbilas asks the Court to fix and determine his rights, and the obligations of Mt. Zion, respecting a tract of land, identified below. Harbilas and Mt. Zion have entered into several agreements respecting the site, over a period of years between 1996 and 2006. The parties having disagreed with respect to their current and future rights, and this action is brought to declare and determine those rights, and to permit Harbilas to proceed thereafter without further obligation to Mt. Zion, as the Court shall finally determine in this proceeding. 4. Harbilas is the equitable owner of a tract of property located adjacent to Good Hope Road, Hampden Township, Cumberland County, Pennsylvania. That tract is more fully described in the Real Estate Option Agreement executed January 7, 1997 between John C. Harbilas and Kathryn Harbilas and Eugene R. Deimler, Sr., of Hampden Township ("Deimler"), which Option Agreement is appended as Exhibit 1. 5. Thereafter, Harbilas entered into an agreement with Deimler for the sale of the subject real estate, by an agreement dated December 9, 2004, a copy of which Agreement of Sale is appended hereto and marked as Exhibit 2. Harbilas has met all of his payment responsibilities under the said Agreement of Sale, and is the rightful equitable owner of said tract, pursuant to the Agreement of Sale, subject only to prior conveyance of a portion of the said tract (commonly referred to by the parties as Lot No. 1 under the subdivision preliminary/final subdivision plan documents.) 6. Harbilas entered into several agreements with Mt. Zion, pertaining to Mt. Zion's plans for development of an office park. In that regard, Harbilas entered into a Real Estate Option Agreement dated July 23, 1996, a copy of which is appended hereto and marked as Exhibit 3. 7. Thereafter, by a Restated Second Amendment to the Real Estate Option Agreement, dated October 31, 1997, Harbilas and Mt. Zion added Lot No. 2 to the scope of the prior Option Agreement and otherwise modified their agreements in accordance with the terms of that document, a copy of which is appended hereto and marked as Exhibit 4. 8. Thereafter, by an "August 2002 Amendment," the parties further confirmed and stated their rights and obligations inter se, with respect to the said property. A copy of that further amendment is attached hereto and marked as Exhibit 5. 2 9. Pursuant to the August 2002 Amendment (Exhibit 5), Mt. Zion held certain rights to acquire some portion or all of Lot No. 2, in accordance with the terms of that Agreement. 10. On or about August 12, 2002, Harbilas and Mt. Zion held settlement with respect to the sale and transfer of Lot No. 1 and conveyances were duly executed by and among the necessary parties, in order to effect the completion of that transaction. 11. Mt. Zion took certain steps with respect to its development interest in a portion of Lot No. 2, prior to the "Expiration Date," noted in the August 2002 Agreement. 12. The August 2002 Amendment (Exhibit 5) confirmed that the buyer had "until 11:59 p.m. on February 15, 2005 (the "Expiration Date") within which to exercise the option herein granted ..." 13. By letter dated February 14, 2005, Mt. Zion purported to exercise its option right under the August 2002 Amendment, with respect to a 23.31 acre portion of Lot No. 2. A copy of the Mt. Zion notice, as delivered to Harbilas, is appended hereto as Exhibit 6 to this Complaint. 14. Although Mt. Zion purported to claim a material failure of required cooperation on the part of Harbilas (and Deimler), in fact, Mt. Zion's purported exercise of its option rights was ineffectual, and, for the reasons more fully stated below, and to be established at hearing on the trial of this action, the Court will determine that Mt. Zion forfeited its rights to exercise the Option Agreement. 15. Notwithstanding the self-serving statements in Exhibit 6, Mt. Zion was unable to effectively exercise its rights under the August 2002 Amendment because Mt. Zion did not have an approved subdivision plan for the tract which it sought to acquire. 16. Mt. Zion's failure to have an approved subdivision plan for the defined tract was not due any failure by Harbilas (or Deimler) to reasonably cooperate in the 3 development of a satisfactory or agreeable subdivision plan. To the contrary, any objections voiced by Harbilas to the various proposed subdivision plans related to concerns which Harbilas legitimately held respecting the coordination of this partial option exercise with respect to the development prospects for the remaining tract of land, not to be acquired by Mt. Zion under the exercise of its option. 17. Accordingly, Harbilas contends in this action that his position with respect to the proposed subdivision plan, was justifiable and appropriate for protection of his own interest, and did not reflect a failure of reasonable cooperation. To the contrary, positions taken by Mt. Zion reflected an overreaching and a breach of the duty of good faith and fair dealing which the Agreement required between the parties. In particular, the Agreement required coordination of development activities (particularly road extensions and utilities) between tracts to be acquired by Mt. Zion and tracts retained by Harbilas. Mt. Zion's conduct provided reasonable justification for Harbilas to withhold an expression of complete consent and agreement to draft subdivision plans proposed by Mt. Zion, until those issues were resolved. 18. Mt. Zion also was unable to obtain a timely and necessary approval of its desired subdivision for the 23.31 acre tract, because Mt. Zion was itself in breach of a contractual commitment it made to Hampden Township in 1998. That obligation, reflected in an "Agreement to Grant Real Property" committed Mt. Zion to convey to the township a 4 acre parcel of land, adjacent to the existing township municipal sewer facilities, to facilitate future expansion of the sewer plant. 19. Hampden Township's inaction on any subdivision plan of Mt. Zion, whether experienced in 2004 or 2005, was due, in materially part, to the failure of Mt. Zion to perform in accordance with its undertakings with the township, as stated above. 20. Mt. Zion's failure to fairly address and properly resolved Harbilas' concerns 4 for the reasonable coordination of Mt. Zion's proposed subdivision and land development plans with the future development needs of the residual tract, justified Harbilas in withholding a current expression of "approval" for Mt. Zion's proposed plan. 21. Mt. Zion failed to obtain a timely subdivision plan approval, which was a legal prerequisite and condition precedent to any obligation on the part of Harbilas, as seller, to proceed to closing on the identified parcel. 22. To the information and belief of Harbilas, Mt. Zion has never tendered to Harbilas evidence of approval of the subdivision plan which would permit the lawful conveyance of a properly subdivided parcel (as described in the February 14, 2005 notice). 23. Harbilas has performed and otherwise reasonably complied with obligations called for under his agreements with Mt. Zion. To the extent that any specific act or event remains undone or incomplete, that matter does not excuse or discharge Mt. Zion from its duty to fully and timely perform its obligations. 24. Notwithstanding that Mt. Zion was not in a proper and enforceable position to enforce its rights, Mt. Zion commenced an action in the Court of Common Pleas of Cumberland County, titled "Mt Zion Associates L.P. Plaintiff v. John C. Harbilas. Kathryn M Harbilas Eugene R Deimler Sr and the Eugene R. Deimler. Sr. Trust. Defendants, docketed to No. 05-1279 Civil. 25. Mt. Zion caused a "lis pendens" to be docketed to the above-determined number, signifying that its claim affected title to the Deimler Farm property and to Harbilas' equitable ownership thereof. Mt. Zion thereby sought to impair the title to the entire tract, notwithstanding that its claim affected only some 23 acres of the tract. 26. Mt. Zion has not proceeded further with the said legal action. 5 COUNTI JOHN C. HARBILAS AND KATHRYN M. HARBILAS v. MT. ZION ASSOCIATES, L.P. (CLAIM FOR DECLARATORY RELIEF) 27. The averments of paragraphs 1 through 26 above are incorporated herein by reference as though set forth at length. 28. A current and justiciable dispute exists between Harbilas and Mt. Zion concerning whether Mt. Zion holds any enforceable rights by reason of its purported exercise of rights under the option agreement, or the August 2002 amendment thereto. 29. In this action, Harbilas asks the Court to declare and determine that Mt. Zion has no further or enforceable rights to acquire the said 23.31-acre tract, identified in the February 14, 2005 letter (Exhibit 7). WHEREFORE, Plaintiffs respectfully request the Court to enter its judgment and decree that Mt. Zion's rights under the option agreement and the August 2002 amendment have expired, have been exhausted or are otherwise unenforceable. The right or claim by Mt. Zion for further performance by Harbilas under the said agreements is ended and extinguished and Mt. Zion claims should be forever barred, and the lis pendens entered against the Plaintiff and the subject property should be stricken from the record. Plaintiffs further request that costs of the action be awarded to them. COUNT II (ALTERNATIVE CLAIM FOR EQUITABLE RELIEF) 30. The averments of paragraphs 1-29 above are incorporated herein by reference as though set forth at length. 31. Should the Court, for any reason, not grant the relief requested in Count I, above, in the alternative, Plaintiffs request that the Court exercise its equitable authority, and order and direct Mt. Zion to proceed promptly with completion of its responsibilities under the parties' agreements, and to then grant equitable relief, including: 6 a. an Order directing Mt. Zion to perform its obligations toward Harbilas and Deimler, in accordance with its purported exercise of rights as set forth in Exhibit 6; b. that Mt. Zion be directed to present an approved subdivision plan, effectuating the obligations set forth in the agreements between Mt. Zion and Harbilas respecting interconnection of roadways, extension of easements for streets and utilities, and otherwise coordinating the land development plan features of Mt. Zion plan with the future development needs of the remaining tract; C. that Mt. Zion pay the agreed consideration, to have been $43,000/acre if paid in 2005, together with such additional sums as the Court shall reasonably determine will compensate Harbilas for the delayed performance by Mt. Zion, but not less than the legal rate of interest on the unpaid balance; and d. Such other relief as the Court may seem just and equitable under the circumstances. COUNT III (CLAIM FOR DECLARATORY RELIEF) 32. Paragraphs 1 through 31, above, are incorporated herein by reference as thought set forth at length. 33. Irrespective of whether the Court grants relief to Harbilas under Count I or, alternatively, Count Il, above, Harbilas further requests the Court to determine, to adjudicate that Mt. Zion has no further right, claim or interest in or upon conveyance of any further tract or parcel of land heretofore embraced under the parties' agreements. Accordingly, whether Mt. Zion is determined to have no further enforceable interest, or Mt. Zion is obligated to proceed to perform on its purported exercise of the option, Mt. Zion shall thereafter have no 7 right to performance and Harbilas shall have no further obligation or duty of performance to Mt. Zion respecting any residual tract. 34. Harbilas further requests the Court to strike and dismiss with prejudice the writ of summons issued by Mt. Zion in No. 05-1279, including its associated lis pendens. 35. In its adjudication, the Court is further requested to confirm that Mt. Zion remains obligated, as set forth in the real estate option agreement of July 23, 1996, to conduct its development activities on the property which it does own adjoining the subject premises, in a way which is coordinated with and does not unreasonably interfere with the development of the adjoining parcels, including an affirmation of Mt. Zion's duty to provide access easements through streets, together with the dedication of roads, and public utility lines and facilities in and through their premises, as shown on the approved preliminary subdivision plan for the office park. WHEREFORE, Plaintiffs requests the Court to grant declaratory relief, ending further claims or right of claim by Mt. Zion against Harbilas in connection with their prior agreements, as set forth above, together with such other relief as the Court may be just and equitable under all the circumstances. McNEES WALLACE & NURICK LLC c By David E. Lehman I.D. No. 15243 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5285 (717) 260-1716 Attorneys for Plaintiffs John C. and Kathryn M. Harbilas Dated: March 27, 2008 8 I harbilas.opVreal.esUBD F REAL ESTATE OPTION AGREEMENT r ? THIS REAL ESTIV OPTION AGREEMENT ("Agreement") is executed the day of i 996, by and between JOHN C. HARBILAS and KATHERINE HARBILAS, adult individuals and husband and wife, now of 817 Mandy Lane, Camp Hill, Pennsylvania 17011, or their nominee ("Buyer") and EUGENE R. DEIMLER, SR., single adult individual, now of 4875 Deimler Lane, Camp Hill, Pennsylvania 17011 ("Seller"). RECITALS: WHEREAS, Seller is the title owner of property known as the Deimler Farm located adjacent to Good Hope Road in Hampden Township, Cumberland County, Pennsylvania, as shown on a Preliminary/Final Subdivision Plan of Deimler Farm prepared by Act One Consultants, Inc., dated August 22, 1995 (the "Subdivision Plan"), attached hereto as Exhibit "A" and incorporated herein. The Deimler Farm consists of a tract of land, being Lot No. 1 on the Subdivision Plan, containing 62.0428 Acres, more or less, zoned Office-Professional (OP) and a tract, being Lot No. 2 on the Subdivision Plan, containing 104.2789 Acres, more or less, zoned Residential (RT). The total acreage of the Deimler Farm is 166.3217 Acres, more or less, subject to rights-of-way, as indicated in the Subdivision Plan; and WHEREAS Buyer is the equitable owner or beneficial owner of the Deimler Farm under valid Agreements of Sale or Option Agreement on the Deimler Farm, including an Agreement for the Sale of Real Estate, dated March 15, 1988 and recorded in the Office of the Recorder of Deeds of Cumberland County, May 10, 1988, in Miscellaneous Book 349, Page 1085; an Addendum to the said Agreement, dated May 10, 1988, and recorded in the Office of the Recorder of Deeds of Cumberland County May 18, 1988, in Miscellaneous Book 349, Page 1086; a second Addendum to the Agreement, dated June 29, 1995, between John C. Harbilas and Seller; and a third Addendum to the Agreement, dated April 2, 1996, between John C. Harbilas and Seller; the aforesaid Agreement and Addenda thereto, all of which are attached hereto, form Exhibit "B"' and are incorporated herein; and I WHEREAS, John C. Harbilas assigned his interest as Buyer in the ;aforesaid Agreement of Sale to Buyer, jointly, by Assignment, attached hereto as Exhibit "C" and i incorporated herein; and WHEREAS, the parties hereto each agree that Buyer has performed all obligations required to be performed and paid all amounts required to be paid to Seller under the aforesaid Agreements and Addenda thereto, through the date hereof; and WHEREAS, the parties, by executing this Agreement, intend to supersede and replace their existing agreements, as set forth in the cited exhibits with regard, to and to modify and clarify all agreements, obligations and rights relevant thereto. NOW, THEREFORE, in consideration of the sum of One ($1.00) Dollar, receipt of which is hereby acknowledged, the mutual modification of the aforesaid Agreements and Addenda thereto, and in exchange for other good and valuable consideration, receipt of which is hereby acknowledged, the Seller, for the period of time herein set forth, hereby gives and grants unto the Buyer the sole and exclusive right and option to purchase the Deimler Farm, or portions thereof, upon the following terms and conditions: 1. Recitals. The recitals set forth above are incorporated herein by reference. 2. Option Period/Expiration Date. Buyer shall have until March 15, 2005, to exercise the Option herein granted, unless extended by written agreement between Seller and Buyer, or as hereinafter provided. Buyer intends to attempt to exercise all options herein contained prior to the expiration date, but is not required to do so. i i 3. Purchase Price. Buyer has previously paid Seller which payment Seller acknowledges, and for which Sellerta ke.Qs, on designation and ?r" l 4 subdivision by Buyer, to the transfer and conveyance of any f ''1 Acres of the Deimler Farm designated by Buyer to Buyer or Buyer's nominee. On the transfer to Buyer by Seller of land owned by Buyer in Licking Creek Township, Fulton County, Pennsylvania, more particularly bounded and described in a deed reeer?ie May 29, 44%, in the Office of the Recorder of Deeds of Fulton County in Deed Book 182, Page 388, Seller will transfer to Buyer any designated and subdivided twenty (20) acres I ' 2 j1 r zoned OP on the Deimler Farm. On or before December 31, 1997, Buyer agrees to pay an additional One Hundred Thousand and 00/100 ($100,000.00) Dollars to Seller, in exchange for which Buyer, on designation and subdivision of a portion of the Deimler Farm, at Buyer's option, shall receive an additional 6.666 Acres. On or before December 31, 1998, Buyer agrees to pay an additional One Hundred and 00/100 ($100,000.00) Dollars to Seller in exchange for which Buyer, on designation and subdivision of the portion of the Deimler Farm, at Buyer's option, shall receive an additional 6.666 acres. Thereafter at any time, or from time to time, through the term hereof, Buyer may designate an additional portion or portions of the Deimler Farm and receive title and conveyance to the same at a price of Fifteen Thousand and 00/100 ($15,000.00) Dollars per acre. Buyer may exercise the option provided in this paragraph once or as many times as Buyer desires and may accumulate acreage paid for at various times and thereafter receive transfers of acreage therefor. buyer may designate others to receive conveyance directly from Seller under the terms hereof. 4. Compliance with Mt. Zion 0 tion. The p parties each acknowledge that John c. Harbilas has entered into an Option Agreement with Mt. Zion Associates, L.T., dated July 23, 1996, wherein Mt. Zion Associates obtained certain rights to inspect and purchase some portions of Tract No. 1 of the Deimler Farm on the Subdivision Plan. The Agreement with Mt. Zion Associates is evidenced by a Memorandum of Real Estate Option Agreement, recorded in the Office of the Recorder of . Deeds of Cumberland County. Seller confirms that he has joined in same and :agrees to cooperate fully with Buyer in complying with all terms, conditions and obligations thereof, including but not limited to providing access, cooperating in obtaining subdivision and other government approvals, maintaining the lands subject to the Mt. Zion Option, protecting the same from lien or encumbrance, except as allowed for therein, conveyance thereof on the exercise of the Mt. Zion Option and providing good title. 5. Access and and Inspection. The Buyer shall have the right and the Seller shall cooperate with Buyer to allow Buyer feasibility studies concerning the purchase of the Deimler Fans or any portion thereof, including environmental studies (Phase I and, if appropriate, Phase II surveys), water studies, soil studies, survey, appraisals, engineering studies, etc. 3 / 'i 6. Property. The option herein granted shall apply to such portion(s) of the property as determined by Buyer (in accordance with the provisions hereof) in Buyer's notice to exercise the same. 7. Notice and Settlement. In the event Buyer exercises the option, the sole means of exercising the option shall be by written notice, describing the property (which shall be a separately subdivided parcel), sent be certified mail, return receipt requested, or by overnight delivery service requiring receipt (such as UPS; Federal Express or similar companies) postmarked prior to the expiration date set forth herein, addressed to Seller, notifying Seller in writing of the exercise thereof and theItime and place for settlement, which shall not be less than five (5) days nor more than sixty (60) days after the date of said notice (or shall be held at such other time and place as the parties may agree upon in writing). Buyer shall make payment of the purchase price for the portion of the property then being purchased, as to which the. option is exercised, in full at settlement. No single exercise of the option shall extinguish this option, and the Buyer may exercise the same as to parcels of land subject to the option on one or more occasions. Any funds previously paid to Seller hereunder shall entitle Buyer to designate land at the rates set forth herein for conveyance on the conditions herein set forth. 8. Failure to Exercise Option. To the extent that Buyer fails to exercise the option, Buyer shall have no further duties or obligation to Seller, except fot physical damage to the property, if any, which Buyer may have caused and for which Buyer is and shall remain liable hereunder, and all sums theretofore paid by Buyer to Seller for which Buyer does not exercise an option, if any, shall be retained by Seller as Seller's total consideration for granting the option. 9. Plans, Zoning and Subdivision. Buyer, or Buyer's nominee or ;agent, is authorized to procure, at no expense to Seller, surveys or other plans showing the perimeter of the property and such other topographical or engineering data and features as determined necessary or desirable by Buyer. Buyer may, at Buyer's expense prepare subdivision and/or land development plans for the property or any portions thereof. The lot layout, design and conditions shown on such plans shall be determined by Buyer, with the consent of Seller, which shall not be unreasonably withheld, delayed or conditioned. Following the exercise of the option, Buyer shall have the right, at no expenses to Seller, to have any final subdivision, land development plan 4 f. , or similar plan showing the property as to which the option is exercised recorded, at Buyer's discretion. i i 10. Covenants of Seller. Seller covenants and agrees that: a. Seller is the title owner of the Deimler Farm, subject to Buyer's equitable ownership therein. i b. Seller will maintain his ownership and take all actions, including payment of taxes to enable Seller to sell and convey the portions of the Deimler Farm on which Buyer exercises his option and to perform all terms and conditions hereof, including delivery of good and marketable title. j C. Seller will not take any actions or permit any inaction or omission which would create or assist in creating defects in title from the date hereof until the expiration date (or settlement, if the option is exercised), or which would encumber the property to an extent and upon such terms as would prevent Seller from performing this Agreement. Any mortgages or other monetary encumbrances shall contain an unconditional obligation of the holder thereof to release the property or portions thereof designated by Buyer, as herein provided, for no consideration, as to the first five (5) Acres, and for no more than ninety (90%) percent of the purchase price set forth herein, for the remaining land. Any mortgages, judgments or obligations shall be released at the request; of Buyer for no consideration from Buyer (except for payment of the purchase price required hereunder). d. Seller will cooperate reasonably, if requested by Buyer, in securing assurances from the appropriate governmental authorities relating to subdivision, use, water, sewer, and building permits and will give such assistance to Buyer, or Buyer's assignees or nominees, as may be reasonably necessary, other than money, to make appropriate soil, engineering and environmental tests, including execution of any documents reasonably required by Buyer to effectuate the same. Buyer shall provide a reasonable notice and review period to Seller for any such requested cooperation. 5 ?r e. Buyer or Buyer's nominee or duty authorized agents or contractors shall have the right to go upon the property, from time to time, from the date hereof, for the duration of this Agreement for the purpose of conducting appropriate tests, investigations and surveys, including but not limited to making topographical and boundary line surveys, to conduct soil tests for percolation and load bearing, to dig probe pits eight (8) feet or more in depth, for environmental studies, water studies, soil studies, appraisals, engineering and to make such other examinations or use of the property as Buyer may deem i necessary in Buyer's sole discretion. 11. Covenants of Buyer. Buyer covenants and agrees that Buyer shall give prior notice of Buyer's intended entry onto the property for any activities on the property contemplated by the foregoing paragraph hereof, shall use reasonable testing techniques that are designed to be the least disruptive to any growing crops and existing use of the land, and shall promptly restore the property to the condition existing prior to such tests (including top soil to its pre-testing depth), and shall indemnify and save harmless Seller against any loss or liability resulting from the entry of Buyer or Buyer's nominees or their duly authorized agents or contractors in conjunction with the activities described in the preceding paragraph. This obligation shall survive termination of the option. 12. Time of the Essence. Time shall be of the essence as to this Agreement and of all obligations hereunder. 13. Exercise Option. In the event the option is exercised by Buyer, it shall become an agreement of sale as to the portion of the property as to which it is exercised duly binding upon the Seller and the Buyer, and their respective heirs, successors and assigns, as hereinafter provided, subject to the following, additional terms and conditions: a. Payment of Purchase Price. The purchase price; for the portion of the property as to which it is then exercised shall be paid at the closing. b. Title. Buyer shall, at no expense to Seller, secure whatever evidence of title Buyer desires; provided, however, Seller's conveyance must be 6 found to convey good and marketable title to the property being conveyed in fee simple, free and clear of all liens and encumbrances, except easements and restrictions which do not unreasonably interfere with Buyer's intended use of the property. C. Deed. At settlement, the Seller shall convey to Buyer or Buyer's nominee, title as aforesaid by special warranty deed. d. Taxes and Assessments. Seller and Buyer agree to peorate, as of the date of closing, all real estate taxes and rents. Seller shall be liable for all assessments prior to closing. e. Possession. Possession of the portion of the property being conveyed shall be given to Buyer immediately upon delivery of deed from Seller. f. Closing of Transaction. Closing (or settlement) on this transaction shall not be less than five (5) days or more than sixty (66) days after notice to Seller of Buyer's election to exercise the option, but closing shall not occur until Buyer has caused to be recorded a duly approved subdivision plan for the portion of the property being purchased. g. Closing Expenses. Each party shall pay closing and expenses as is customary. Transfer taxes shall be paid fifty (50%) percent by each party. 14. Condition of the Property. Seller shall not, during the term of this Agreement, exercise Seller's rights of ownership so as to interfere with or alter the condition of the property as it exists on the date hereof. 15. Condemnation. In the event of condemnation of the property, the Seller shall advise the Buyer of said condemnation upon receipt of notice of the proceeding. Any award made pursuant to the proceeding shall be paid to the parties hereunder as their interests may then appear pursuant to this Agreement. 16. Defective Title. If the title to the property is found to be defective or unmarketable or any part of the property is subject to liens, encumbrances; easements, conditions or restrictions, the Seller shall have a reasonable time, not exceeding sixty 7 (60) days after written notice thereof, in which to remedy or remove any such defect, lien, encumbrance, easement, condition, restriction or encroachment. If the Seller is unable to remedy, remove or secure title insurance against such defect, lien, encumbrance, easement, condition, restriction, or encroachment within such reasonable time, Buyer shall be entitled to terminate this Agreement and to receive a return, in full, of all monies theretofore paid by Buyer to Seller, if any, or, if such objection is liquidated as to amount, to pay so much of the proceeds' due Seller at closing to satisfy such objection, but otherwise to waive said defects and accept such title as Seller is able to grant and convey, at Buyer's option. Upon termination, if elected the obligations and duties of the parties hereto (to one another) shall cease and terminate, and each party shall be relieved and fully released from any and all damage or claims in favor of any other party to this Agreement. 17. Default. Upon default or breach of this Agreement by Seller, Buyer shall, at Buyer's election, be entitled: (a) to a return of all option; consideration theretofore paid, to reimbursement by Seller of all expenses incurred by Buyer in pursuing the terms of this Agreement, both with interest at the prime rata of interest as published in The Wall Street Journal or its successor publication, from time to time, plus four (4%) percent (the °Interest") and to damages, or (b) to specific performance. In either case, Buyer shall also be entitled to recover from Seller Buyers reasonable attorney's fees and costs incurred as a consequence of Seller's default. 18. Tax Free Exchange. Both parties agree that either party may wish to treat the conveyance of this property as a tax free exchange of like kind properties as may be permitted under Section 1031 of the United States Internal Revenue Code. In the event that either party is able to arrange for the acquisition of other property which can be exchanged for the property in such a tax free transaction, the parties agree that each of them will cooperate to conclude such a like kind exchange on a tax free basis, if at all possible. In exchange for a party's cooperation for such efforts, the requesting party agrees to bear and pay in full all of the other parties' reasonable costs and expenses associated with the tax free exchange and further to indemnify and save harmless the other parties from any loss, cost or claim, including reasonable attorney's and accountant's fees caused to the other parties as a result of such like ;kind exchange and any review, audit or dispute of the same by the Internal Revenue Service. In the event a party chooses to treat the transaction as a tax free exchange, Such party may assign this contract to another person or entity without first obtaining the written 8 consent of the other party. Under such assignment, the party so assigning will assign its rights under this Agreement as contemplated by Treasury Regulation Section 1.1031(K)-1(g)(4)(V) but not its obligations under this Agreement. Closing shall not be delayed by an assignment as set forth in this paragraph. 19. Gender/Number. Whenever the context herein so requires, the singular number shall include the plural, the plural shall include the singular, and the use of any gender shall be applicable to all genders. 20. Headings. The headings or captions preceding the paragraphs in this Agreement are inserted for convenience of reference only and shall not be construed in interpreting this Agreement. 21. Pennsylvania Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. 22. Entire Agreement. This Agreement contains the entire understanding between the parties hereto and supersedes any prior written or oral ',agreements between them respecting the within subject matter, including but not limited to those Agreements and Addenda thereto set forth in the recital hereto and incorporated herein. There are no representations, agreements, arrangements or understandings, oral or written, between or among the parties hereto relating to the subject matter of this Agreement which are not fully expressed herein. 23. Formal Tender. Formal tender of deed and purchase; money are hereby waived. i 24. Assigns. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties hereto. i 25. Survival of Covenants. All covenants and provisions hereof which expressly or impliedly are intended to survive settlement shall survive the settlement and the execution and delivery of the deed and conveyance and shall not be merged therein. 9 I y „26. Modifications/Waiver. No change or modification to this Agreement shall be valid unless the same is in writing and signed by the parties hereto. No waiver of the provisions of this Agreement shall be valid unless in writing and signed by the party against whom such waiver is sought to be enforced. 27. Notice. Any notice required hereunder shall be hand deli ivered, sent by certified United States mail, postage prepaid, or sent by overnight delivery service requiring receipt (such as Federal Express or UPS) to the parties, and shall be deemed to have been given upon actual receipt or refusal of such notice at the following addresses: If to the Buyer: Mr. and Mrs. John C. Harbilas 817 Mandy Lane Camp Hill, PA 17011 With a copy to: Bruce D. Foreman, Esquire 3207 North Front Street Harrisburg, PA 17110-1311 If to the Seller: Mr..Eugene R. Deimler, Sr. 4875 Deimler Lane Camp Hill, PA 17011 28. Real Estate Broker. John C. Harbilas is a licensed real estate agent and broker in the Commonwealth of Pennsylvania, which fact is known to Seller. 29. Waiver of Tender. Tender of an executed deed and/or the purchase price, in the event of a default, is hereby waived. 30. Memorandum of Option. This Agreement may be recorded, and if requested, all parties hereto agree to execute a Memorandum of option in recordable form setting forth the duration of the Option and such other terms and conditions as are necessary to give notice of the provisions hereof. 10 i IN` WITNESS WHEREOF, the parties hereto, intending to be legally; bound hereby, have executed this Agreement the day and year first above-written. WITNESS: BUYER: r. John C. Har ilas Katherine Harbilas WITNESS: SELLER: E ene R. Deimler, Sr. 11 a- AGREEMENT FOR THE SALE OF REAL ESTATE THIS AGREEMENT is made this day of beCk;M6g = 200 , by and between Eugene R. Deimler, Sr., an adult individual, of 4875 Deimler Lane, Camp Hill, Cumberland County, Pennsylvania 17011, • and Deimler, Sr., Trust, Eugene R. Daimler, Trustee, hereinafter jointly called "Seller", and John C. Harbilas and Kathryn Harbilas, adult individuals and husband and wife, of 817 Mandy Lane, Camp Hill, Cumberland County, Pennsylvania 17011, or his assigns, hereinafter collectively called "Purchaser". WHEREAS, Seller is the title owner of record of the Real Estate known as the Deimhr Farm located adjacent to Good Hope Road in Hampden Township, Cumberland County, Pennsylvania, more fully described on Exhibit A attached hereto and incorporated herein by reference, hereinafter referred to as the "Real Estate"; and WHEREAS, Seller and Purchaser had previously executed a Real Estate Option Agreement (the "Option Agreement) for Real Estate dated January 7, 1997, and recorded in the Office of the Recorder of Deeds of Cumberland County January 17, 1997, in Miscellaneous Book 538, Page 1113, as amended August 12, 2002; and WHEREAS, the Option Agreement provides an expiration date of March 15, 2005; and WHEREAS, the. Option Period set forth in the Option Agreement may expire without Purchaser having fully exercised his rights regarding Real Estate under the Option Agreement; and WHEREAS, Seller desires to sell and Purchaser agrees to purchase remaining Real Estate under and subject to the terms and conditions hereinafter provided which the parties desire to confirm in, writing. NOW, THEREFORE, and in consideration of their mutual promises and covenants, and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: RECITALS: The recitals set forth above are incorporated herein by reference. 2. SALE AND PURCHASE. Seller hereby agrees to sell, transfer and convey to Purchaser, who agrees to purchase, Real Estate. The parties agree that Purchaser shall have all rights which Purchaser had as Optlonee under the above-referenced Option Agreement, except that payments by Purchaser shall be made as set forth herein. 3. PURCHASE PRICE. Purchaser shall pay the sum of Seven Hundred Twelve Thousand Six Hundred Ninety and 00/100 ($712,690.00) Dollars, to Seller, as follows: a. The principal sum of One Hundred Thousand and 00/100 ($100,000.00) Dollars, on March 15, 2005; and b. The principal sum of One Hundred Thousand and 001100 ($100,000.00) Dollars, on June 15, 2006. C. The balance of the purchase price principal in the sum of Five Hundred Twelve Thousand Six Hundred Ninety and 00/100 ($512,690.00) Dollars, to be paid on March 15, 2008. d. Purchaser retains right of pre-payment without penalty. 4. INTEREST ON PURCHASE PRICE. Purchaser shall pay annual interest on the outstanding balance of the purchase price to Seller, reduced in accord with the principal payments made that year, which interest shall begin to accrue on March 15, 2005, as follows: a. On 'March 15, 2006, Purchaser will pay an annual interest payment at a rate of five (5%) percent of the current outstanding balance of the purchase price due to Seller. b. On March 15, 2007, Purchaser will pay an annual interest payment at a rate of five (5%) percent of the current outstanding balance of the purchase price due to Seller; and C. On March 15, 2008, Purchaser will pay a final interest payment at a rate of five (5%) percent of the current outstanding balance of the purchase price concurrently due to Seller. 5. REAL ESTATE TO BE CONVEYED. Purchaser may designate within the limitations set forth herein a portion of the Real Estate, being equal to the amount of land which has been paid for by Purchaser under this agreement based upon the per-acre price determined by the prior Option and dividing the total sale/purchase price by the total acreage, and Purchaser shall be entitled to receive title and conveyance to the same after subdivision. All costs, expenses and fees required to effect an approved subdivision shall be paid for solely by Purchaser without contribution or reimbursement by Seller. Seller will cooperate with Purchaser in the subdivision process. The parties-agree that upon payment of the $100,000.00 by Purchaser to Seller due on March 15, 2005, Purchaser shall be entitled to 63.432 acres of land based upon payments previously or then made. Limitation on designation: Purchaser's right to designate land for conveyance shall be limited to: (a) A tract of unimproved land (not to include any buildings on said designated tract). (b) The location of such tract shall be situated so that Seller's remaining land will be accessible to an existing public road by direct adjoiner in such manner that such remaining land can be developed in accordance with existing zoning regulations of Hampden Township. (c) Such designated land shall not include any of the existing buildings or other structures. 2 (d) if the designated land includes any wells providing water to the remaining lands improved with existing buildings, an appropriate easement and right-of-way shall be provided and reserved for Seller appurtenant to said remaining land- (e) Said designated land shall be conveyed subject to Seller's obligation to extend all utilities which may be constructed on the designated land to the boundary of Seller's remaining lands in order to provide said remaining lands with the right to connect thereto for the development and use of the remaining lands in accordance with the existing zoning regulations of Hampden Township. The term "utilities" shall include sanitary sewer, water, gas, electricity, telephone and cable television. 6. NOTICE ON REAL ESTATE TO BE CONVEYED. Purchaser shall provide Seller with six (6) months notice of Purchaser's intent to designate a portion or portions of Real Estate to which Purchaser is to received title and conveyance. Said notice is necessary so that Seller can continue to farm portions of the Real Estate until final settlement. However, Purchaser will be entitled to take ownership and possession of Real Estate without delay if Seller is not currently farming the portion of Real Estate. 7. DEED AND TITLE. The title to the premises shall be conveyed to Purchaser by Seller's special warranty deed, conveying good and marketable title, free and clear of all other judgments, liens and encumbrances, subject only to easements, rights-of way and restrictions of record and those which a physical inspection of the Real Estate would disclose. Title shall be such as will be insured by any reputable title insurance company, doing business in Pennsylva- nia, at its regular rates. 8. TAXES. County, municipal and school district Real Estate taxes shall be paid by Seller until final settlement. Sewer, trash and other municipal charges shall be paid by Seller and apportioned pro rata as of the date of settlement. Seller will be solely responsible for any reduced assessment of Real Estate due to the use of the land or the roll back of taxes, including any clean and green provisions. 9. SETTLEMENT. Settlement, subject to satisfaction of all contingencies herein set forth, shall take place on or before the 15" day of March, 2008, at the law offices of Foreman &, Foreman PC, 4409 North Front Street, Harrisburg, Pennsylvania, or at such other place as the parties may hereafter agree to in writing. 10. POSSESSION. Purchaser shall be entitled to possession of the Real Estate as of the date of settlement for that portion of Real Estate. However, Purchaser and/or their agents shall be allowed access to the Real Estate for the purpose of conducting inspections and/or appraisals of the Real Estate but Purchaser shall be responsible to Seller for any damages to growing crops caused by such inspections and/or appraisals. 11. SELLER'S DEFAULT. If Seller is unable to deliver the quality of title required in accordance with the terms of this Agreement, Purchaser shall have the option of terminating this Agreement, or cure title at Seller's expense. 12. REAL ESTATE TRANSFER TAXES. Each party agrees to pay one-half (1/2) of the realty transfer taxes which may be required to be paid as a result of any transfer at the time the deed is recorded. - 13. CURRENT USE. Except as specifically stated below, Seller represents that he has not received any notice from any governmental authority of any violation of any laws relating to the current use or condition of the Real Estate and warrants that he will comply with the requirements of all notices received prior to the date of final settlement at his sole cost and expense. It is specifically understood and agreed that both parties hereto have actual knowledge of an environmental problem concerning ground water contamination presently identified as being located generally in the northeastern area of the real estate and that possible remediation may be required. Purchaser as equitable owner covenants and agrees to cure said groundwater problem at such time as enforcement action may require, and Purchaser agrees to indemnify Seller and hold him harmless of and from any and all costs, expenses, penalties or fines hereinafter arising from said enforcement action and the curing of the problem. The responsibilities of Purchaser in this paragraph 13 shall commence immediately upon the execution of this agreement. The provisions of this paragraph 13 shall survive final settlement of the sale of the Real Estate. 14. CONDITION OF REAL _ESTATE. Seller shall not be responsible for the curing of any existing environmental problems discovered on Real Estate. Purchaser or his assigns shall be responsible for the curing of any existing environmental problems disclosed to Purchaser as of this date. Seller shall be responsible for cleaning all debris, trash and other materials from Real Estate, including, but not limited to, tires and vehicles currently on Real Estate. Seller agrees to allow Purchaser full and complete access to the Real Estate to remediate any existing environmental problems thereon, including digging of wells. 15. ENTIRE AGREEMENT. It is further understood that. this Agreement and the documents herein referenced contain the entire Agreement between Seller and Purchaser and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise, of any kind whatsoever concerning this sale, Furthermore, this Agreement shall not be amended except in writing executed by the parties hereto. The terms of this Agreement shall survive settlement. 16. EFFECTIVE DATE OF THIS AGREEMENT. Except as otherwise provided hereinabove, this Agreement will be effective as of the termination of an existing Option with Mt. Zion Associates and with Purchaser and, in- the event the Option with Mt. Zion Associates is exercised in part but not with regard to all lands herein covered, this Agreement shall be pro rated by acreage in or when the Option is exercised and continue with regard to remaining lands and, if the Option is exercised with regard to all lands which are the subject of this Agreement, this Agreement shall terminate and no party shall have any further obligation hereunder. Until the expiration of the Option with Purchaser, Purchaser may act under that Option. 17. BINDING EFFECT. This Agreement shall be binding upon the parties hereto, their respective heirs, executors, administrators, successors and assigns. Specifically, Purchaser may take title to any portion of said Real Estate in his own name or in the name of - any assignee, and Purchaser may assign any portion of this Agreement to any assignee. 4 IS. GOVERNING I..A1N. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, hereunto set their hands and seals the day and year first above written. Witness: SELLER: e-?O*e? E E R. DEIMLER, SR. T IMLER SR. TRUST EOCENE R. DEIMLER, SR. TRUSTEE PURCHASER: N C. HARBILAS J KA HRY HARBILAS COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF On this, the TVOL day of 0ffCrWar1L , 2004, before me, the undersigned officer, personally appeared Eugene R. Deimler, Sr. and The Deimler Sr,, Trust, Eugene R. Daimler, Sr., Trustee, known to me (or satisfactorily proven) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged that he/she/they executed the same for the purposes herein contained- IN WITNESS WHEREOF, I hereunto set my hand and official seal. My Commission Expires: COMMONWEALTH OF PENNSYLVANIA Notarial Seal Susan L. Matiazi, Notary Public MechancsWrg Boro, Cumberland County My COfnr *SiOn Fires Nov. 24, 2007 Member, Pennsylvania Association Of Notaries . _.__ ..?..?.• _ COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF On this, the Vk day of D eCeMbV' 2004, before me, the undersigned officer, personally appeared John C. Harbilas and Kathryn Harbilas, known to me (or satisfactorily proven) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged that he/shelthey executed the same for the purposes herein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. My Commission Expires; 000 Notary Public MMONWEALTH OF PENNSYLVANIA Notarial Seal Loreltn L. C loodling, Notary Public 6 My N clo?mm?ion Sam, Dauphin 2Cotaq 3, 2006 Member, Pennsylvania Assodetlon of Notaries r EXHIBIT A DESCRIPTION OF REAL ESTATE ALL that certain tract of land containing 104.2789 acres situated in the Township of Hampden, County of Cumberland and Commonwealth of Pennsylvania, being all of Lot No. 2 as shown on a certain plan of lots entitled "Preliminary/Final Subdivision Plan of Deimler Farm" dated August 22, 1995 and last revised on September 21, 1995, recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Plan Book 85, Page 103. 3 REAL ESTATE OPTION AGREEMENT THIS REAL ESTATE OPTION AGREEMENT ("Agreement") is made this 23rd day of July, 1996, by and between Mt. Zion Associates, L.P., a Pennsylvania limited partnership, with its principal office at 20 Erford Road, Suite 201, Lemoyne, PA 17043, or its nominee ("Buyer") and John C. Harbilas, of 817 Mandy Lane, Camp Hill, PA 17011 ("Seller"). RECITALS: The background to this Option is as follows: R-1. Eugene R. Deimler, Sr. ("Deimler") is the owner of property known as the Deimler Farm located adjacent to Good Hope Road in Hampden Township, Cumberland County, Pennsylvania, as shown on a Preliminary/Final Subdivision Plan of Deimler Farm by Act One Consultants, Inc. dated August 22, 1995 (the "Subdivision Plan"). s R-2. Seller is the owner or beneficial owner under a valid Agreement of Sale or Option Agreement of the Deimler Farm, which is adjacent to lands of Buyer; and R-3. The parties, by executing this agreement, intend to create an Option in Buyer to purchase a portion of the Deimler Farm; said portion being identified as Lot 11 on the Subdivision Plan less, however, a portion of Lot 11 not i exceeding four acres, fronting on Good Hope Road, to be designated by the Seller, as more fully provided hereinafter, ` which Lot it is zoned office - professional and located adjacent t to said lands of Buyer and being referred to herein as the 4 "Property". t ti 5 NOW, THEREFORE, in consideration of the sum of one ($1.00) Dollar, rreceipt of which is hereby acknowledged, the Seller, for the period of time herein set forth, hereby gives and grants unto.the Buyer the sole and exclusive right and i option to purchase the Property ("Option"), upon the following terms and conditions: 1. Recitals. The recitals set forth above are incorporated herein`by reference. 2. O tion Pe 'od x iratio at . Buyer shall have six (6) years from the date of execution and delivery of a fully executed counterpart (including Joinder) of this Agreement to Buyer (the "Expiration Date") within which to exercise the Option herein granted, unless extended by written agreement between Seller and Buyer, or as hereinafter provided. 3. Purchase Price. The purchase price to be paid for the Property shall be based upon the time period (year) following the execution of this option in which the Buyer exercises the rights to purchase and the acreage (net of any currently existing streets or public rights of way), calculated by a registered land surveyor to the nearest hundredth of an acre, in the portion of the Property as to which the Buyer has exercised the Option, as follows: Year Price Per Acre 2 $30,000.00 3 $32,000.00 4 yr? 7 2 '-$34,000.00 )? 9 Ir 4 $36,000.00 J.j\ 6 $38,000.06 .-3 ) wv a "-I $40, 000.00 T ,/k? Za?? 2 i The price per acre or, more particularly, the acreage for which the Buyer makes payment, shall be calculated on the basis of the year in which the payment is actually made to the Seller. For example, if the Buyer makes a payment of $100,000.00 in year one, the Buyer shall be entitled to 3 1/3 acres, but if that same ($100,000.00) payment is made in year three, the Buyer shall only be entitled to 2.941 acres. Notwithstanding the foregoing provision, in the event settlement is delayed through no fault of the Buyer, and the closing is not held during a year in which a payment is scheduled, then the Buyer shall be entitled to credit for acreage (and the per acre price), at the price which would have obtained had the closing occurred in the year in which the Buyer was prepared to close (except for the delay not occasioned by the Buyer). 4. Retained Tract/Property. The Property shall not include a tract of land fronting on Good Hope Road and containing up to four acres of ground, as selected and determined by Seller, with the approval of the Buyer, which shall not be unreasonably withheld or delayed (the "Retained Tract"). The Seller shall designate the boundaries of the Retained Tract, in a general way, within sixty (60) days following execution of this Agreement, and shall cause a subdivision plan of the Retained Tract to be filed with Hampden Township within ninety (90) days thereafter, at Sellers expense. Seller shall diligently pursue securing such subdivision approval. Seller agrees that the Retained Tract 3 4 shall be subject to a restrictive covenant, enforceable by Buyer, that the building to be constructed on the Retained Tract will be a first class office building, or of the style and construction quality of the office buildings in Lemoyne Square. All of Lot ,#1, other than the Retained Tract, shall constitute the Property. Each portion of the Property as to which Buyer exercises the Option shall be contiguous and adjacent to the property currently owned by Buyer (situated to the north and east of the Property), shall be a parcel laid out with due regard for the reasonable development of the remaining Property in the event Buyer does not exercise its option with respect thereto, and each subsequent option parcel shall be adjacent and contiguous to property then owned by Buyer (or an affiliate of Buyer), as Buyer's Property may have been augmented by the prior exercise of this option. To the extent reasonable and feasible, the property line of each parcel to be acquired by Seller shall be at a ninety (900) degree angle to the right-of-way line for Interstate 81, where such new property line intersects with Interstate 81, unless otherwise agreed by the parties. 5. Inspection Period and Consideration. The Buyer shall have a period of ninety (90) days in which to conduct a feasibility study concerning the purchase of the Property, including environmental studies (Phase I, and, if appropriate, Phase II, surveys, and other testing as generally referenced in Paragraph 10 hereof). The Buyer will make any of its feasibility studies relating to the Property or its 4 characteristics (such as environmental studies, soil testing, traffic studies and the like), but not those studies dealing with financing or economic analysis available to Seller within a reasonable time following Buyer's receipt thereof. The Seller has, at Seller's expense, cause a registered land surveyor to survey the boundaries of the Property (i.e., the portion of the Deimler Farm which is the subject of this Option) which is located within the Office Professional Zone, as defined by the Hampden Township Zoning Ordinance, for the purpose of providing a legal description of the Property. At the execution hereof, the Buyer shall deposit with the Seller the sum of Twenty-Six Thousand ($26,000.00) Dollars, which sum shall be (i) repaid to Buyer in the event Buyer determines, during the feasibility period, that Buyer will not purchase the Property; or (ii) if Buyer determines at the conclusion of the feasibility study period to purchase the Property, then applicable to the purchase price Until the end of the feasibility study period, the $26,000.00 shall be represented by a promissory judgment note (the "Note") signed by Seller and Seller's wife. The Note shall be due and payable, without setoff, sixty (60) days following demand, and shall bear interest only following.its due date (i.e., 60 days after demand), such interest to be at the prime rate,of interest as published in The Wall Street Journal or its successor publication, from time to time, plus four (0) percent. The Note shall be deposited with Buyer's counsel, Wix, Wenger & Weidner, in escrow, and delivered to Buyer only if 5 Buyer determines and gives notice to Seller within the feasibility study period that Buyer has determined not to purchase the Property. At the conclusion of such feasibility study period, the Buyer shall pay to the Seller the additional sum of $74,000.00, which (together with the initial $26,000.00 payment) shall thereupon be non-refundable, but applicable to the purchase price,.if Buyer exercises the Option as to any portion of the Property. Thereafter, on or before the second anniversary of this option, the third anniversary of this Option, the fourth anniversary of this Option and the fifth anniversary of this Option, the Buyer shall pay to the Seller the sum of $100,000.00 (each year). Each of the foregoing payments shall be non-refundable, but shall be applicable to the purchase price, to the extent Buyer exercises the Option as to any portion of the Property. If the Buyer fails to make any of the foregoing payments, Buyers Option shall, upon written notice from Seller, terminate, and all monies theretofore paid by Buyer shall be retained by Seller as Seller's total compensation for all rights granted to Buyer and all claims which Seller may have against Buyer, for on account of or related to this Agreement, except for physical damage to the Property, if any, which Buyer may have caused and for which Buyer is and shall remain liable hereunder. 6. Property. The Option herein granted shall apply to such portion(s) of the Property as determined by Buyer (in 6 accordance with the provisions hereof) in Buyers notice to exercise the same. 7. Notice and Settlement. In the event Buyer exercises the Option, the sole means of exercising the Option shall be by written notice, describing the Property (which shall be a separately subdivided parcel), sent by certified mail, return receipt requested, or by overnight delivery service requiring receipt (such as UPS, Federal Express or similar companies) postmarked prior to the Expiration Date, addressed to Seller as provided in Paragraph 26 hereof, notifying Seller in writing of the exercise thereof and the time and place for settlement, which shall not be less than five (5) days nor more than sixty (60) days after the date of said notice (or shall be held at such other time and place as the parties may agree upon in writing). Buyer shall make payment of the purchase price for the portion of the Property then being purchased, as to which the Option is exercised, in full at settlement. No single exercise of the option shall extinguish this Option, and the Buyer may exercise the same as to parcels of land subject to the Option on one or more occasions. 8. Failure to Exercise option. In the event Buyer fails to exercise the Option, Buyer shall have no further duties or obligations to Seller, except for physical damage to the Property, if any, which Buyer may have caused and for which Buyer is and shall remain liable hereunder, and all sums theretofore paid by Buyer to Seller, if any, shall be retained 7 by Seller as Seller's total consideration for granting the Option. 9. Plans. Zoninq and Subdivision. Buyer is authorized to procure, at no expense to Seller, surveys or other plans showing the perimeter of the Property and such other topographical or engineering data and features as determined necessary or desirable by Buyer. Buyer may, at Buyer's expense, prepare subdivision and/or land development plans for the Property or any portions thereof. The lot layout, design and conditions shown on such plans shall be determined by Buyer, with the consent of Seller, which shall not be unreasonably withheld, delayed or conditioned. Following exercise of the Option, Buyer shall have the right, at no expense to Seller, to have any final subdivision, land development plan or similar plan showing the Property as to which the option is exercised recorded, at Buyer's discretion. 10. Covenants of Seller. Seller covenants and agrees that: (a) Seller is the equitable owner by virtue of Seller's option with Deimler, of the Property. (b) Seller will maintain his option, and take all actions, including payment to Deimler of all sums due to Deimler to enable Seller to sell and convey the Property and to perform all terms and conditions hereof, including delivery of good and marketable title. 8 5 (c) Seller will not take any actions or permit any inaction or omission which would create or assist in creating defects in title from the date hereof until the Expiration Date (or settlement, if the Option is exercised), or which would encumber the Property to an extent and upon such terms as would prevent Seller from performing.this Agreement. Any mortgages or other monetary encumbrances shall contain an unconditional obligation of the holder thereof to release the Property or portions thereof designated by Buyer, as herein provided, for no consideration, as to the first five acres, and for no more than ninety (90%) percent of the purchase price set forth herein, for the remaining land. Any mortgages, judgments or obligations shall be released at the request of Buyer for no consideration from Buyer (except for payment of the purchase price required hereunder). (d) Seller will cooperate reasonably, if requested by Buyer, in securing assurances from the appropriate governmental authorities relating to subdivision, use, water, sewer, and building permits and will give such assistance to Buyer, or Buyers assignees or nominees, as may be reasonably necessary, other than money, to secure such approvals and to make appropriate soil, engineering and environmental tests, including execution of any documents reasonably 9 I required by Buyer to effectuate the same. Buyer shall provide a reasonable notice and review period to Seller for any such requested cooperation. (e) Buyer or Buyer's nominee or duly authorized agents or contractors shall have the right to go upon the Property, from time to time, from the date hereof, for the duration of the Option for the purpose of conducting appropriate tests investigations and surveys, including but not limited to making topographical and boundary line surveys, to conduct soil tests for percolation and load bearing, to dig probe pits eight (8) feet or more in depth and to make such other examinations or use of the Property as Buyer may deem necessary in Buyer's sole discretion. (f) As record title to the tract of which the Property is a part is, as of the date of execution of this Agreement, owned by Daimler, a party other than Seller, Seller expressly covenants that Seller, at Seller's expense, will obtain any necessary consent and cooperation of such record title owner to the implementation of the provisions of this Option Agreement. Daimler, by his joinder herein, consents to this Agreement and agrees to cooperate, as reasonable, in effectuating the terms and conditions hereof. If, for any reason, Daimler fails to consent or cooperate 10 as herein provided, such failure shall be deemed a default and breach of this Agreement. 11. Covenants of Buver. Buyer covenants and agrees that: (a) Buyer shall give prior notice of Buyer's intended entry onto the Property for any activities on the Property contemplated by Paragraph 10(e) hereof, shall use testing techniques that are designed to be the least disruptive to Deimler's crops and existing use of the land, and shall promptly restore the Property to the condition existing prior to such tests (including top soil to its pretesting depth), and shall indemnify and save harmless Seller against any loss or liability resulting from the entry of Buyer or Buyers nominees or their duly authorized agents or contractors in conjunction with the activities described in the preceding Paragraph. This obligation shall survive termination of the option. (b) In order to protect crops growing on the Property, in the event the testing or other activities proposed by the Seller would have more than nominal damage to crops growing on the Property,-the Buyer will, prior to exercising its rights of inspection, provide to Deimler a plan showing the location of the testing to be performed or other activity and will also provide a general description of the activities which 11 the Buyer anticipates. Should Deimler object to such activity by or on behalf of the Buyer, then the Buyer agrees not to engage in such testing or other activity until the current crop has been harvested; provided, however, that the inspection period shall be extended by the delay so occasioned (a time period equal to the time between the date the testing plan and description are presented to Deimler and the date when Deimler authorizes the Buyer to proceed). 12. Time of the Essence. Time shall be of the essence as to this Agreement and of all obligations hereunder. 13. Exercise of Option. In the event the Option is exercised by Buyer, it shall become an agreement of sale as to the portion of the Property as to which it is exercised duly binding upon the Seller and the Buyer, and their respective heirs, successors and assigns, as hereinafter provided, subject to the following additional terms and conditions: (a) Payment of Purchase Price. The purchase price for the portion of the Property as to which it is then exercised shall be paid at the closing in the manner provided in Paragraph 3 hereof. (b) Title. Buyer shall, at no expense to Seller, secure whatever evidence of title Buyer desires; provided, however, Sellers conveyance must be found to convey good and marketable title to the Property being conveyed in fee simple, free and clear of all liens and ,t f 12 encumbrances ?i except easements and restrictions which do not unreasonably interfere with Buyer's intended use , e of the Property. (c) Deed. At settlement, the Seller shall convey to Buyer title as aforesaid by special warranty deed. (d) Taxes and Assessments. Seller and Buyer agree to prorate, as of the date of closing, all real estate taxes and rents. Seller shall be liable for all assessments prior to closing. (e) Possession. Possession of the portion of the Property being conveyed shall be given to Buyer immediately upon delivery of deed from Seller. (f) Closing of Transaction. Closing (or settlement) on this transaction shall not be less than five (5) days or more than sixty (60) days after notice to Seller of Buyer's election to exercise the Option, `6r but closing shall not occur until Buyer has caused to be recorded a duly approved subdivision plan for the portion of the Property being purchased. (g) Closing Extiens. Each party shall pay closing expenses as is customary. Transfer taxes shall be paid fifty (50%) percent by each party. 14. Condition of the Prn ?? oerty, Seller shall not, during the term of this Agreement, exercise Seller's rights of ownership so as to interfere with or alter the condition of the Property as it exists on the date hereof. 13 15. Condemnation. In the event of condemnation of the Property, the Seller shall advise the Buyer of said condemnation upon receipt of notice of said proceeding. Any award made pursuant to the proceeding shall be paid to the parties hereunder as their interests may then appear pursuant to this Agreement. 16. Defective Title. If the title to the Property is found to be defective or unmarketable or any part of the Property is subject to liens, encumbrances, easements, conditions or restrictions, the Seller shall have a reasonable time, not exceeding sixty (60) days after written notice thereof, in which to remedy or remove any such defect, lien, encumbrance, easement, condition, restriction or encroachment. If the Seller is unable to remedy, remove or to secure title insurance against such defect, lien, encumbrance, easement, condition, restriction or encroachment within such reasonable time, Buyer shall be entitled to terminate this Agreement and to receive a return, in full, of all monies theretofore paid by Buyer to Seller, if any, or, if such objection is liquidated as to amount, to pay so much of the proceeds due Seller at closing to satisfy such objection, but otherwise to waive said defects and accept such title as Seller is able to grant and convey, at Buyer's option. Upon termination, if elected, the obligations and duties of the parties hereto (to one another) shall cease and terminate, and each party shall be relieved and fully 14 . ? released from any and all damage or claims in favor of any other party to this Agreement arising out of it. 17. 2efault. Upon default or breach of this Agreement by Seller, Buyer shall, at Buyer's election, be entitled: (a) to a return of all option consideration theretofore paid, to reimbursement by Seller of all expenses incurred by Buyer in pursuing the terms of this Agreement, both with interest at the prime rate of interest as published in The Wall Street Journal or its successor publication, from time to time, plus four (4%) percent (the "Interest") and to damages, or (b) to specific performance. In either case, Buyer shall also be entitled to recover from Seller Buyer's reasonable attorneys fees and costs incurred as a consequence of Seller's default. 18. General Provisions`Relati to Develo ment. Seller and Buyer agree that development of the Property, the Retained Tract, and the remaining portion of the Deimler Farm should be accomplished in a fashion which does not unreasonably interfere with development of other portions of the aforesaid tracts. To that end, streets, water lines, sewer lines, and other utilities serving any of the aforementioned tracts shall be designed to accommodate the reasonably anticipated requirements for development of other portions of the Deimler Farm. Each party agrees that the other may connect with or tie into streets or utilities constructed on any portion of the Deimler Farm, regardless of who constructs the same, and each party (to include Deimler) will grant easements reasonably 15 necessary to effectuate this provision. The Buyer will be responsible for making initial payment for all streets, sewers and water located on the Property, as well as the cost of preparing and filing all subdivision plans (except for the Retained Tract). While the Buyer shall bear the initial cost of the foregoing, and shall permit the seller to connect and tie into any of the aforesaid streets or utilities, the Buyer shall be entitled to reimbursement for connection fees or such other compensation from the governmental authorities or public utilities as is permitted to Buyer by law or by agreements negotiated with such governmental authorities or public utilities, and the Seller shall not be relieved of the cost or expense thereof by virtue of the provisions of this Agreement. 19. Underlying Agreement of Sale. The parties acknowledge that the tract of which the Property is a part is the subject of an Agreement of Sale by and between the record title owner and Harbilas, Seller herein. The parties expressly agree that, if for any reason Harbilas/Seller fails to perform any obligation under said Agreement of Sale, or exercise any right thereunder, Buyer in its sole discretion may cure any default by Harbilas/Seller under said Agreement of Sale, and perform any obligation and exercise any right thereunder on behalf of Harbilas/Seller in order to preserve Buyer's Option. In such an event, Buyer shall be entitled to credit any reasonable costs incurred by it on account of such cure, performance and exercise together with Interest thereon from the 16 time the expenses of cure were incurred against the purchase price set forth in this option Agreement, or, in the event Buyer terminates this Agreement due to Seller's default, then to recover the same from Seller. 20. Easements. Buyer agrees to provide to the Seller access easements through streets which are intended to be dedicated for public roads (prior to dedication thereof) and utility easements, together with the right to construct public utility lines and facilities therein, all over, upon and through the Property. The location and capacity of such utility lines are subject to the approval of the Buyer, which will not be unreasonably withheld or delayed. Such utility lines shall be laid out with due regard for the reasonable development of the Property. The easement granted by Buyer shall contain a provision allowing the Buyer, at Buyer's expense, to relocate such easement and the utility facilities located therein, at Buyer's sole cost and expense, in the event the location approved by Buyer should subsequently impair Buyer's development of the Property. 21. Tax Free Exchanae. Both parties agree that either party or Daimler may wish to treat the conveyance of this Property as a tax-free exchange of like kind properties as may be permitted under Section 1031 of the United States Internal Revenue Code. In the event that either party or Daimler is able to arrange for the acquisition of other property which can be exchanged for the Property in such a tax free transaction,,the 17 parties and Deimler agree that each of them will cooperate to conclude such a like kind exchange on a tax free basis, if at all possible. In exchange for a party's cooperation for such efforts, the requesting party (to include Deimler) agrees to bear and pay in full all of the other parties' (to include Deimler) reasonable costs and expenses associated with the tax- free exchange and further to indemnify and save harmless the other parties (to include Deimler) from any loss, cost or claim, including reasonable attorney's and accountant's fees caused to the other parties (to include Deimler) as a result of such like kind exchange and any review, audit or dispute of same by the Internal Revenue Service. In the event a party (to include Deimler) chooses to treat the transaction as a tax-free exchange, such party (to include Deimler) may assign this contract to another person or entity without first obtaining the written consent of the other party (to include Deimler). Under such assignment, the party so assigning will assign its rights under this Agreement as contemplated by Treasury Regulation Section 1.1031 (K)-1(g)(4)(V) but not its obligations under this Agreement. Closing shall not be delayed by an assignment as set forth in this Paragraph. 22. Gender/Number. Whenever the context herein so requires, the singular number shall include the plural, the plural shall include the singular, and the use of any gender shall be applicable to all genders. 18 23. Headings. The headings or captions preceding the paragraphs in this Agreement are inserted for convenience of reference only and shall not be construed in interpreting this Agreement. 24. Pennsylvania Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. 25. Entire Agreement. This Agreement contains the entire understanding between the parties hereto and supersedes any prior written or oral agreements between them respecting the within subject matter, except a Utility Easement Agreement and/or Right of First Refusal Agreement, if any, executed by the parties of even date. There are no representations, agreements, arrangements or understandings, oral or written, between or among the parties hereto relating to the subject matter of this Agreement which are not fully expressed herein. 26. Formal Tender. Formal tender of deed and purchase money are hereby waived. 27. Assigns. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties hereto. 28. Survival of Covenants. All covenants and provisions hereof which expressly or impliedly are intended to survive settlement shall survive the settlement and the execution and delivery of the deed of conveyance-and shall not be merged therein. 19 29. Modifications/waiver. No change or modification to this Agreement shall be valid unless the same is in writing and signed by the parties hereto. No waiver of the provisions of this Agreement shall be valid unless in writing and signed by the party against whom such waiver is sought to be enforced. 30. Notice. Any notice required hereunder shall be hand delivered, sent by certified United States mail, postage prepaid, or sent bysovernight delivery service requiring receipt (such as Federal Express or UPS) to the parties, and shall be deemed to have been given upon actual receipt or refusal of such notice, at the following addresses: If to the Seller: Mr. and Mrs. John C. Harbilas 817 Mandy Lane, Camp Hill, PA 17011 With a copy to: Bruce D. Foreman, Esquire Nicholas & Foreman 3207 N. Front Street Harrisburg, PA 17110 If to the Buyer: Mt. Zion Associates 20 Erford Road, Suite 201 Lemoyne, PA 17043 With a copy to: Wix, Wenger & Weidner 508 North Second Street Harrisburg, PA 17101 31. Waiver of Tender. Tender of an executed deed and/or the purchase price, in the event of a default, is hereby waived. 32. Memorandum of Option. Upon payment by Buyer to Seller of the initial $100,000.00 consideration, this Agreement may be recorded, and if requested, all parties hereto agree to execute a Memorandum of Option in recordable form,setting forth 20 e the duration of the Option and such other terms and conditions as are necessary to give notice of the provisions hereof. In the event Buyer fails to make any of the payments required herein, including, without limitation, the payments due on each anniversary date, strictly in accordance with the terms of this Option, or after thirty (30) days written notice and failure to cure, fails to perform any other material term or provision of this Agreement, then.the Buyer shall, upon written notice from Seller, promptly sign such reasonable documentation as is prepared by Seller, including, without limitation, a release of this option, evidencing the termination of all of the Buyer's right, title and interest to the portions of the Property as to which Buyer has not exercised its options and made payment therefor. IN WITNESS WHEREOF, the parties hereto, INTENDING TO BE LEGALLY BOUND HEREBY, have executed this Agreement the day and year first above written. WITNESS: BUYER: MT. ZION ASSOCIATES, L.P. By its sole general partner Mt. Zion Associates, Inc. t C? H OW"p U44C By . TG4 WITNESS : SELLE ohn C. Hark r las 21 COMMONWEALTH OF PENNSYLVANIA : SS.. COUNTY OF On this, the r?Q4L-day of . v L , 1996, before me, a Notary Public, the undersigned office F, personally appeared Timothy C. Harrison, who acknowledged himself to be the president of Mt. Zion Associates, Inc., the sole general partner of Mt. Zion Associates, L.P., a Pennsylvania limited partnership, and that he, as such president, being authorized to do so, executed the foregoing instrument as.the act and deed of said partnership for the purposes therein contained by signing the name of the corporation himself as president. seal. IN WITNESS WHEREOF COMMONWEALTH OF PENNSYLVANIA COUNTY OF ?„?k(N I hereunto set my hand and official .- X0. o ary Public - My Commission Expires: (SEAL) Notarial Seal Loretta B. Eciter. Notary Public Camp Him Boro, Cumberland County A My Commission Expires Nov. 9.1998 - SS.: On this, the @5?iday of l?l 1996, before me a Notary Public, the undersigned officer, personally appeared John C. Harbilas, an adult individual, known to me (or satisfactorily proven) to be the person named in the foregoing instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I h unto set m a d and official seal. ` ? N ary Public My Commission Expires: (SEAL) C:\DAW\D000MfEHTS\HBC.oPT July 17, 1996 NOTARIAL SEAL USA M. LONG. Notary Public City of Harrisburg. Dauphin County M Commission Expires April 28. 1997 22 JOINDER OF EUGENE DEIMLER Eugene Deimler, for good and valuable consideration, the receipt of which is hereby acknowledged, and intending to be legally bound, joins in the foregoing Real Estate Option Agreement for the purpose of evidencing his consent to the terms and conditions thereof, insofar as he has any interest in the Property, as defined therein, and agrees that any interests he has therein are and shall be subject to the rights.and privileges of the Buyer, as set forth therein. IN WITNESS WHEREOF, Eugene Deimler, INTENDING TO BE L( AL Y BOUND HEREBY, has executed this Joinder this 9A day of , 1996: WIT ESS. uge a De mler COMMONWEALTH OF PENNSYLVANIA COUNTY OF SS.: On this, the ? ?SP a Notary Public, the undersignedfo cer e ' 1996, before me, Eugene Deimler, an adult individual, known p to s me a (or appeared satisfactorily proven) to be the person named in this Joinder, and acknowledged that he executed the same for the purposes therein contained. seal. IN WITNESS WHEREOF, I hereunto set my hand and official Not y ublic My Commission Exp s; (SEAL) ttc?t Seal a cblw. NO WY Rblc °mm ,sace Accounting Offices of JOHN C. HARBILAS AND ASSOCIATES )ffice: (717) 238-5353 33 North Second Street FAX: (717) 238-5355 Harrisburg, PA 17101 July 24, 1996 Eugene R. Deimler received from John C. Harbilas, $26,000.OC on account of purchase price of Deimler Farm in Hampden township at $15,000.OC per acre. Accepted as consideration in joining agreement between John C. Harbilas and Mt. Zion Associates. $26,000.00 isburg, Pennsylvania July U, 1996 FOR VALUE RECEIVED AND INTENDING TO BE NGALLY BOUND HEREBY, the undersigned (jointly and severally "Maker'}), hereby promises to pay to Mt. Zion Associates, L.P., a Pennsylvania limited partnership ("Payee"), sixty (60) days after demand, the principal sum of Twenty Six Thousand and 00/100 Dollars, without defalcation, for valued received, with interest commencing sixty (60) days after demand, at the prime rate of interest as published in The Wall Street Journal, or its successor publication, from time to time, plus four (0) percent. Maker hereby waives presentment, grace, demand for notice of dishonor, ? payment, protest and notice of protest, and any and all other notices and demands in connection with this Note. The liability of Maker shall be unconditional without regard to the liability of any other party and shall not be affected in any manner by any indulgence whatsoever Payee in any manner, including, withoutn limitation Seanydreto b lease or substitution of any collateral, extension of time, renewal, waiver or other modification. Any failure of Payee to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time and from time to time thereafter. UPON DEFAULT HEREUNDER, Maker hereby authorizes any attorney of any court of record of Pennsylvania or elsewhere to appear for and enter and confess judgment against Maker for the above sum, the principal hereof, interest and all-other obligations of Maker to Payee, with or without declaration, with costs of suit, with attorneys' fees, with release of all errors, and without stay of execution. Maker also waives the right of inquisition on any real estate that may be levied upon in any action to collect this Note and does hereby voluntarily condemn the same and authorizes the prothonotary to enter upon any writ such voluntary condemnation. Maker further agrees that real estate may be sold on a writ of execution and does hereby waive and release all relief from any and all appraisement, stay or exemption of laws of any state, now in force or hereafter to be passed and all errors in any judgment in an action herein and in any process or proceeding thereon. The authority to appear, enter and confess judgment hereby granted shall not be exhausted by any one or more or by any defective exercise thereof, but shall be available and may be exercised at any time or times on such number of occasions and in such manner as Payee requires or any attorney for Payee deems necessary or desirable until the full principal sum, with all interest and other obligations due Payee, has been paid in q RESTATED SECOND AMENDMENT TO REAL ESTATE OPTION AGREEMENT THIS RESTATED SECOND AMENDMENT TO REAL ESTATE OPTION AGREEMENT (the "Second Amendment") is made this 4??day of October, 1997, by and between Mt. Zion Associates, L.P., a Pennsylvania limited partnership with its principal office. at 20 Erford Road, Suite 201, Lemoyne, Pennsylvania 17043, or its nominee (the "Buyer") and John C. Harbilas, of 817 Mandy Lane, Camp Hill, Pennsylvania 17011 (the "Seller").. Recitals The background to this Amendment is as follows: R-1. Pursuant to a certain Real Estate Option Agreement dated July 23, 1996 (the "Option"), Seller granted to Buyer an option to purchase certain property identified as Lot Number 1 ("Lot 1111) on a Preliminary/ Final Subdivision Plan of Deimler Farm prepared by Act One Consultants, Inc. dated August 22, 1995, as amended (the "Subdivision Plan"). R-2. Pursuant to an Amendment to Real Estate Option Agreement dated April 8, 1997 (the "Amendment"), the parties amended the Option to include Lot, Numbdr 2 on the Subdivision Plan ("Lot 12) as part of the "Property" (as defined in the Option), subject to the terms and conditions of the Option and the Amendment. R-3. Pursuant to a notice from Buyer's counsel dated September 5, 1997, Buyer terminated the Option with respect to Lot 12. R-4. The parties hereto desire to reinstate the option as to Lot 12 and to amend the option and the Amendment so that the term "Property", as defined in the Option and the Amendment includes Lot 01, Lot #2 and the "Retained Tract," as defined in the Option, under the terms and conditions contained herein. R-5. The parties hereto further desire to amend the Option and the Amendment to modify the term of the Option granted therein. NOW THEREFORE, in consideration of the sum of $1.00 and other good and valuable consideration, the receipt and sufficiency of which' is hereby acknowledged, and INTENDING TO BE LEGALLY BOUND HEREBY, the parties hereby agree to amend the Option and the Amendment upon the following terms and conditions: 1. Recitals. The recitals set forth above are incorporated herein by reference as if set forth in full. 2. The Property. The term Property as set forth in the Option and the Amendment shall include the entire area of Lot #l, Lot 12 and the Retained Tract as set forth in the Subdivision Plan and further defined in the option and the Amendment and each shall be subject to the terms and conditions of the Option, the Amendment and this Second Amendment; provided, however, that the inclusion of Lot 02 shall, also be subject to the following: (a) Rezoning. The parties acknowledge that Lot #2 is currently zoned RT (Residential Town). Buyer shall have four months from the date of execution and delivery of this Amendment by all parties (including the joinder of Deimler, attached hereto) to complete, at Buyer's sole cost and expense, a rezoning of Lot #2 to OP (Office Professional) (or such other comparable zone then in effect if OP is no longer available). Provided, however, that if Buyer shall, within four (4) months of the date hereof, notify Seller of a favorable indication, in Buyer's reasonable discretion, regarding the rezoning request (e.g., a positive recommendation from the ` planning commission or statements of approval from the Board of Commissioners) then Buyer shall, upon making the additional payments and required by Section 2(b) hereunder, be granted an additional two (2) months beyond the initial four (4) month period in which to complete the rezoning. If Buyer shall be unable to accomplish said rezoning within the period allotted, either party shall have the right,' but not the obligation, to terminate the option as to Lot 12 (but Seller shall not have the right to terminate as to Lot #1) by written notice to the other party, in which event all payments made by Buyer to Seller pursuant to this Second Amendment shall be applied by Seller as a credit toward the next due option payments for and also to the purchase price of Lot 01; and thereupon neither party shall have any further obligations to the other relative to Lot #2 as a result of this Second Amendment. In the event rezoning is finally approved prior to notice of termination being given, Lot #2 shall automatically be added to and be considered a part of the "Property" for purposes of the Option, the Amendment and this Second Amendment. (b) Payments. Upon execution of this Second Amendment by all parties, (including, joinder by Deimler), Buyer shall deposit $50,000 with Seller's counsel, Nicholas & Foreman, as consideration for the grant of the option on Lot 12. The payment referenced in this Paragraph 2(b) shall be held by Seller's counsel in escrow. The escrowed option payment reference herein shall be released to Seller at such time as Seller has performed, and satisfied the following conditions: 2 (i) An initial Twenty Five Thousand ($25,000.00) Dollars payment shall be released to Seller when Seller and Deimler have executed and acknowledged (in the presence of a notary public) the existing Revised Preliminary Subdivision Plan for Mt. Zion Office Park prepared by H. Edward Black & Associates ("Black") dated July 24, 19971 as last revised September 19, 1997 approving of the proposed location of Valley Road through the Property, including the Retained Tract which is currently in the offices of Black and will be made available during business hours; and (ii) The balance of the $50,000.00 payment hereunder shall be made to Seller when Seller, at Seller's expense, has filed with Hampden Township the Subdivision Plan in accordance with Township's approval letter dated October 2, 1995, and has complied with the Township's requirements as set forth therein. Should the Township or any other governmental authority having jurisdiction impose further conditions, with respect to approval or recording of the Subdivision Plan, Buyer will, unless the same are due to the negligent or intentional misconduct of Seller or Deimler, be liable therefor. Such approval shall only be evidenced by the.recording of a fully-approved copy of said Plan in the Cumberland County Recorder of Deeds Office. In the event the Option as to Lot 12 is terminated pursuant to paragraph 2(a) hereof, all payments hereunder shall be applied as a credit to the purchase price of Lot A, effective as of the date it was delivered to Seller and the yearly amount due pursuant to paragraph 5 of the Option.shall remain at One Hundred Thousand ($100,000.00) Dollars. In the event that neither party terminates the Option as to Lot 12, then the yearly amount due pursuant to paragraph 5 of the Option shall increase to Two Hundred Thousand .L8200,000.00), but the payments-made pursuant this paragraph 2(b), Vogether with the Fifty Thousand ($50,000.00) Dollars paid to Seller on or about August 8, 1997, shall be applied to the payment next due from Buyer to Seller pursuant to the Option as amended tereby. . 3. The Retained Tract. In consideration of Seller's grant of option for the Retained Tract, Buyer agrees to pay to Seller an amount equal to Seller's actual documented expenses incurred in the development of the Retained Tract, not to exceed Thirteen Thousand ($13,000.00) Dollars. Upon the execution of this Amendment, Buyer shall pay the sum of Ten Thousand ($10,000.00) Dollars to Seller. To receive payment in excess of $10,000.00, Seller shall promptly thereafter submit an itemization of costs actually incurred in connection with Seller's development of the Retained Tract and paid invoices (or cancelled checks) evidencing payment of such costs to Buyer; Buyer shall reimburse Seller for the amount by which such documented costs exceed $10,000.00, within twenty (20) days of receipt and, if desired by Buyer, verification thereof, up to the maximum amount stated herein. Nothing contained in this paragraph 3 shall affect or alter the yearly payment due under the Option or the Amendment. 4. Inspection Period. Buyer shall have a period of ninety (g0) days from the date of the approval of the rezoning of Lot #2 to OP in which to conduct a feasibility study concerning the purchase of Lot 12, which may include, without limitation, environmental studies. Buyer will make all of its feasibility studies relating to the physical characteristics of Lot 12 (such as environmental studies, soil testing, traffic studies and the like) but not those studies dealing with financial or economic matters, available to Seller within a reasonable time following Buyer's receipt thereof. In the event Buyer determines on or before the end of the feasibility period that Buyer will not purchase Lot 12, upon notice to Seller, this Amendment shall be deemed terminated as if rezoning had not occurred and all provisions applicable to such a termination shall thereupon be effective. 5. Option Period /Expiration Date. Paragraph two (2) of the Option, shall be anLendedr' by adding a new subparagraph applicable to Lot No. 2 (only) as follows: With respect to Lot No. 2, Buyer shall have until July 23, 2003 within which to exercise the Option herein granted, (the "Expiration Date") unless extended by mutual agreement of the parties; provided however, in the event Seller shall extend Seller's underlying option on the Property (with Deimler), the Expiration Date as set forth herein shall, without further action of the parties, be extended for the same period of time. If the Option is exercised in year Seven (7), then the price per acre will be Forty Two Thousand ($42,000.00) Dollars. 6. Seller Cooperation. Provided Buyer has paid all costs and expenses which it has agreed to pay hereunder, Seller shall fully and promptly cooperate to the extent reasonably requested by Buyer in executing any documents reasonably required by Buyer to effectuate the terms of this Second Amendment and the option and to assist Buyer's development the Property, (including Seller's payment of Seller's costs and attorneys fees in connection therewith). 7. Memorandum of Option. The parties have executed and recorded a Memorandum of Real Estate Option Agreement (the "Memorandum") in the Cumberland County Recorder of Deeds 4 Office. Upon Buyer's payment to Seller's counsel, in escrow, as set forth herein, this Second Amendment may be recorded or, if requested, all parties hereto agree to execute an amendment to the Memorandum in recordable form setting forth such terms and conditions as are necessary to give notice of the provisions hereof; provided, however, that any amendment thereto shall be and remain subject to the provisions of Paragraph 32 of the option.. 8. Joinder. The parties acknowledge that the record owner of the Retained Tract is Eugene Deimler ("Deimler"). By his joinder herein, Deimler hereby consents to this Second Amendment and agrees to cooperate, as reasonably requested, in effectuating the terms and conditions hereof. If, for any reason, Deimler fails to consent or cooperate as herein provided, such failure may be deemed by Buyer to be a default and breach of the Option, the Amendment and this Second Amendment. 9. Remaining Provisions. Except as expressly amended by' this Second Amendment, all the terms and conditions of the option and the Amendment shall remain in full force and effect. 10. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original copy and all of which together shall constitute one agreement that shall be binding on all parties hereto. ,, r• 11. Telecovier. This Agreement may be executed by each party hereto on separate counterparts. When such executed counterparts have been exchanged by telecopier among all parties, this Agreement shall be delivered, binding, and in full force and effect. Thereafter, the parties will make good faith efforts to exchange original signed counterparts. IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment on the day and year first above written. BUYER: ATTEST: Mt. Zion Associates, L.P., by its sole general partner, Mt. Zion Associates, Inc. •L 2.1?i ?lac.L- IiC?C-t1?1.?- (SEAL) By: Imo /'??? T' othy C Harrison President 5 SELLER: COMMONWEALTH OF PENNSYLVANIA SS.: COUNTY OF ('71X On this, the day of October, 1997, before me, a Notary Public, the unders ned officer, personally appeared Timothy C. Harrison, who acknowledged himself to be the President of Mt. Zion Associates, Inc., a Pennsylvania corporation, and that he, as such President, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation himself as (Vice) President. IN WITNESS WHEREOF, I hereunto set my hand and official seal. ,- 4"e", /?? - an" No a Public -r- ?y My ommission Expires : X11 1f, (SEAL) Notarial Seal Loretta B. Ecker, Notary Public .0, Cumberland County' CamQ Hill Bo, my Commission Expires Nov. 9,1998 COMMONWEALTH OF PENNSYLVANIA : : SS.: COUNTY OF : ,*" On this,-the day of October, 1997, before me, a Notary Public, the undersigned officer, personally appeared John C. Harbilas, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. Notary Public my commission Expires: (SEAL) 7 JOINDER Eugene Deimler, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, joins in the foregoing Second Amendment to Real Estate Option Agreement for the purpose of evidencing his consent to the terms and conditions thereof in so far he has any interest in the Retained Tract (as defined herein) and agrees that any interest he has in the Retained Tract is an shall be subject to the rights and privileges of the Buyer, as set forth in the Option, the Amendment and this Second Amendment. IN WITNESS WHEREOF, Eugene Deimler, INTENDING TO BE LEGALLY BOUND HEREBY, has executed this Joinder this , 1997. day of COMMONWEALTH OF PENNSYLVANIA : COUNTY OF = SS.: On this, the '- day of October, 1997, before me, a Notary Public, the undersigned officer, personally appeared Eugene Deimler, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. Notary Public My Commission Expires: (SEAL) c:\wp5l\ksb\docunents\llmt,=iomleanOCtober 31, 1997 8 S ALIGLIST 2nn2 AM NDMENT M $FAL ESTATE OPTION AGREEMENT THIS AUGUST 2002 AMENDMENT TO REAL ESTATE OPTION AGREEMENT (the "August 2002 Amendment") is made this 12- day of August, 2002, by and between Mt. Zion Associates L.P., a Pennsylvania limited partnership, with its principal office at 20 Erford Road, Suite 201, Lemoyne, Pennsylvania 17043, or its nominee (the "Buyer") and John C. Harbilas and Kathryn M. Harbilas, husband and wife, of 817 Mandy Lane, Camp Hill, Pennsylvania 17011 (collectively referred to in this August 2002 Amendment, the option (as defined below), and in all prior amendments, the "Seller"). The background to this August 2002 Amendment is as follows: R-1. Pursuant to a certain Real Estate Option Agreement dated July 23, 1996 (the "Option"), Seller granted to Buyer an option to purchase certain property identified as Lot Number 1 ("Lot #1 ") on a Prelijninary/Final Subdivision Plan of Deimler Farm prepared by Act One Consultants, Inc. dated August 22, 1995, as amended, recorded in Cumberland County Plan Book 85, Page 103 (the "Subdivision Plan"). R-2. The parties negotiated an Amendment to Real Estate Option Agreement dated April $, 1997 (the "Amendment"), which Amendment was subsequently terminated, and is no longer effective. R-3. Pursuant to a Restated Second Amendment to Real Estate Option. Agreement dated October 31, 1.997 (the "Second Amendment'), the parties hereto reinstated the Option as to Lot #2 and amended the Option and the Amendment so that, among other things, the term "'Property', as defined in the Option and the Amendment included Lot #1, Lot #2 and the "Retained Tract," as defined in the Option, under the terms and conditions contained herein. R-4. By a Joinder to Real Estate Option dated December 12, 1997, Kathryn M. Harbilas joined in the Option, as amended. By virtue of such joinder, Kathryn M. Harbilas shall be included as a Seller wherever such term is used in the Option or any amendments thereto. R-5. By letter agreement dated July 18, 2002, Seller extended the exercise date of the Option, as to Lot No. 1, to August 22, 2002. R-6. Buyer has exercised its Option as to Lot No. 1, and Buyer and Seller agree that settlement has tentatively been scheduled for August 12, 2002, at, 2:00 p.m. at the offices of Wix, Wenger & Weidner, 508 North Second Street, Harrisburg, Pennsylvania 17101 (the "First Settlement'). R-7. When used in this August 2002 Amendment, the phrase "the Option, as amended" shall include the Option and all joinders and amendments identified in these recitals. R-8. The parties further desire to amend the Option, as amended, to modify the term of the Option, as amended, and make other changes set forth below. NOW THEREFORE, in consideration of the sum of $1.00 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and INTENDING TO BE LEGALLY BOUND HEREBY, the parties hereby agree to amend the Option, as amended, upon the following terms and conditions: 1. Recitals. The recitals set forth above are incorporated herein by reference as if set forth in full. 2. Option Period/Expiration Date. Paragraph 2 of the Option, as amended, is amended and restated in its entirety, as follows: ' 2. Option Period/Expiration Date. Buyer shall have until 11:59 p.m. on February 15, 2005 (the "Expiration Date") within which to exercise the Option herein granted, unless extended by written agreement between Seller and Buyer, or as hereinafter provided; provided, however, in the event Seller shall extend Seller's underlying option on the Property (with .Deimler), the Expiration Date as set forth herein shall, without further action of the parties, be extended for the same period of time. If the Option, as amended, is exercised, then the price per acre will be forty-one thousand ($41,000.00) dollars if the payment is made on or before the one (1) year anniversary date of this August 2002 Amendment, or forty-three thousand ($43,000.00) dollars per acre if made thereafter. 3. Payments. The following two sentences are added to the end of Paragraph 3 of the Option, as amended: Seller acknowledges that Buyer has, to date, paid Seller the sum of $1,000,000.00, which entitles Buyer to receive 29.72 acres of the Property. At the First Settlement, Buyer shall purchase the remaining acreage in Lot 1 for a purchase price of $40,000.00 per acre. 4. Property. Paragraph 4 of the Option, as amended, is amended and restated in its entirety, as follows: 4. Property. The Property shall include the Retained Tract, as defined in 2 the original Option, and all of Lot No. 2. When exercising the Option, if Buyer elects to purchase less than all of the Property, the minimum size of the parcel(s) shall, except as expressly herein provided, be twenty-two (22) acres and the parcel shall be contiguous to other land owned by Buyer; provided, however, that Buyer shall have the right to designate, layout and subdivide a parcel or parcels which do not meet such criteria to transfer and convey to (or exchange with) Hampden Township or an authority or other entity designated by Hampden Township; and provided further, if Buyer does not purchase all of the Property, Seller's remaining parcel must be no less than twenty (20) acres of contiguous real estate. 5. Notice and settlement. Paragraph 7 of the Option, as amended, is amended and restated in its entirety, as follows: 7. Notice and Settlement. In the event Buyer exercises the Option, the sole means of exercising the Option shall be by written notice, describing the Property (which shall be a separately subdivided parcel, unless subdivision has not occurred through a failure of Seller or Eugene R. Deimler, Sr.), sent by certified mail, return receipt requested, or by overnight delivery service requiring receipt (such as UPS, Federal Express or similar companies) postmarked prior to the Expiration Date, addressed to Seller as provided in Paragraph 26 of the Option, notifying Seller in writing of the exercise thereof and the time and place for settlement, which shall not be less than forty-five (45) days nor more than two (2) months after the date of said notice (or shall be held at such other time and place as the parties may agree upon in writing). Buyer shall have the right to subsequently.advance or delay the date of settlement by not more than fifteen (15) days either way, by notice in writing to Seller, provided that such adjustment shall not change the date when Seller must deliver possession to the Buyer. Buyer shall make payment of the purchase price for the portion of the Property then being purchased, as to which the Option is exercised, in full at settlement. No single exercise of the Option shall extinguish this Option, and the Buyer may exercise the same as to parcels of land subject to the Option on one or more occasions. 6. Covenants of Seller. Paragraph 10 (c) of the Option, as amended, is amended and restated in its entirety, as follows: (c) Seller will not take any actions or permit any inaction or omission which would create or assist in creating defects in title from the date hereof until the Expiration Date (or settlement, if the Option is exercised), or which would encumber the Property to an extent and upon such terms as would prevent Seller from performing this Agreement. No mortgages, monetary 3 encumbrances, or other liens or other objections to title not existing on the day of settlement on Lot No. 1 (immediately after the settlement) shall be permitted, and it shall be Seller's responsibility to discharge the same promptly after the entry thereof. Should Seller fail to discharge the same, Buyer may use Buyer's own funds to discharge the same and deduct Buyer's costs and expenses, including reasonable attorneys fees, from the purchase price due Seller at settlement, or may use a portion of the settlement proceeds due Seller for payment thereof. (d) In order to maintain the overall quality of Cumberland Technology Park, if Buyer does not purchase all of the Property, Seller will require and include, in any deed to Seller or its nominee or designee, portions of the Property, not purchased by Buyer to the Declaration of Protective Covenants for Cumberland Technology Park, recorded in Cumberland County Miscellaneous Book 595, Page 625, and Special Declaration of Restrictions and Covenants, recorded in Cumberland County - Miscellaneous Book 595, Page 658, which governs the development and use of the Property. The foregoing provision shall not bb applicable to Deimler, except in deeds to Seller. 7. covenants of uyer. A new Paragraph 11 (c) is added to the Option, as amended, as follows: (c) If Deimler has, prior to the exercise date of the Option by Seller, planted crops on any portion of the Property as to which Buyer has exercised, or in the future exercises, its Option (including, without limitation, Lot No. 1), and Deimler has not harvested the crops. at the time of settlement, and Buyer does not thereafter permit Deimler to harvest all or any portion of such crops, the Buyer will pay to Deimler, at settlement or within thirty (30) days following Buyer's material interference with Deimler's harvesting of such crops, the replacement value of such unharvested crops. The replacement value shall be determined by multiplying the acreage not harvested by the average crop yield (by bushel) per acre (for the season, in Central Pennsylvania) for the unharvested crop, by the average price per bushel for such crop on the business day nearest the day the harvest is stopped, as published in The Wall Street Joumal, less Deimler's cost savings for not having to harvest such crops. 8. Exercise of Option. Paragraphs 13 (e) and 13 (f) of the Option, as amended, are amended and restated in their entirety, as follows: (e) Posc anion. Possession of the portion of the Property being conveyed shall be given to Buyer immediately upon delivery of deed from 4 runless Buyer has exercised its right to advance the settlement ate by,;Up to 15 days) in which case Seller shall have a right of possession until the date contained in Buyer's original notice of exercise of the Option, as amended. Notwithstanding Buyer's right to possession, Buyer agrees that Deimler shall have the right, for a period of six (6) months following the settlement date on the portion(s) of the Property on which buildings are situated, to remove any and all such buildings as Deimler may elect, at no cost to Buyer; provided further, that as to buildings designated by the numbers 11 and 12 of Exhibit 1 hereto, incorporated herein by reference, Deimler shall have an additional two (2) months to remove them. Deimler shall not be required to remove any of the buildings, but, if Deimler elects to remove any buildings, any such removal shall be accomplished in accordance with the provisions of Paragraph 14(b) of the Option, as amended. Notwithstanding Deimler's right to remove the buildings, Buyer shall have the right to possession of the Property it acquires, and the right to construct utilities, streets, buildings and other improvements to,-upon or under the Property it acquires, all subject only to Deimler's license to remove the said buildings and to have reasonable access to the buildings for such purpose. Any buildings not removed within the applicable six (6) month or eight (8) month period shall, upon expiration of the applicable period, be and become the property of the Buyer, without further documentation or notice. Following settlement, Deimler shall continue to have the risk of loss for all of the buildings on the Property, and shall continue to maintain liability insurance with respect to his operations and removal of the buildings. Buyer shall have no duties with respect to such buildings other than not to unreasonably interfere with Deimler's removal of the-buildings permitted by this paragraph and to provide to Deimler reasonable access to the buildings. Deimler shall be liable to Buyer for any costs or expenses incurred by Buyer, including reasonable attorneys fees and court costs, incurred by Buyer as a consequence of any breach by Deimler of his obligations pursuant to this paragraph or the paragraphs referenced herein, or any other post settlement obligations Deimler may have to Buyer under this August 2002 Amendment or any other agreement between Deimler and Buyer, and Buyer shall be entitled to set off such amounts against any amounts owed by Buyer to Deimler. If requested by Buyer, Deimler will enter into a license agreement at the settlement further defining the rights of the parties. In the absence of such a license agreement, this paragraph and those other paragraphs referenced in it shall survive settlement and closing, and control the rights of the parties with respect thereto. (f) Qlosing of Transaction. Closing (or settlement) on this transaction shall be as and when provided in Buyer's notice to Seller of Buyer's election 5 to exercise the Option, but closing shall not occur until Buyer has caused to be recorded a duly approved subdivision plan for the portion of the Property being purchased; provided, however, that a refusal by Deimler or Seller to execute the required Subdivision Plan or to otherwise perform any of their duties hereunder shall, at Buyer's option, extend the Settlement Date, and shall entitle Buyer to damages therefor. 9. Oondition of he Property. Paragraph 14 of the Option, as amended, is amended and restated in its entirety, as follows: 14, •rondition of the ProRefic. Neither Deimler nor Seller shall, during the term of this Agreement, exercise either of their rights of ownership so as to interfere with or alter the condition of the Property as it exists on the date hereof; except that Deimler may: (a) continue to farm the Property, using commercially acceptable farming practices in compliance with all applicable laws, ordinances, rules, and regulations ("Applicable Laws"). ' (b) remove any and all"buildings on the Property, without compensation to Seller, provided that following such removal, all construction materials, debris, equipment and other remnants thereof, excluding, however, any foundations and concrete floors, are removed in compliance with all Applicable Laws, and the site of such buildings are left in broom clean condition, with all wells properly capped (but not filled). .......... 10. [yJt-- morand?m of O tp ion. The parties have executed and recorded a Memorandum of Real Estate Option Agreement (the "Memorandum") in the Cumberland County Recorder of Deeds Office. All parties hereto agree to execute an amendment to the Memorandum in recordable form setting forth such terms and conditions as are necessary to give notice of the provisions hereof; provided, however, that any amendment thereto-shall be and remain subject to the provisions of Paragraph 32 of the Option, as amended. 11. Fme_rgency Access Easement. Seller and Deimler, by Deimler's joinder, agree to execute an emergency access easement (for police, fire, ambulance and other emergency vehicles or services) over and across Deimler Lane in form and substance satisfactory to Hampden Township, in order to permit Buyer to construct Technology Parkway to a temporary cul-de-sac ending approximately 275 feet east of Good Hope Road, all as shown on a Preliminary/Final Subdivision Plan of Lot No. 9, Cumberland Technology Park, prepared for Buyer by H. Edward Black and Associates, a copy of which has been delivered to Seller and Deimler. The 6 easement shall provide that when Buyer has obtained a highway occupancy permit from the Pennsylvania Department of Transportation for the connection of Technology Parkway with Good Hope Road substantially in the location shown on the aforesaid Lot 9 Subdivision Plan, and has completed a connection between existing Deimler Lane and Technology Parkway (said connection to be of the same construction materials and to the same specifications as existing Deimler Lane, or better (if Buyer so elects), in a location approved by Deimler, such approval not to be unreasonably withheld or delayed), the Seller and Deimler will abandon existing Deimler Lane from its current intersection with Good Hope Road to its intersection with the newly constructed connection to Technology Parkway. 12, inder.-The parties acknowledge that the record owner of the Property is Eugene R. Deimler, Sr. or a trust owned and controlled solely by Eugene R. Deimler, Sr. ("Deimler"). By his and its joinder herein, Deimler hereby consents to this August 2002 Amendment and agrees to cooperate, as reasonably requested, in effectuating the terms and conditions hereof. If, for any reason, Deimler fails to consent or cooperate as herein provided, such failure may be deemed by Buyer to be a default and breach of the Option, as amended. The Joinder shall create a contractual relationship only, and shall not be construed as, nor create, a partnership, joint venture, or any similar relationship. 13. syPr Subdivision. Seller shall have the right to subdivide the Property, at Seller's sole cost and expense, during the term of this Option; provided, however, that any such subdivision shall be plotted to follow Buyer's then existing sketch plan therefor. If Seller elects to exercise Seller's option with Deimler and to acquire feet simple title, Seller shall acquire parcels of the Property in the order established by Buyer`s then current phasing plan.. Any such subdivision plan(s) shall be subject to Buyer's approval, which shall not be unreasonably withheld. 14. R mainina Provisions. Except as expressly amended by this August 2002 Amendment, all the terms and conditions of the Option, as amended, shall remain in full force and effect. 15. Qnunterparts. This August 2002 Amendment may be executed in counterparts, each of which shall be deemed an original copy and all of which together shall constitute one August 2002 Amendment that shall be binding on all parties hereto. 16. T.• This August 2002 Amendment may be executed by each party hereto on separate counterparts. When such executed counterparts have been exchanged by telecopier among all parties, this August 2002 Amendment shall be delivered, binding, and in full force and effect. Thereafter, the parties will make good faith efforts to exchange original signed counterparts. 7 IN WITNESS WHEREOF, the parties hereto have executed this August 2002 Amendment on the day and year first above written. BUYER: WITNESS: Mt. Zion Associates L.P., by its sole general partner, Mt. Zion Associates, Inc. ow a4&4'tM_ A@e WITNESS: By: f? 6 r- Ai T /ELL R: John C. Harbilas ` Kathryn M. Harbilas F.•Idawl3485 - ELYSIAN PARTNERS LP18809 -MT, ZIOMDocum"lAugust 2002 Amendment doc 8112102 2:49 PM 8 VERIFICATION Subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities, I hereby certify that the facts set forth in the foregoing document are true and correct to the best of my information and belief. Dated: 2 6 ??0 4 FS C • lr ? John C. Harbilas 1- 9 d f `- d ?, V 1 David E. Lehman I.D. No. 15243 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 (717) 260-1716 JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs V. MT. ZION ASSOCIATES, L.P., Defendant, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-1936 CIVIL TERM IN EQUITY AND FOR DECLARATORY JUDGMENT AMENDMENT TO COMPLAINT Plaintiffs' Complaint, as filed March 27, 2008, is amended, as follows: In paragraph 29, to change the Exhibit reference to "Exhibit 6," and, to attach the document identified as "Exhibit 6," a letter of February 14, 2005. McNEES ALLACE & NURIC LLC By David E. Lehman I.D. No. 15243 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5285 (717) 260-1716 Attorneys for Plaintiffs John C. and Kathryn M. Harbilas Dated: April %0, 2008 Y"IAN Mr. and Mrs. John C. Harbilas 817 Mandy Lane Camp Hill, PA 17011 20 Erford Road -,Suite 10 - Lemoyne, PA 17043 -p. Ph: (717) 303-1800 Fax: (717) 730-0500 February 14, 2005 VIA FEDERAL EXPRESS & CERTIFIED MAIL Direct Dial (717) 303-1800x802 RE: Real Estate Option Agreement dated July 23, 1996, as amended (the "Option Agreement"), between John C. Harbilas and Kathryn M. Harbilas (collectively, "Harbilas") and NIt. Zion Associates L.P. ("Mt. Zion") Dear Mr. and Mrs. Harbilas: Pursuant to Paragraph 7 of the above-captioned Option Agreement, you are hereby notified that Mt. Zion is exercising its option rights under the Option Agreement with respect to real property comprising a portion of Lot #2 (as defined in the Option Agreement) containing approximately 23.31 acres designated as Lot 1A ("Lot lA") on that certain Preliminary/ Final Subdivision For The Deimler Farm dated January 28, 2005 prepared by H. Edward Black and Associates, P.C. (the "Subdivision Plan"). The Subdivision Plan was delivered to you on January 31, 2005. Settlement on Mt. Zion's purchase of Lot IA shall take place at 10:00 a.m. on April 14, 2005, at the office of Mt. Zion's Counsel, Dean Weidner of Wix Wenger & Weidner, 508 North Second Street, Harrisburg, Pennsylvania. Lot IA shall be a separately subdivided parcel, but that requirement is expressly contingent on Harbilas and Eugene Deimler, Sr, as Trustee for The Deimler Sr. Trust ("Deimler") honoring their respective obligations under the Option Agreement with respect to the execution of and cooperation with obtaining approval of the Subdivision Plan. As you know, during the summer and fall of 2004, representatives of Mt. Zion held a series of meetings with you (and in some cases your representatives) to negotiate an extension of Mt. Zion's option and, at your request, to discuss the parcel as to which Mt. Zion intended to exercise its option. A plan showing the parcel which Mt. Zion desired to acquire was delivered on November 18, 2004. phis plan depicted contiguous parcels and abutting roadway which followed the lot lines depicted on the Revised Preliminary Subdivision Plan for Cumberland Technology Park dated August 15, 2002 and filed with Hampden Township (the "Preliminary Subdivision Plan"). Following that meeting, to address concerns raised by Harbilas and in accordance with its rights under the Option Agreement, Mt. Zion increased the size of the parcel it intended to acquire by adding Lot 27 as depicted on the Preliminary Subdivision Plan and on December 16, 2004, delivered to your attorney a proposed subdivision plan dated December 13, 2004. You met with your engineers, and some 25 days later (on January 7, 2005), through your attorney, presented a list of ten comments to the plan, mostly objections. Dean Weidner's letter of January 10, 2005 (copy enclosed) responded to those objections and the comments in his letter that are applicable to the current plan, including, without limitation, paragraphs b-f (inclusive), h and I, are specifically incorporated into this notice. Mt. Zion again revised the plan to address your comments, and on January 17, 2005, submitted a revised plan (dated January 13, 2005) to you. Through your attorney, three days later, you presented a list of comments to this plan. Again, the comments were all objections to the plan, and virtually all of these objections would have been equally applicable to the December 13, 2004 plan. You, your engineer and your attorney simply elected not to tell Mt. Zion of those objections until it was too late to make revisions and submit the subdivision plan to Hampden Township for consideration and action in February of 2005. As an accommodation, Mt. Zion further revised the plan to address all objections that you were arguably entitled to raise, and submitted the subdivision plan dated January 28, 2005 to you on January 31, 2005. You have still not consented to that plan, nor have you notified Mt. Zion of any objections to such plan. For reasons fully explained in prior correspondence from our attorneys, Wix, Wenger & Weidner, to your attorney, Bruce Foreman, Mt. Zion is not obligated to submit a subdivision plan to Hampden Township until you have both (i) consented to it; and (ii) signed it, to evidence your consent to it. We note the following failures to cooperate with Mt. Zion, including, without limitation: (1) The wrongful failure and refusal of Deimler to both sign and consent to the December 13, 2004 subdivision plan. (2) The wrongful failure and refusal of Deimler to both sign and consent to the January 13, 2005 revised subdivision plan. (3) The wrongful failure and refusal of Deimler to both sign and consent to the January 28, 2005 subdivision plan. (4) The delays of Deimler in communicating the conditions upon which consent to any of the aforesaid subdivision plans would be approved. (5) The wrongful failure and refusal of Harbilas to consent to the December 13, 2004 subdivision plan. (b) The wrongful failure and refusal of Harbilas to consent to the January 13, 2005 revised subdivision plan. (7) The wrongful failure and refusal of Harbilas to provide all objections to the December 13, 2004 subdivision plan in a timely manner. (8) The wrongful failure and refusal of Harbilas to consent to the January 28, 2005 subdivision plan. (9) The wrongful failure and refusal of Harbilas to execute each of the aforesaid plans. (10) The wrongful failure and refusal of Harbilas to cooperate (for the reasons set forth in this letter and prior correspondence from our counsel), contrary to your express contractual obligations. The foregoing failures, and others, have prevented Mt. Zion from filing and securing subdivision approval of a separate parcel to which you have consented. As Mt. Zion has repeatedly stated, it has no obligation to file a subdivision plan until Harbilas and Deimler have consented to it. In fact, consent to and plan signatures are required no later than February 16, 2005 for the settlement date noticed herein to be attained. This exercise of the Option by Mt. Zion is without prejudice to any rights of Mt. Zion pursuant to the Option Agreement or otherwise at law, including, without limitation (1) Mt. Zion's right to extend the settlement date as specifically provided in the Option Agreement; (ii) to any rights Mt. Zion may have at law or in equity against you or Deimler as a consequence of your respective failures to honor your obligations to Mt. Zion under the Option Agreement, including, without limitation, the rights to extend settlement and to damages; and (iii) any extension of the Option Agreement or settlement, or other rights which Mt. Zion may have, as a consequence of agreements between you and Deimler which are unknown to Mt. Zion. Very truly yours, MT. ZION ASSOCIATES, L.P. By: Mt. Zion Associates, Inc., Alan P. Garubba Vice President /jsk cc: Bruce D. Foreman, Esq. (via telecopier and Federal Express) Dean A. Weidner (via telecopier) F:\daw\3485 - ELYSIAN PARTNERS L.P\8809 - MT. ZION\Letters\Exerdse Letter.doc 2/14/05 2:27 PM CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail upon the following: Dean A. Weidner, Esquire Wix, Wenger & Weidner 508 North Second Street PO Box 845 Harrisburg, PA 17108 David E. Lehman Dated: April /0 , 2008 Attorneys for Plaintiffs ,...> ? ._ ;:'''i ...rz .._ ? m ? t ., . - ;r;7 ..__ , ,. _. . __. . , _?:t s*.3 _ .. _?_ ? c?? ? ?' C; , -C JOHN C. HARBILAS and ) KATHRYN M. HARBILAS, ) Plaintiffs ) V. ) MT. ZION ASSOCIATES, L.P., ) Defendant ) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-1936 Civil Term IN EQUITY AND FOR DECLARATORY JUDGMENT ACCEPTANCE OF SERVICE hereby accept service of the Complaint in the above matter on behalf of Mt. Zion Associates, L.P. Please enter my appearance as counsel for Defendant. WIX, WENGER & WEIDNER ? Cr u By_ Dean A. Weidner Attorney ID No. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108 (717) 234-4182 (717) 234-4224 (fax) Dated: May /, 2008 cz? m vi Wix, Wenger & Weidner Dean A. Weidner, I.D. #06363 dweidner@wwwpalaw.com Jeffrey C. Clark, I.D. # 89277 jclark@wwwpalaw.com 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Defendant JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs V. MT. ZION ASSOCIATES L.P., Defendant !fit r? n -. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No. 08-1936 Cis it Term IN EQUITY AND FOR DECLARATOR" JUDGEMENT NOTICE TO PLEAD To: John C. Harbilas and Kathryn M. Harbilas, by and through their attorneys, David E. Lehman, Esquire, and McNees Wallace & Nurick, LLC, 100 Pine Street, P.O. Box 1166, Harrisburg, PA 17108-1166. You are hereby notified to file a written response to the enclosed New Matter and Counterclaim within twenty (20) days from service hereof o, a judgment may be entered against you. Respectfull,i Submitted, Date: .,? ?Gv(, 3 Z r? 1 1 WIX, WENGER & WEI NER J By: Dean A. Weidner, I.D. #06363 Jeffrey G. Clark, I.D. # 89277 508 Nor h Second Street P.O. Box, 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Defendant Mt. Zion Associates L.P. JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs V. MT. ZION ASSOCIATES L.P., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No. 08-1936 Civil Term IN EQUITY AND FOR DECLARATORY JUDGEMENT ANSWER TO COMPLAINT IN EQUITY AND FOR DECLARATORY JUDGMENT WITH NEW MATTER AND COUNTERCLAIM AND NOW comes Defendant, Mt. Zion Associates L.P., a Pennsylvania limited partnership, by its undersigned attorneys, Wix, Wenger & Weidner, and files this Answer to Complaint in Equity and for Declaratory Judgment with New Matter and Counterclaim, stating as follows: 1. Admitted (as in the Complaint, Plaintiffs John C. Harbilas and Kathryn M. Harbilas are sometimes hereinafter referred to in thE! singular and masculine form). 2. Admitted in part and denied in part. Mt. Zion Associates L.P. ("Mt. Zion") did, at the time of filing the Complaint, maintain an office at 20 Erford Road, Suite 10, Lemoyne, Pennsylvania 17043. Mt. Zion's current address is 508 North Second Street, Harrisburg, Pennsylvania 17101. 3. Admitted in part and denied in part. All averments o1 Paragraph 3 are admitted as stated. However, due to Harbilas' "unclean hands" and other matters set forth in the New Matter and Counterclaim (below), Mt. Zion denies that Harbilas has a right to have this Court determine any matters in favor of Harbilas. 4. Admitted in part and denied in part. Harbilas' equitable ownership did not derive from the Real Estate Option Agreement dated Janua y 7, 1997 between Deimler 1 c i and John C. Harbilas (sometimes referred to as the Deimler/Harbilas Option) (Complaint Exhibit 1), but from the Agreement for the Sale of Real Estate dated December 9, 1994 (Complaint Exhibit 2). It is admitted that Harbilas was, at the time of filing, the equitable owner of the subject property. However, since the Complaint was filed, Harbilas acquired legal title to :he property by virtue of a deed discussed more fully in Mt. Zion's New Matter which deed violated Harbilas' contractual duties to Mt. Zion. A copy of the deed is attached hereto as Exhibit A, incorporated herein by reference. 5. Denied. Mt. Zion is without knowledge as to the trulh of the averments of Paragraph 5 and proof thereof is demanded. 6. Denied as stated. At no time did Harbilas enter into any agreements with Mt. Zion pertaining to Mt. Zion's plans for development of an office park, and Harbilas was never a participant in designing or formulating any of Mt. Zion's plans for development of an office park on the prope rty being purchased from Harbilas. Mt. Zion, did, in fact, enter into a Real Estate Option Agreement dated July 2:3, 1996, (Complaint Exhibit 3), with Harbilas (;3ometimes referred to herein as the "Original Option"); and the parties amended the Real Estate Option Agreement on several occasions (the Real Estate Option Agreement, as amended, is referred to in this Answer as the "Option") 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 2 11. Denied as stated. Mt. Zion undertook all steps and activities which were necessary to permit it to exercise its rights prior to t-ie "expiration date" set forth in the August 2002 Amendment. However, Harbila:> actively and affirmatively took steps to frustrate Mt. Zion's ability to exercise ins option, including concealment of Harbilas' entry into an agreement with Deimler to extend the settlement date in the Deimler/Harbilas agreement by three (3) years (which would have automatically extended Mt. Zion's settlement date) and contact with Hampden Township officials to interfere with Mt. Zicn's subdivision plan approval process, all as more fully appears below in this Answer, and in the New Matter and Counterclaim hereinafter set forth. 12. Admitted in part and denied in part. The August 2002 Amendment (Complaint Exhibit 5) did provide for an expiration date of the Option at 11:59 p.m. on February 15, 2005; however, the provisions of the aloresaid paragraph also provided for an automatic extension in the event Harbilas secured an extension of his closing date with Deimler. Harbilas did, in fact, enter into an Agreement for the Sale of Real Estate dated December 9, 2004, a copy of which is attached hereto as Exhibit B, incorporated herein by reference, for the purpose, inter alia, of extending the Harbilas/Deimler settlement date by three (3) years; but Harbilas actively concealed such extension from Mt. Zion. 13. Admitted in part and denied in part. It is admitted that Mt. Zion exercised its option under the August 2002 Amendment with respoct to a 23.31 acre portion of Lot No. 2. Notwithstanding Mt. Zion's proper exercis,: of the Option, Harbilas initially, untruthfully and in bad faith, denied receiving the notice. See Bruce Foreman letter of March 3, 2005, Exhibit C attached hereto, incorporated herein 3 by reference. When Federal Express records were provided to show that the notice had been received and signed for by "K. Har3ilas," Harbilas improperly and in bad faith expanded the grounds for rejecting the notice, asserting that the notice was not effective because the subdivision plain did not comply with the Hampden Township Ordinance (subsequently approved by the Township) and with the Option (patently untrue). See Bruce Forerr an letter of March 3, 2005, Exhibit D attached hereto, incorporated herein by reference. 14. Denied. Paragraph 14 states a conclusion of law a:; to which no response is necessary. However, to the extent an answer is rec uired, all averments of fact are denied and, if relevant, proof thereof is demanded. 15. Denied. While approval of a subdivision plan showing the property to be conveyed pursuant to the Option may have been a condition to closing, it was not a condition to Mt. Zion's effectively exercising its rights under the August 2002 Amendment. Indeed, the only reason Mt. Zion was unable to have an approved subdivision plan was because of the failure of Harbilas, the then equitable owner, and Deimler, the legal owner, to sign the subdivision plan, contrary to an affirmative duty of cooperation contained in the Option. In particular, Paragraph 6 of the Restated Second Amendment to Real Estate: Option Agreement (Complaint Exhibit 4) provides in relevant part: "...S -3Iler shall fully and promptly cooperate to the extent reasonably requested by Bu)/er in executing any documents reasonably required by Buyer to effectuate the terms of this Second Amendment and the Option and to assist Buyer's development [of] the Property..." Furthermore, notwithstanding the fact that the subdivision plan had not been approved by Hampden Township on February 14, 2005, when Mt. Zion 4 exercised the Option, the subdivision plan was sub:;equently approved. However, it was never recorded (and Mt. Zion ceased efforts to have it recorded) because Harbilas and Deimler never agreed to exe(;ute the subdivision plan, notwithstanding Harbilas' aforesaid contractual obligation to execute the same. The Township's approval therefore expired on June 1, 2007. 16. Denied. Exhibit 6 to the Complaint (Mt. Zion's February 14, 2005 notice exercising of the Option) sets forth in detail a number of Harbilas' attempts to obstruct the exercise of the Option and lists no less than six ways in which Harbilas refused to cooperate with Mt. Zion, as required by the Option. Furthermore, following the date of Exhibit 6, Harbilas continued to obstruct Mt. Zion by contacting Township officials (directly and through his engineers) and making adverse comments with respect to the subdivision plan (See New Matter). 17. Denied. The positions taken by Harbilas with respect to the proposed subdivision plan, including an assertion that Mt. Zior was required to construct roads to the borders of the residual Harbilas land anJ to construct utilities to those borders, were not supported by any reasonable interpretation of the Option. In accordance with its obligations pursuant to the Option, Mt. Zion had agreed to provide to Harbilas (as shown on the subdivision plan) a street right-of- way to his property and a right-of-way for connecting utilities. Beyond providing the foregoing, there was no "required coordination of development activities (particularly road extensions and utilities) between tracts to be acquired by Mt. Zion and tracts to be retained by Harbilas," as asserted in the Complaint. Harbilas unfairly, without justification, and in violation of his contractual 5 obligations, insisted on benefits to his residual land to which Harbilas was not entitled. 18. Denied. The "Agreement to Grant Real Property" between Mt. Zion and Hampden Township obligated Mt. Zion to convey such four acres to the Township, if (i) it acquired the entirety of Lot No. 2 (,approximately 104 acres), and (ii) was therefore able to convey four acres to F- ampden Township. Because Harbilas improperly asserted to Hampden Township officials that the Option had expired and Mt. Zion could not convey the four acre 3, and because the Township needed the four acre parcel earlier than anticipated, the Township asked Mt. Zion to convey the property prior to acquiring the balance of Lot No. 2. Notwithstanding the fact that Mt. Zion had no legal obligation to convey the land, Mt. Zion did, in fact, cause Deimler and Harbilas to convey the land by making payment to Harbilas of over $175,000.00 to secure a deed. 19. Denied. The answer in Paragraph 18 above is incorporated herein by reference. 20. Denied. The Option does not require "the reasonable coordination of Mt. Zion's proposed subdivision and land development plans with the future development needs of the residual tract" as alleged by Harbilas. The August 2002 Amendment (Complaint Exhibit 5) provides in relevant part in Paragraph 4, a statement of Mt. Zion's (Buyer's) obligations, as follo'NS: When exercising the Option, if Buyer elects to purchase less than all of the Property, the minimum size of the parcel(s) shall, except as expressly herein provided, be twenty-two (22) acres and the parcel shall be contiguous to other land owned by Buyer; provided, however, that Buyer shall have the right to designate, layout and subdivide a parcel or parcels which do not meet such criteria to transfer and convey to (or exchange with) Hampden Township or an authority or other entity designated by Hampden Township; and provided further, if Bayer does not purchase all of the Property, Seller's remaining parcel must be no less than 20 acres of contiguous real estate. 6 The foregoing provision supersedes earlier version: of Paragraph 4 and provides exclusive control in the Buyer; further, it simply reqL Tres that the parcel be no less than 22 acres and contiguous to other property of Mt. Zion. It does not require "reasonable coordination of Mt. Zion's proposed development with the future development needs of the residual tract" which, in any event, would not include physically constructing streets and utilities to the residual parcel, as asserted by Harbilas. 21. Denied. The averments of Paragraphs 18 and 20 o' the Answer are incorporated herein by reference. Further, as Harbilas refused to acknowledge Mt. Zion's proper exercise of the Option, the fact that Mt. Zion 'Nas unable to secure subdivision approval until after the April 14, 2005 closing date required by the Option, cannot be relied upon by Harbilas as a reason for Harbilas' breach of the Option and failure to perform. 22.Admitted in part and denied in part. The subdivision plan was approved by the Hampden Township Commissioners at their meetinc of June 6, 2006. Copies of revised plans had been provided to Harbilas in Janu -3ry or February of 2006, in anticipation of such approval. At the time of the subdivision plan approval, Mt. Zion and Harbilas had been in several meetings with the Township, jointly, where approval of the subdivision plan was discussed, as well as filing a new subdivision plan for conveyance of the four acre tract to the Township, so Harbilas was aware that objections of the Township to the subdivision plan had been resolved. Nevertheless, the last written communication of Harbilas to Mt. Zion with regard to its exercise of the Option was a letter from his then counsel, Susan Smith, dated April 13, 2005, attached hereto ?is Exhibit E, incorporated 7 herein by reference, which contains a condition not required or even permitted by the Option (i.e., termination of Mt. Zion's lis pendens which was then applicable to Mt. Zion's stated position that the Option had beE!n extended for three (3) years), which condition was not acceptable to Mt. Z on. Harbilas knew that the subdivision plan had been approved, and never communicated a willingness to sign the plan or to proceed with a settlement in accordance with the terms of the Option (and without conditions). 23. Denied. For the reasons set forth in Paragraph 17 and Paragraph 22 of this Answer, as well as for the reasons set forth in the New Matter and Counterclaim, Harbilas has neither performed nor reasonably complied with the obligations called for under his agreements with Mt. Zion. To tre contrary, he has made unreasonable demands, inconsistent with his duties of cooperation set forth in the Option, and otherwise acted to frustrate Mt. Zion's performance of the Option. 24. Admitted in part and denied in part. It is denied that Mt. Zion was not in a proper and enforceable position to enforce its rights under the Option. It is admitted that Mt. Zion commenced the action referenced in Parag 'aph 24. 25. Denied. By the time it filed the lis pendens Mt. Zion nad been advised that Harbilas had entered into an agreement with Deimle which was an amendment to the Harbilas/Deimler option, which extended the settlement date between Deimler and Harbilas for a period of three (3) years, :hereby automatically extending Mt. Zion's settlement date. Harbilas has never acknowledged Mt. Zion's right to a three (3) year extension of the settlement date. Accordingly, Mt. Zion should have three (3) years from the date of this Court's Order to exercise its Option as to the Harbilas residual property; and the entire residual property is 8 subject to a Declaration of Protective Covenants foi- Cumberland Technology Park (See Paragraph 33(a) below). Therefore Mt. 'ion had and has rights with respect to the entire residual property. 26. Admitted. COUNT I Claim for Declaratory Relief 27. The answers set forth in Paragraphs 1 through 26 above are incorporated herein by reference as though set forth at length. 28. Denied. Paragraph 28 states a conclusion of law a: to which no response is required. However, to the extent an answer is required, Mt. Zion is entitled to a three (3) year extension of the Option on the entire Harbilas tract from the date of this Court's Order and to a reasonable period of tiM to pursue reapproval of the subdivision plan for the 23.31 acres as to which it exercised its option, and to settlement thereon pursuant to the Option. 29. Denied. Paragraph 29 states a conclusion of law as to which no response is required. WHEREFORE, Mt. Zion respectfully requests the Court to enter judgment and decree that Mt. Zion has the right pursuant to the Option to purchase the 23.31 acre tract of ground, and to purchase the remainder of the residual property pursuant to the Option for a period of three (3) years following this Court's Order. In the alternative, Mt. Zion respectfully requests the Court to enter an Order subjecting the property to all obligations of Harbilas pursuant to the Original Option (as amended by, among other documents, the Restated Second Amendment and the August 2002 Amendment), including, without limitation, the obligation to subject the Harbilas residual property to 9 the Declaration of Restrictive Covenants referenced in the August 2002 Amendment (more fully discussed in Paragraph 33(a) of this Answer and Mt. Zion's New Matter). Count II 30. The answers in Paragraphs 1 through 29 above are incorporated herein by reference as though set forth at length. 31. Denied. For the reasons set forth in the New Matte including, without limitation, Harbilas' failure to have "clean hands" and absence of good faith, Mt. Zion requests the Court to deny the relief requested by Harbilas. 32. The answers to Paragraphs 1 through 31 above are incorporated herein by reference as though set forth at length. 33. Denied. The Court should not award the relief reque.sted by Harbilas in Paragraph 33 for the following reasons: a. As a specific term of the August 2002 Amendment, and because of the likelihood that access to and from Harbilas' residual ground would be, in part, through Cumberland Technology Park, thereby implying to the public that the development of Harbilas' residual ground would be an extension of Cumberland Technology Park, Mt. Zion negotiated to have any residual ground which it did not purchase made subject to a Declaration of Protective Covenants for Cumberland Technc logy Park (see Paragraph 6(d) of the August 2002 Amendment, Exhibit!-) to the Complaint). Pursuant to the August 2002 Amendment, Harbilas agreed that any deed to Harbilas or its nominee would subject the p,operty to the aforesaid Declaration of Protective Covenants for Cumberland Technology Park. Nevertheless, despite written demand by Mt. -e'_ion prior to the closing that 10 the deed to Harbilas include the aforesaid restriction, the deed from Deimler to Harbilas (Exhibit A hereto) does rot, in fact, include it. It would be unfair and contrary to equity to require Mt. Zion to provide access to the Harbilas residual ground through its property, thereby imposing a duty under the Option on Mt. Zion, but to invalidate the corresponding obligation of Harbilas to subject the residual property to the Declaration of Protective Covenants. This result, sought by Harbilas, would provide to him the benefits of the Option, but deny to M1. Zion the corresponding benefits for which it negotiated. b. For the reasons set forth in Mt. Zion's New Matter, including, without limitation, Harbilas' unclean hands and lache:;, this Court should deny the relief requested by Harbilas. 34. Denied. For the reasons set forth in Mt. Zion's New Matter, Harbilas is not entitled to the relief sought in Paragraph 34. Furthermore, as is set forth in this Answer and Mt. Zion's Counterclaim, Mt. Zion has continuing rights pursuant to the Option to the entire tract of residual ground own0d by Harbilas. 35. Denied. The answer to Paragraph 33 is incorporated herein by reference. WHEREFORE, Defendant requests the Court to dismiss the requested declaratory relief, to recognize Mt. Zion's continuing rights i i the residual property, and to recognize Harbilas' continuing duties pursuant to the Option, together with such other and further relief as the Court deems necessary or appropriate. 11 NEW MATTER Unclean Hands (Concealment of Real Estate License 36. Paragraphs 1 through 35 hereof, together with the Exhibits of the Complaint and the exhibits to this Answer with New Matter and Counterclaim, are incorporated herein by reference as if fully set forth herein. 37. The original Option between Mt. Zion and John C. Farbilas (alone) was entered into on July 23, 1996 (Complaint Exhibit 3). 38. At the time of signing the original Option (on or about July 23, 1996), Harbilas represented to Mt. Zion, in Paragraph R-2 of the Option, that Harbilas was the "...Owner or Beneficial Owner under a valid agreement of sale or option agreement of the Deimler Farm..." 39. Harbilas' right to enter into the Option was governed by a series of documents, the first of which was an Agreement for the Sale of Real Estate between Deimler and Harbilas, dated March 15, 1988, which was recorded in the Cumberland County Recorder of Deeds Office in Miscellaneous Book 349, Page 1085. This agreement provided that Harbilas was to pay Deimler $20,000.00 per acre, but did not require a settlement until ten (10) years thereafter. A copy of this agreement is attached hereto as Exhibit F, incorporated herein by reference (the "March 15, 1988 Sales Contract") 40. Mt. Zion subsequently discovered (in 1997) that the March 15, 1988 Sales Agreement had been amended by an Assignment dated October 21, 1991, also recorded, but incorrectly indexed, in the Cumberland County Recorder of Deeds 12 Office in Miscellaneous Book 406, Page 249. A copy of the Assignment is attached hereto as Exhibit G, incorporated herein bar reference. 41. The March 15, 1988 Sales Agreement, as assigned, was amended by a Second Addendum to Agreement for the Sale of Real Estate dated March 15, 1988 between Eugene Deimler and John Harbilas, which Second Addendum was dated June 29, 1995 and is recorded in Cumberland County Miscellaneous Book 500, Page 728. A copy of the Second Addendum iE attached hereto as Exhibit H, incorporated herein by reference. 42. Mt. Zion believes, and therefore avers, that when this March 15, 1988 Agreement for the Sale of Real Estate was signed (on May 10, 1988) and/or when the Second Addendum thereto was signed, on or about June 29, 1995, John C. Harbilas was a licensed real estate agent in the Commonwealth of Pennsylvania, having acquired his license in September of 1979. Nevertheless, contrary to the requirements of the regulations issued pursuant to Pennsylvania's then Real Estate Licensing Act, John C. Harbilas failed to disclose, in writing, to Eugene Deimler that he was a licensed real estate agent acting for profit. 43. The failure of Harbilas to include the foregoing disclc,sure in the March 15, 1988 Sales ,Agreement and/or in the Second Addendum rondered the agreement voidable by Eugene Deimler, thereby jeopardizing the contract with Mt. Zion (potentially rendering it voidable). (Concealment of Kathryn Harbilas Aspi nment 44.As noted in Paragraph 38 above, John C. Harbilas alone represented that he "is the Owner or Beneficial Owner under a valid agreement of sale or option agreement of 13 the Deimler Farm...," without reference to and concealing his wife's co-ownership interest (see Assignment referenced in Paragraph z-0 of this New Matter). 45. Pursuant to the Original Option, Mt. Zion had the right to purchase the 62 Acre Tract from John C. Harbilas (alone) for a consideration which began at a price of $30,000.00 per acre during the first year after exeCUtion of the Original Option, which increased by $2,000.00 per acre per year for the next five years (for a total of six years). In other words, if Mt. Zion purchased the property in 2002, then the option price would be $40,000.00 per acre, or two times th : amount which Harbilas was obligated to pay Deimler. 46. Pursuant to an Amendment to Real Estate Option Agreement dated April 8, 1997, Mt. Zion was authorized to secure, at its own ,expense, a rezoning of the 104 Acre Tract to O-P. Such rezoning was to have occurred within four months from April 8, 1997. 47. Mt. Zion pursued and initiated the rezoning, but was not able to accomplish the same within such four (4) month period. However, the parties negotiated an extension for the rezoning and an amendment to other terms which were incorporated into a Restated Second Amendment to Real Estate Option Agreement (Complaint Exhibit 4). 48. Mt. Zion made all payments required of it pursuant 0 the Original Option, as amended, and otherwise performed its duties and of ligations thereunder. 49. Mt. Zion incurred substantial expense in pursuing development of the Deimler Farm, including securing a zoning change for the 104 Acre Tract from R-T to O-P, laying out a preliminary subdivision plan for all land owned I)y or optioned to Mt. Zion (designated Cumberland Technology Park), extending 12 inch water lines, 14 underground electric service, sewer service lines, cable and conduit, all to and through large portions of Cumberland Technology Park, with reliance upon the legal effectiveness of its agreements with Harbilas. It also constructed Technology Parkway through most of Cumberland Technology Park. 50. During the course of the aforesaid negotiations and activities of Mt. Zion, beginning in 1996 and extending through October 31, 1997, Jahn C. Harbilas never advised Mt. Zion that his wife, Kathryn M. Harbilas, was a party to the Agreement of Sale (by virtue of his recorded but improperly indexed assignment to her, Exhibit G). 51. When Mt. Zion discovered this deficit, which had be-3n concealed from Mt. Zion, Mt. Zion demanded that Kathryn M. Harbilas join in the Driginal Option, as amended; and on or about December 12, 1997, Kathryn M. Harbilas joined into the Original Option as amended. 52. Mt. Zion incurred substantial expense in reliance of the aforesaid representation of John C. Harbilas that he had valid title to the property when, in fact, he did not and therefore Mt. Zion had no legally enforceable rights to the option property. (Concealment of Deimler Novation 53. Not only did Harbilas fail to disclose to Mt. Zion the assignment of the March 15, 1988 Sales Agreement to Kathryn M. Harbilas, but Harbilas also failed to disclose a novation of his agreements with Deimler. Indeed, or or about January 7, 1997, Harbilas converted the Agreement of Sale which war,, the foundation of his equitable ownership and the basis of his dealings with Mt. Zion into a Real Estate Option Agreement with Deimler (Complaint Exhibit 1). 54. The conversion of the agreement of sale to an option jeopardized Harbilas' ability to perform the Option with Mt. Zion. 15 (Concealment of Harbilas/Deimler Settlcment Extension) 55. On August 12, 2002, Mt. Zion closed on the purchase of the 62 Acre Tract, and Mt. Zion and the Harbilas Defendants executed the August 2002 Amendment (Complaint Exhibit 5). 56. Paragraph 2 of the August 2002 Amendment extended Mt. Zion's option until February 15, 2005, and also contained the followinc proviso: "provided, however, in the event Seller [Harbilas Defendants] shall extend Seller's underlying option [the Harbilas/Deimler Option] on the Property [the 104 Acre Tract], the Expiration Date [of Mt. Zion's option] as set forth herein shall, withoL t further action of the parties, be extended for the same period of time." The paragraph continued by stating that "the price per acre [to be paid by Mt. Zion to Harbilas] wi I be $43,000.00 per acre if made [after August 12, 20031." 57. Pursuant to the Harbilas/Deimler Option, which superseded the prior agreements between Deimler and Harbilas, Harbilas was given L ntil March 15, 2005 to exercise his option to purchase all remaining lands in the Deimler Farm which were not previously purchased by Harbilas. Because of advaice payments made by Harbilas, the purchase price was adjusted to $15,00100 per acre. 58. Notwithstanding the continuing negotiations betweer Mt. Zion and Harbilas with respect to the Preliminary Final Subdivision Plan, which had occurred between November 18, 2004 and January 30, 2005, the Harb las Defendants actively concealed from Mt. Zion their negotiations with Deimler for a three year extension of their duty to close, all with the intent of denying to Mt. Zion its right to an extension of the exercise date of the Original Option, as amended by the provisions of the August 2002 Amendment, to March 15, 2008. 16 59. Had Harbilas acknowledged the extended settlemeit date to Mt. Zion, Mt. Zion would not have exercised the Option as to the 23.31 acre tract of land (at that time), would not have incurred the subdivision and ether expense with respect thereto, nor incurred other substantial expenses. (Intentional Failure to Coop jAj!gj 60. Paragraph 10 of the Original Option, in subparagraph (d), which was never revoked or amended, required the Harbilas Defendants to "cooperate reasonably, if required by the Buyer [Mt. Zion] in securing assurances from appropriate governmental authorities relating to subdivision, use, water, sewer and building permits and to give such assistance to Buyer [Mt. Zion] as may be reasonably necessary, other than money, to secure such approvals.... including execution of any documents reasonably required by Buyer [Mt. Zion] to effectuate; the same." 61. Beginning in December 2004, and continuing into early 2005, Harbilas and the engineer he hired met with officials of Hampden Township and, contrary to his duty of cooperation as set forth in the Option (see Paragraphs 15 and 60, above), attempted to persuade them not to approve the subdivision plan prepared and submitted by Mt. Zion, asserting it did not comply with law. 62. Contrary to his contractual duty of cooperation and the doctrine of good faith, from the summer of 2004 to at least the spring of 2006, Harbilas asserted to Mt. Zion that Mt. Zion had a contractual obligation to cor struct roads and utilities to the border of any residual property which was ownec by Harbilas after Mt. Zion's exercise of its Option. 63. No provisions in the Original Option or any of its subsequent amendments required Mt. Zion to physically construct a street or s1 reets or utilities to the 17 residual property (which Mt. Zion did not purchase). The Option is clear on this point, that Mt. Zion is only required to provide rights-of-way, and contains no obligation, express or implied, that Mt. Zion is required to physically construct the roads and utilities to the border of the Harbilas residual land. 64. Contrary to his contractual duty of cooperation and the doctrine of good faith, from December of 2004 through February 14, 2005, as set forth in the February 14, 2005 letter from Mt. Zion to Harbilas which is attached to Plaintiff's Complaint as Exhibit 6, Harbilas refused to execute the subdivision plans prepared and submitted to him by Mt. Zion. Such action alone results in Harbilas having unclean hands. 65. Harbilas, through his then attorney Bruce Foreman, notified Mt. Zion that Harbilas did not receive the February 14, 2005 notice from Mt. Zion exercising the Option. A copy of the correspondence from Bruce Foreman to counsel for Mt. Zion is attached hereto as Exhibit C. 66. Subsequently, counsel for Mt. Zion forwarded return receipt information provided by Federal Express confirming that "K. Harbilas" had, on February 15, 2005, signed a receipt for the Federal Express package exercising the Option. 67. Harbilas then expanded his basis for rejecting the nctice of the Option, to include failure of the subdivision plan to comply with the Hampden Township Zoning and Subdivision Ordinance (but the plan was subsequently approved by the Township) and failure to comply with the Option (not true). 68. One year later, through his new attorney, Susan Smi:h, Esquire, Harbilas admitted receiving the notice properly exercising the Option, but conditioned his performance of the Option on a condition not specified in the Option, and not 18 acceptable to Mt. Zion. A copy of the letter from Harbilas' then counsel, Susan Smith, Esquire, setting forth the unacceptable condition, is attached hereto as Exhibit E. 69. The actions of Harbilas in denying receipt of the notice; subsequently admitting receipt of the notice; and then agreeing to close on the sale of the 23.31 acres, but only with a condition not specified in the Option and not acceptable to Mt. Zion, constitutes unclean hands. (Intentional Failure to Comply with Option Terms) 70. As a specific term of the August 2002 Amendment, -and because of the likelihood that access to and from Harbilas' residual ground would be, in part, through Cumberland Technology Park, thereby implying to the public that the development of Harbilas' residual ground would be an extension of Cumberland Technology Park, Mt. Zion negotiated to have any residual ground which it did not purchase made subject to a Declaration of Protective Covenants for Cumberland Technology Park (see Paragraph 6(d) of the August 2002 Amendment, Complaint Exhibit 5). 71. Pursuant to the August 2002 Amendment, Harbilas agreed that any deed to Harbilas or its nominee would subject the property tc the aforesaid Declaration of Protective Covenants for Cumberland Technology Park. 72. Despite written demand by Mt. Zion prior to the Deirr ler/Harbilas closing that the deed to Harbilas include the aforesaid restriction, the deed from Deimler to Harbilas (Exhibit A hereto) does not, in fact, include i". 73. Harbilas' failure to follow a clear, concise, unambiguous provision of the Option constitutes unclean hands. 19 74. The foregoing actions, specified in Paragraphs 36 through 73 of the New Matter, together with other actions referenced in the Answer to the Complaint, individually and cumulatively, evidence a lack of good faith and unclean hands. Any of the series of actions, alone, but certainly cumulatively, evidence sufficient bad faith to preclude Harbilas from proceeding in a -,ourt of equity to enforce his alleged rights. Estoppel 75. By virtue of the matters set forth in Paragraphs 1 through 74 above, together with the averments of this Answer (and in particular, the averments of Paragraphs 36 through 73 hereof), Harbilas is estopped from secur ng the relief prayed for by Harbilas. Laches 76. The Complaint filed by Harbilas is barred by laches in that not filing it until March 27, 2008, three (3) years following Mt. Zion's filing of a lis pendens initiating legal proceedings against Harbilas to enfori;e the terms of the Option, is prejudicial to Mt. Zion. WHEREFORE, Mt. Zion requests the Court to dismi:;s the Harbilas Complaint, to recognize Mt. Zion's continuing rights in the residual property, and to recognize Harbilas' continuing duties pursuant to the Option, together with such other and further relief as the Court deems necessary or appropriate. COUNTERCLAIM 77. Paragraphs 1 through 76 hereof, together with the exhibits of the Complaint and the exhibits to this Answer with New Matter and Cou iterclaim, are incorporated herein by reference as if fully set forth herein. 20 78. As set forth in Exhibit 6 to Plaintiff's Complaint, Mt. Zion exercised its Option to purchase 23.31 acres. 79. Because of Harbilas' improper refusal to acknowledge Mt. Zion's exercise of the Option, Mt. Zion ultimately allowed its subdivision plan, which met all Township requirements and was approved by the Township subject only to the conditions that it be signed by the legal owner and equitable owner of the property, and that a bond for the streets shown thereon be posted, to Expire. 80. Because Mt. Zion was prevented, as aforesaid, from exercising its rights pursuant to the Option, this Court should afford Mt. Zion a reasonable time to resubmit its subdivision plan, secure approval, and thereafter to exercise its option and close on the portion of the Option which it exercised. 81. Because of Harbilas' refusal to acknowledge that the three (3) year extension of the Deimler/Harbilas option negotiated by Harbilas, which Harbilas concealed from Mt. Zion, automatically extended the (Mt. Zion) Option, Mt. Zion respectfully requests this Court to order that, as to the residual ground, the Option is and remains in effect for a period of three (3) years following the date of this Court's Order. 82. Harbilas entered into an Agreement for the Sale of Real Estate dated December 9, 2004, a copy of which is attached hereto as Exhib t B, for the purpose, inter alia, of extending the Harbilas/Deimler settlement date by three (3) years; but Harbilas actively concealed such extension from Mt. Zion. 83. The Option (Complaint Exhibit 3) provides, in Paragraph 17 thereof, that in the event of a breach by Harbilas, Mt. Zion is entitled to :specific performance and to recover its reasonable attorneys' fees in connection with any litigation. 21 WHEREFORE, Mt. Zion respectfully requests that this Court issue an Order: a. affording Mt. Zion a reasonable time to resubmit a subdivision plan, in order to secure subdivision plan approval for the 23.31 acre parcel of land as to which Mt. Zion properly exercised its Option; b. restricting Harbilas, directly or through his engineers or other agents, from contacting any Township officials with respect to the aforesaid subdivision plan; c. requiring Harbilas, as legal owner of the 100 acre residual parcel, to execute the usual and customary owner's certification on the aforesaid subdivision plan; d. requiring Harbilas, pursuant to the terms of the Option, not to encumber the 100 acre residual parcel of land, and to otherwise comply with the terms of the Option; e. requiring Harbilas to extend the Option for a reasonable time to permit Mt. Zion to subdivide the aforesaid (approximately) 23.31 acre tract of ground to Mt. Zion, free and clear of all liens and encumbrances, in accordanco with the terms of the Option and thereafter to delivery usual and customary closing documents in connection with the conveyance; f. awarding to Mt. Zion reasonable attorneys fees and costs incurred by it in connection with Harbilas' default, including all settlement and other negotiations related to the exercise of this Option; g. ordering that the residual land retained by Harbilas is and shall be subject to the Declaration of Restrictive Covenants pursuant to and aE required by the Option; h. ordering that the residual Harbilas parcel remains subject to the Option for a period of three (3) years; and 22 i. granting such other and further relief as the Court may deem necessary and appropriate. Date: __ 4,q 13 Z 010 Respectfully Submitted, WIX, WE 4GER & WEI NER Dean A. Weidner, I.D. #06363 Jeffrey C. Clark, I.D. # 89277 508 No -th Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Defendant Mt. Zion Associates L.P. 23 VERIFICATION I, Philip Markovitz, Vice President of Mt. Zion Associates, Inc., the general partner of Mt. Zion Associates L.P., Defendant in the foregoing matter, have read the foregoing Answer to Complaint in Equity and for Declaratory Judgment with New Matter and Counterclaim, and hereby affirm and verify that it is trUe and correct to the best of my personal knowledge, information and belief. I verify that all of the statements made in the foregoing are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S.A. Section 4904, elating to unsworn falsification to authorities. Date: <? v at z J c' Philip Markovitz EXHIBIT "A" Lin 1__; Prepared by: Core Settlement Services, Inc. 3800 Market Street Camp Hill, PA 17011 Return to: Above address DEED 1111111111111111111111 Tax Parcel No. 10-15-1283-003 THIS INDENTURE, made the _ /6A day of Detywkpr- in the year of our Lord Two Thousand Eight (2008). BETWEEN EUGENE R. DEIMLER, SR., TRUSS-EE OF THE DEIMLER, SR. TRUST, (hereinafter referred to as the "TRUST"), GRANTOR, Party of the First Part, A N D JOHN C. HARBILAS and KATHRYN M. HARE ILAS, husband and wife, GRANTEES, Party of the Second Part, WHEREAS, the Grantor is the sole trustee of The Doimler, Sr. Trust, created by Eugene R. Deimler, Sr., as Trustor (Settlor), on July 7, 1998; and WHEREAS, the Trust provides, in relevant part, as follows: ...the Trustee is specifically authorized and empowered with respect to any property, real or personal, at any time held under any provi.,ion of this Trust: to allot, allocate between principal and income, assign, borrow, buy, care for, collect, compromise claims, contract with respect to, continue any business of the Trustor, convey, convert, deal with, dispose of, enter into, exchange, hold, improve, incorporate any business of the Trustor, invest, lease, manage, mortgage, hypothecate (by Deed of Trust or other appropriate instrument), encumber, grant and exercise options with rest ect to, take possession of, pledge, receive, release, repair, sell, sue for, make distributions in cash or in kind or partly in each without regard to the income tax basis of such asset and in general, exercise all of the powers in the management of the Trust Estate which any individual could exercise in the management of similar property owned in his/her own right, upon such terms and conditions as to the Trustee may seem best, and execute and deliver any and all instruments and do all acts which the Trustee may deem proper or necessary to carry )ut the purposes of this Trust, without being limited in any way by the specific grants of mower made, and without the necessity of a court order. NOW THEREFORE, WITNESSETH that the said Party of th j Fir >^azthor?t defy in consideration of the sum of 5Q Y l f) TT U nil a d-ruJQ I A-T ?2 ($11 °7T-00) DOLLAR and .00/100, lawful money of the United States of America, well and truly paid by the said Party of the Second Part to the said Party of the First Part, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, alienated, enfeoffed, released, conN eyed and confirmed and by these presents does grant, bargain, sell, alien, enfeoff, release, -.onvey, and confirm unto the said Party of the Second Part, their heirs and assigns. ALL THAT CERTAIN tract of land shown on the Preliminary/Final Subdivision Plan of Deimler Farm, Good Hope Road, as situate in Hampden Township, Cumberland County., Pennsylvania, shown on a plan dated August 22, 1995, prepared by Act One Consultants, Inc. (Job No. 95-033), and more particularly bounded and described as follows, to wit: BEGINNING at a p.k. nail in the bed of Good Hope Road (public street 60' wide) at the dividing line between lands described herein and lan((s now or formerly of Faith Tabernacle Congregation (Plan Book 43, Page 35 and Plan .3ook 60, Page 116); thence through said bed of Good Hope Road North six degrees thin) minutes zero seconds West (N 061 30' 00" W) a distance of 959.55 feet to a p.k. nail zt line of lands described in Cumberland County Plan Book 43, Page 35; thence along said lands the following three courses and distances: 1) North seventy-seven degrees twenty-four minutes eleven seconds East (N 77° 24' 11" E) 112.76 feet through an iron pin on the Good Hope Road right-of-way line to a second iron pin; 2) North five degrees zero minutes forty seconds West (N 05° 00' 40" W) 119.33 feet to a point; and 3) North twenty-three degrees forty- four minutes sixteen seconds East (N 23° 44' 16" E) 80.00 feet to an iron pin at the dividing line between Lot I and Lot 2 of the herein described plan; thence along said dividing; line of Lot 1 and Lot 2 the following three courses and distances: 1) South sixty-six: degrees fifteen minutes forty-four seconds East (S 651 15' 44" E) 320.00 feet to a point; 2) North three degrees thirty-two minutes fifty seconds West (N 03° 32' 50" W) 199.76 feet to a point; and 3) North eighty-six degrees tweet)-seven minutes ten seconds East (N 86° 27' 10" E) 1165.53 feet to a point at lands now or formerly of Hampden Township Sewer Authority (Plan Book 37, Page 103 and Plan Book 49, Page 146); thence along said lands of the Sewer Authority South fifteen degrees eight minutes fifty seconds East (S 15° 08' 50" E) a distance of 170.00 feet to an existing concrete monument; thence North seventy-two degrees fifty-four minutes fifty-five seconds East (N 72° 54' 55" E) a distance of 300.77 feet to an existing concrete monument; thence North seventeen degrees eight minutes fifty-eight seconds west (N 17° 08' 58" W) a distance of 40.00 feet to an existing concrete monument; thence North seventy-two degrees twenty-nine minutes forty-two seconds East (N 72" 29' 42" E) a distance of 374.50 feet to an existing concrete monument; thence Soutf. twelve degrees twenty-four minutes ten seconds East (S 12° 24' 10" E) a distance of 386.59 feet to a pin; thence North seventy-three degrees thirty-one minutes eighteen seconds East (N 73° 31' 18" E) a distance of 268.45 feet to an existing concrete monument; thence South eighty-nine degrees forty-five minutes seven seconds East (S 89° 45'07" E) a distance of 214.50 feet to an existing concrete monument; thence South sixty-nine degrees eleven minutes fourteen seconds East (S 69° 11' 14" E) a distance of 178.25' feet to an existing concrete monument; thence North fifty-one degrees forty-seven mimttes twenty-six seconds East (N 511 47' 26" E) a distance of 174.67 feet to a point on the opposite side of Sears Run; thence along and through Sears Run South thirty-nine degrees thirty-three minutes twenty-five seconds East (S 39° 33' 25" E) a distance of 6;0.50 feet to a point; thence continuing along same South thirty-two degrees thirty-six minutes eight seconds East (S 32° 36' 08" E) a distance of 118.80 feet to a point at line of lands now or formerly of Ronald Weaver; thence along lands now or formerly of ]Ronald Weaver, of Charles Kemberling and of Raymond Mitchell South fifty-nine degrees thirty-eight minutes fifty- two seconds West (S 59° 38' 52" W) a distance of 2580.37 feet to a point at lands now or formerly of Eugene E. Heiges; thence along lands now or formerly of Heiges and lands now or formerly of Gregory A. Kauffman (Cumberland County Plan Book 50, Page 104) North seventy-seven degrees zero minutes zero seconds West (N 77°00' 00" W) a distance of 560.12 feet to an iron pin at line of lands now cr formerly of Faye Sweger; thence along said lands now or formerly of Sweger the follcwing three and courses and distances: 1) North forty-three degrees thirty-nine minutes thirty-eight seconds East (N 43° 39'38" E) 39.00 feet to a iron pin; 2) South seventy-two degrees five minutes twenty- two seconds East (S 721 05' 22" E) 152.90 feet to an iron pin; and 3) North six degrees twenty :minutes twenty-two seconds West (N 06° 20'22" W) a distance of 350.00 feet to an iron pin at line of lands now or formerly of Faith Tabeinacle Congregation; thence along lands now or formerly of said Congregation the following two courses and distances: 1) North three degrees forty-two minutes twenty-n.ne seconds West (N 03° 42' 29" W) 349.75 feet to an iron pin; 2) South eighty-six degre ;s seventeen minutes thirty- one seconds West (S 86° 17' 31" W) a distance of 802.76 feet through an iron pin on the right-of-way line of Good Hope Road to a p.k. nail in the bird of Good Hope Road, the point of BEGINNING. BEING Lot 2 on the aforementioned Preliminary Final Subdivision Plan of Deimler Farm, Good Hope Road, recorded in Plan Book 85, Page 103. LESS AND EXCEPTING property conveyed in Deed of Dedication by and between Eugene R. Deimler, Sr., Trustee, The Deimler Sr. rust, John C. Harbilas and Kathryn M. Harbilas, Mt. Zion Associates, L.P., as Grantors and Township of Hampden, as Grantee dated June 5, 2006 and recorded June 30, 2006 in the Recorder of Deeds Office in and for Cumberland County, Pennsylvania in Deed Dook 275, Page 2189. AND LESS AND EXCEPTING property conveyed in Deed of Dedication by and between Eugene R. Deimler, Sr., Trustee, The Deimler Sr. Trust, John C. Harbilas and Kathryn M. Harbilas, Mt. Zion Associates, L.P., as Granters and Hampden Township Sewer Authority, as Grantee dated March 26, 2007and recorded April 9, 2007 in the Recorder of Deeds Office in and for Cumberland County, Pennsylvania in Deed Book 279, Page 2423. UNDER AND SUBJECT to easements, conditions and restrictions of record including, without limitation, a 70' wide PP&L right-of-w-iy shown in Miscellaneous Book 178, Page 153; a 33' wide AT&T right-of-way shown in Miscellaneous Book 87, Page 159; a 15' wide water line easement described in Miscellaneous Book 295, Page 198; and a 30' wide force main easement described in Plan 49, Page 148. BEING PART OF THE SAME PREMISES whi cch Eugene R. Deimler, Sr. granted and conveyed unto The Deimler, Sr. Trust by deed dated October 8, 1998, and recorded on December 24, 1998, in the Recorder of Deeds Office in and for Cumberland County., Pennsylvania in Deed Book 191, Page 778. Pursuant to Section 3030 and 304(m) of the Pennsylvania Land Recycling and Environmental Remediation Standards Act ("Act 2'9, 35 P.S. §§60263030 and 6026.304(m), Section 405 of the Pennsylvania Solid Waste Management Act, 35 P.S. §6018.405, and Section 512 of the Pennsylvania Hazardous Sites Cleanup Act ("HSCA"), 35 P.S. §6020.512, the Grantor hereby provides notice that solid waste and hazardous substances have been disposed and released on the land described in this Deed (the "Land') and remediated to an Act 2 cleanup standard Groff ndwater on a portion of the Land has been impacted by chlorinated solvents, including perchloroethylene and its breakdown products trichloroethylene, cis-1,2-dic)doroethylene, trans-1,2- dichloroethylene, 1,1 dichloroethylene, and vinyl chloric e. The location of the groundwater impacts by these substances is generally set foiTh in Exhibit A hereto. In addition, soils on the Land were impacted by those products, however, at concentrations that are below residential cleanup standards developed under Act 2. The Land was subject to characterization and remediation pursuant to Act 2, and a "final report" demonstrating compliance with Act 2 cleanup standards is expected to be submitted to the Pennsylvania Department of Environmental Protection ("1ADEP") by December 31, 2008. Soils were remediated to the Act 2 Statewide Health Standards for all constituents of concern, and groundwater was remediated to the Act 2 Site Specific Standard utilizing pathway elimination. Because certain contaminants are known to exist in soil and groundwater, pursuant to 35 P.S. §§ 6018.405, 6020.512, 6016.3030 and 6026.304(m), Grantor hereby provides this notice. This solid waste and hazardous substance acknowledgement shall be included in the description of the Land in the deed for all future conveyances or transfers of the Land pursuant to 35 P.S. §§6018.405, 6020.512, 60263030 and 6026.304(m). UNDER and SUBJECT to restrictions and conditions ,Ls now appear of record. AND THE SAID Party of the First Part, for their selvos, their heirs, executors and administrators, does by these presents, covenant, grant and agroe to and with the said Party of the Second Part, their heirs and assigns, that they, the said Party of the First Part, their heirs all and singular the hereditaments and premises hereinabc ve described and granted or mentioned and intended so to be, with appurtenances, unto the said Party of the Second Part, their heirs and assigns, against the said Party of the First Part ,md their heirs and against all and every other person or persons whomsoever, lawfully claiming or to claim the same or any pail thereof, by, from or under them, them or any of them, shall and will, by these presents, SPECIALLY WARRANT AND FOREVER DEFEND. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. IN WITNESS WHEREOF, the said Party of the First Part, have hereunto set their hands and seal the day and year first above written. Signed, Sealed and Delivered in the Presence of THE DEIMLER, SR. TRUST (SEAL) BY: L) WITNESS EUGENE R. DEIMLER, TRUSTEE tUGE-X E R. DEIMLER, TRUSTEE COMMONWEALTH OF PENNSYLVANIA COUNTYOF gw&c*.M*vD :SS On this, the 16 LR day of et:x-w bpr _, 2008, before me, a Notary Public, the undersigned officer, personally appeared EUGENE R. DEIMLER, AS TRUSTEE, the Grantor, known to me (or satisfactorily pro- en) to be the person whose name is subscribed to the within instrument, and acknowledge d that he executed the same for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my hand and Notarial seal. L - My Commission Expires Notary CERTIFICATION OFADDRES6' I hereby certify that the precise residence of the Grantee n the within Deed is: Agent fo rantee 3 m 3 N 7 w Lf ni ANN o d N 0 0 n w w a w v w. o Z ..r u - = w o 1 a a # t? \ Q?m U va 0NW \ O Z a 1 W Z V • lll 1 1 a? ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 200900435 Recorded On 1/7/2009 At 11:21:40 AM * Instrument Type - DEED Invoice Number - 34911 User ID - MSW * Grantor - DEIMLER SR TRUST * Grantee - HARBILAS, JOHN C * Customer - CORE SETTLEMENT SERVICES * FEES STATE TRANSFER TAX $7,126.90 STATE WRIT TAX $0.50 STATE JCS/ACCESS TO $10.00 JUSTICE RECORDING FEES - $17.50 RECORDER OF DEEDS PARCEL CERTIFICATION $10.00 FEES AFFORDABLE: HOUSING $11.50 COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 CUMBERLAND VALLEY $3,563.45 SCHOOL DISTRICT HAMPDEN TOWNSHIP $3,563.45 TOTAL PAIL) $14,308.30 *Total Pages - 8 Certification Page DO NOT DETACH This page is now part of i:his legal document. I Certify this to be recorded in Cumberla rid County PA cf cuq K ° RECORDER O D EDS ryao * - Information denoted by iin asterisk may change during the verification process and may not be reflected on this page. V!iIIININIUImII?N EXHIBIT "B" 08/28/2005 09:05 FAQ. 717697768' SNELBAIKER BRENNEMAN SPAT 0 002 AGREEMENT FOR THE SALE OF REAL (ESTATE THIS AGREEMENT is made this day of -D,c r#"6*r , 2DO L/, by and between Eugene R. Deimler, Sr., an adult individual, of 4875 Deimler Lane, Camp Hill, Cumberland County, Pennsylvania 17011,. and Deimler, Sr.; Trust, Eugene R. Daimler, Trustee, hereinafter jointly called "Seller", and John C. Harbii14 s and Kathryn Harbilas, adult individuals and husband and wife, of 817 Mandy Lane, Gimp Hill, Cumberland County, Pennsylvania 17011, or his assigns, hereinafter collectively calleJ "Purchaser". WHEREAS, Seller is the title owner of record of the Real Estate known as the Deimler Farm located adjacent to Good Hope Road in Hampden Township, Cumberland County, Pennsylvania, more fully described on Exhibit A attached hemto and incorporated herein by reference, hereinafter referred to as the "Real Estate"; and WHEREAS, Seller and Purchaser had previously ex.cuted a Reel Estate Option Agreement (the "Option Agreement') for Real Estate dated January 7, 1997, and recorded in the Office of the Recorder of Deeds of Cumberland County January 17, 1997, in Miscellaneous Book 538, Page 1113, as amended August 12, 2002; and WHEREAS, the Option Agreement provides an expiratior date of March 15, 2005; and WHEREAS, the Option Period set forth in the Option Agreement may expire without Purchaser having fully exercised his rights regarding Real Estate: under the Option Agreement; and WHEREAS, Seller desires to sell and Purchaser agrees to purchase remaining Beal e=state under and subject to the terms and conditions hereinafter provided which the parties desire to confirm in writing. NOW, THEREFORE, and in consideration of their mutual promises and covenants, and other goad and valuable consideration, receipt of which is heriaby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1_ RECITALS. The recitals set forth above are incorporated herein by reference. 2. SALE AND PURCHASE. Seller hereby agrees ;o sell, transfer and convey to Purchaser, who agrees to purchase, Real Estate, The parties agree that Purchaser shall have all rights which Purchaser had as Optionee under the above-isferenced Option Agreement, except that payments by Purchaser shall be made as set forth herein, 3. PURCHASE PRICE, Purchaser shall pay the sum of Seven Hundred Twelve Thousand Six Hundred Ninety and 00/100 ($712,690.00) Dollars, to Seller, as follows: 03//28/2005 09:05 FAX 717697768 SNELBAIZER BRENNEMAN S?A' 8003 a. The principal sum of One Hundred Thousand and 001100 ($100,000.00) Dollars, on March 15, 2005; and b. The principal sum of One Hundred Thousand and i]01100 ($100,000.00) Dollars, on June 15, 2006. C. The balance of the purchase price principal in the sure of Five Hundred Twelve Thousand Six Hundred Ninety and 001100 ($512,690.00) Dollars, to be paid on March 15, 2008. d. Purchaser retains right of pre-payment without pen-cilty, 4. INTEREST ON PURCHASE PRICE. Purchaser shell pay annual interest on the outstanding balance of the purchase price to Seller, reduced in accord with the principal payments made that year, which interest shall begin to accrue on March 15, 2005, as follows: a. On March 15, 2006, Purchaser will pay an annual interest payment at a rate of five (5%) percent of the current outstanding balance of the purchase price due to Seller. b. On March 15, 2007, Purchaser will pay an annual interest payment at a rate of five (5%) percent of the current outstanding balance of the purchase price due to Seller; and C. On March 15, 2005, Purchaser will pay a final inte5rest payment at a rate of five (5%) percent of the current outstanding balance of the purchase price concurrently due to Seller. 5. RIrAI_ ESTATE TO BE CONVEYED. Purchaser may designate within the limitations set forth herein a portion of the Real Estate, being equal to the amount of land which has been paid for by Purchaser under this agreement based upon the per-acre price determined by the prior Option and dividing the total salelpurcha se price by the total acreage, and Purchaser shall be entitled to receive tltle and conveyance to the same after subdivision. All costs, expenses and fees required to effect an approved subdivision shall be paid for solely by Purchaser without contribution or reimbursement by Seller. Seller will cooperate with Purchaser in the subdivision process. The parties agree that upon payment of the $100,000.00 by Purchaser to Seller due on March 15, 2005, Purchaser shall be entitled to 63,432 acres of land based upon payments previously or then made. Limitation on designation. Purchaser's right to designate land for conveyance shall be limited to: (a) A tract of unimproved land (not to include any buildings on said designated tract). (b) The location of such tract shall be situated so that Seller's remaining land will be accessible to an existing public read by direct adjoiner in such manner that such remaining land can be leveloped in accordance with existing zoning regulations of Hampden Township. (c) Such designated land shall not include any of the existing buildings or other structures, 2 03/2&/2005 09:05 FAX 717697768 SNELBAKER BRENNEMAN SPA' Z 004 (d) if the designated land includes any wells providing water to the remaining lands improved with existing buildings, an appropriate easement and right-of-way shall be provided and reserved for Seller appurtenant to said remaining land. (e) Said designated land shall be conveyed subject to Seller's obligation to extend all utilities which may be constructed on the designated land to the boundary of Seller's remaining lands in order to provide said remaining lands with the right to connect thereto for ttie development and use of the remaining lands in accordance with the existing zoning regulations of Hampden Township. The term "utilities" shall include sanitary sewer, water, gas, electricity, telephone and cable television. 6, NOTICE ON REAL ESTATE TO BE CONVEYED. Purchaser shall provide Seller with six (6) months notice of Purchaser's intent to designale a portion or portions of Real Estate to which Purchaser is to received title and conveyance. S aid notice Is necessary so that Seller can continue to farm portions of the Real Estate until final settlement. However, Purchaser will be entitled to take ownership and possession of Real Estate without delay if Seller is not currently farming the portion of Real Estate. a. DEED AND TITLE. The title to the premises shall be conveyed to Purchaser by Seller's special warranty dead, conveying good and marketable Itle, free and clear of all other judgments, liens and encumbrances, subject only to easements rights-of-way and restrictions of record and those which a physical inspection of the Real Estate would disclose. Title shall be such as will be insured by any reputable title insurance company doing business in Pennsylva- nia, at its regular rates. B. TAXES. County, municipal and school district Reel Estate taxes shall be paid by Seller until final settlement. Sewer, trash and other municipal clarges shall be paid by Seller and apportioned pro rata as of the date of settlement. Seller will be solely responsible for any reduced assessment of Real Estate due to the use of the land or the roll beck of taxes, including any clean and green provisions. 9. SETTLEMENT. Settlement, subject to satisfaction of all contingencies herein set forth, shall take place on or before the 15" day of March, 2008, at the law offices of Foreman & Foreman PC, 4409 North Front Street, Harrisburg, Pennsylvania or at such other place as the parties may hereafter agree to in writing. 10. POSSESSION. Purchaser shall be entitled to possession of the Real Estate as of the date of settlement for that portion of Real Estate. However, Purchaser and/or their agents shall be allowed access to the Real Estate for the purpose of -onducting inspections and/or appraisals of the Real Estate but Purchaser shall be responsible! to Seller for any damages to growing crops caused by such inspections and/or appraisals. 11. SEL ER'S DEFAULT, If Seller is unable to deliver the quality of title required In, accordance with the terms of this Agreement, Purchaser shall have the option of terminating this Agreement, or cure title at Seller's expense. 03/25;2005 09:06 FAX 71769776P SNELBAKER BRENNEMAN .SPA 005 12. . REAL ESTATE TRANSFER TAXES, Each party allrees to pay one-half (1/2) of the realty transfer taxes which may be required to be paid as a result of any transfer at the time the deed is recorded. - 13. CURRENT USE. Except as specifically stated below, Seller represents that he has not received any notice from any governmental authority of any violation of any laws relating to the current use or condition of the Real Estate and warrants that he will comply with the requirements of all notices received prior to the date of final settlement at his sole cost and expense, It is specifically understood and agreed that botli parties hereto have actual knowledge of an environmental problem concerning ground water contamination presently identified as being located generally in the northeastern arvi of the real estate and that possible remediation may be required. Purchaser as equitable cwner covenants and agrees to cure said groundwater problem at such time as enforcement action may require, and Purchaser agrees to indemnify Seller and hold him harmless of and from any and all costs, expenses, penalties or fines hereinafter arising from said enforcement action and the curing of the problem. The responsibilities of Purchaser in this paragraph i;y shall commence immediately upon the execution of this agreement. The provisions of th::s paragraph 13 shall survive final settlement of the sale of -the Real Estate. 14. CONDITION OF REAL ESTATE. Seller shall not 13e responsible for the curing of any existing environmental problems discovered on Real Estate. Purchaser or his assigns shall be responsible for the curing of any existing environmental probl ams disclosed to Purchaser as of this date. Seller shall be responsible for cleaning all debris, trash and other materials from Real Estate, including, but not limited to, tires and vehicles currently on Real Estate. Seller agrees to allow Purchaser full and complete access to the Beal Estate to remediate any existing environmental problems thereon, Including digging of wells. 15, ENTIRE AGREEMENT. It is further understooc that this Agreement and the documents herein referenced contain the entire Agreement between Seller and Purchaser and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise, of any kind whatsoever concerning this sale. Furthermore, this Agreement shall not be amended except in writing executed by the parties hereto. The terms of this Agreement shall survive settlement 16. EFFECTIVE DATE OF THUS AGREEMENT. Exce at as otherwise provided hereinabove, this Agreement will be effective as of the termination of an existing Option with Mt. Zion Associates and with Purchaser and, in'the event the Option with Mt. Zion Associates is exercised in part but not with regard to all lands herein covered, this Agreement shall be pro rated by acreage in or when the Option is exercised and cominue with regard to remaining lands and, if the Option is exercised with regard to all lands which are the subject of this Agreement, this Agreement shall terminate and no party sh?]l have any further obligation hereunder. Until the expiration of the Option with Purchaser, Purchaser may act under that Option. 17. BINDING EFFECT. This Agreement shall be bidding upon the parties hereto,, their respective heirs, executors, administrators, successore and assigns. Specifically, Purchaser may take title to any portion of said Real Estate in his own name or In the name of - any assignee, and Purchaser may. assign any portion of this Agmement to any assignee. 4 03/°28./2005 09:06 FAX 71769776r SNELBAIMR BRENNEMAN SFE 2006 Is. GOVERNING LAW. This Agreement shall be golrerned by and construed in accordance with the laws of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, hereunto set their hands and seals the day and year first above wrtten, Witness: SELLER: EU E R. D EIMLER, SR. T EIMLER S . TRUST E GENE R. DEIMLER, SR. TRUSTEE PURCHASER.. C, JOHN C. HARBILAS KATHR'Y'N RR-B LAS 5 03/23,/2005 09:06 FA:( 71769776' SNELBAKER BRENNEMAN E;P 16007 COMMONWEALTH OF PENNSYLVANIA SS, COUNTYOF C?u?hdtru-? - On this, the q-N_ day of Dew sew 2004, before me, the undersigned officer, personally appeared Eugene R. Deirnler, Sr. and The Deimler Sr., Trust, Eugene R, Deimler, Sr., Trustee, known to me (or satisfactor'ly proven) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged that he/she/they executed the same for the purposes herein contained. IN WITNESS WHEREOF, I hereunto set my hand and ofcial seal. My Commission Expires: COMMONWEALTH OF PENNSYLVANIA Notarial Seal Susan L. Matraii, No?ary Public Mechanicsburg Boro, Cumberland County My Commission Bxpires Nov, 2b, 2007 Mernber, PF nnsylvar is Association of Notaries al-I o ry Public ?-k*tr?+,?fnew.rr?..?*..,rrx+tiewwvetxk*w,rk?ex*ww•x?•?r*,k,4*++??r+?i*..*??w.?w?****ws*?n??wkxonl??w,r,rxr?ww,r*?e*,v x•x-?,?*,Fri•,t COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF On this, the I ( r)4-1\ day of cam ?&r , 2004, before me, the undersigned officer, personally appeared John C. Harbilas and Kathryn Harbilas, known to me (or satisfactorily proven) to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged that he/she/they executed the same for the purposes herein contained. IN WITNESS WHEREOF, I hereunto set my hand and ofS.,ial seal. My Commission Expires; Notary Public ?-' 6 03.!28/2005 09:06 FAX 71769776' SNELBAKER BRENNEMAN 5P 0 008 EXHIBIT A DESCRIPTION OF REAL. ESTATE ALL that certain tract of land containing 104.2789 acres situated in the Township of Hampden, County of Cumberland and Commonwealth of Pennsylvania, being all of Lot No. 2 as shown on a certain plan of lots entitled "Preliminaiy/Final Subd.vision Plan of Deimler Farm" dated August 22, 1995 and last revised on September 21, 1995, :•ecorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvani,. in Plan Book 85, Page 103. EXHIBIT "C" LAW OFFICES FOREMAN & FOREMA:?T, P. C. BRUCE D. FOREb1AN JEFF FOREMAN TR14CY L. UPDIKE JONATHAN 1vL CR:IST 4409 NORTH FRONT STREET HARRISBURG, PA 17110-1709 March 3, 2005 TELEPHONE (717) 236.9391 FAY (717) 236-6602 ie ff@fore man-foreman. com bruce@foreman-foreman.com tracv@foreman-foreman.com ionathanaforeman-fore man.com Via Facsimile 234.4224 First Class Mail Dean A. Weidner, Esquire Wix, Wenger & Weidner 5o8 North 2nd Street P.O. Box 8,45 Harrisburg, PA 17io8-0845 Re: Mt,. Zion Associates LP - Harbilas Dear Attorney Weidner: I received your fax letter of March 3, 2005. The Option Agree rent required that exercise of the option be made by a delivery of notice to the Optionor, Mr. Harbilas. Mr. Harbilas advises me that he did not receive notice of the exercise of the option by any of the means set forth in the Option Agreement. We believe that the option was not properly exercised and, by its terms, it has expired. Ve tr J 0 S, "Br?uc reman BDF.mam Cc: John Harbilas (via facsimile only 238-5355) EXHIBIT "D" LAW OFFICES FOREMAN & FOREMA]v, P.C. BRUCE D. FOREMAN JEFF FOREMAN TRACY L. UPDIKE JONATHAN M. GRIST 4409 NORTH FRONT STREET HARRISBURG, P_1 17110.1709 TELEPHONE. (717) 236.9391 FAX (717) 236.6602 ief[Ca fore m an-foreman. com bruce@foreman-foreman.com trace@fore m an-foreman. com ionathan@foreman-fore man. com March 3, 2005 Via Facsimile 234.4224 First Class Mail Dean A. Weidner, Esquire Wix, Wenger & Weidner 5o8 North 2nd Street P.O. Box 8,15 Harrisburg, PA 171o8-0845 Re: Mt. Zion Associates LP - Harbilas Dear Attorney Weidner: I am writing to formally advise you of our position that your c. ients, Mt. Zion Associates, did not properly exercise their option rights under the Real Estate Option Agreement for the Deimler Farm property. While we believe that the proposed subdivision plan was improper for a number of reasons which you are already awar including but not limited to failure to abide by the applicable law and statute, particular ly the Hampden Township Subdivision and Land Development Ordinance, and in that it slid not comply with contract terms which requires that any action by your client leave the remaining parcel of the "Deimler Farm" reasonably developable, we also believe a] id assert that the option was not properly exercised. Any notice, such as the exercise of the option, had to have been timely hand delivered, sent by certified united states mail, postage prepaid or sent by overnight delivery service requiring receipt by the Seller with a copy to me. The option v ras not provided with notice by you within the time reauired as mandated by the opt ion. The option, having not been properly exercised, expired. Very truly yours, Bruce U.Am i? BDF.mam Cc: John Harbilas (via facsimile only 238-5355) Richard Snelbaker, Esquire (via facsimile only 697-7681) EXHIBIT "E" REAGER & ADLER, PC ATTORNEYS AND COUNSELORS AT LAW 2331 MARKET STREET CAMP Hill, PENNSYLVANIA 17011-4E42 717-763-1383 TELEFAX 717-730-7366 WEBSITE: ReagerAdlerPC.com THEODORE A. ADLER + DAVID W. REAGER CHARLES E. ZALESKI LINUS E. FENICLE THOMAS O. WILLIAMS SUSAN J. SMITH Writer's Email Address: ssmith@reageradlerpc.com April 13, 2005 Dean A. Weidner, Esq. Wix, Wenger & Weidner, PC 508 North 2nd Street PO Box 845 Harrisburg, PA 17108 SUSAN H. CONFAIR TIFFANY M. CARTWRIGHT PETER R. WILSON -rnrlif ed Ci-il Trb! Spec'e!i.;t Re: 23.31 acres (Lot 1A, Preliminary/Final Subdivision Plan for the Deimler Farm) Dear Dean: As discussed with you earlier this week, on behalf of Mr. Harbilas we recognize Mt. Zion Associates, L.P.'s exercise of its option on February 14, 2005 for 23.31 acres of the Deimler Farm ("Property"). As further agreed, settlement on the Property will not to ce place on April 14, but will be scheduled to take place at a future mutually convenient time. And, co:isistent with our mutual interest, I am ava?lahle to ngrticir..ate il, a pre-settlement reviffW meeting to discuss an?r outstand;nom matt- v. Settlement on the Property must include the following: 0 adequate and acceptable assurances of the reservation of utility and road (Sharla Circle and Technology Parkway) easements (for access and/or construction purposes) sited substantially in conformance with the Revised Preliminary Subdivision Plan, Cumberland Technology Park (approved October 1, 2002) and with :he Preliminary/Final Subdivision Plan for the Deimler Farm, as may be approved by Harr pden Township; • release of the lis pendens with prejudice; and • a Preliminary/Final Subdivision Plan for the Deimler Firm that fully satisfies the requirements of Hampden Township, as set forth in review comments prepared by Mr. Dean Weidner, Esq. April 13, 2005 Page 2 Spease, the Township's Engineer, or as may be determined by official action of the Township on the Plan, and timely approval of the sari e. Mr. Harbilas remains willing to enter into agreement with Mt. Zion Associates for option and purchase of the remaining acreage shown as Lot 1B on the proposed Preliminary/Final Subdivision Plan for the Deimler Farm. Ve truly y u' us an i? cc: John Harbilas EXHIBIT "F" AGREEMENT FOR THE SALE OF REAL ESTATE 01 This agreement is made this JS day of 1988,?gtNynI B n )z 10 r t seller, Eugene &i?lmler, residing at 4875 Diemler Lane, Cumberland County, ?`l , owner of Diemler Farm of ± 160 acres & purchaser-, John Harbilas, residing at 817 Mandy Lane, Camp Hill, PA, 17011 & assigns. John Harbilas agrees to purchase & Eugene DQmler agrees to sell all of his land - 180 acres for $20,000 per acre for a total of $3,600,000.00 to be paid at settlement, Exact purchase price to be determined by number of acres multiplied by $20,0003j00. I Settlement & transfer of Band shall occurr no later than ten years (10 yrs.) from the date of this contract. Seller has optiol to remove all existing buildings & contents prior to settlement. Seller to give buyer & his representatives full cooperation & access to site. Buyer will not interfere or disturb crops & planting by seller. Seller to continue use of land until start of construction. John Harbilas will purchase u hunting camp preselected by Dieniler fur a price not to exceed $:100,000.00, for the exclusive use by Of4mler & his representative. At settlement, Harbilas will exchange the equity in this hunting camp for an equal amount of equity in N-omlers Farm. In addition, Johr Harbilas; will provide R*niler $20,000 at signing of !I this agreement to be used for the purchase of a tractor to maintain land up i to standards until time of settlement. The land is to be conveyed!in fee simple by special waranty deed free 1 & clear of all liens & encumberances. This agreement is binding,?'upon the hiers, executors, & administrators. II h l 7Se 11 e r Witness 3=/o("S SW?11N.' `OT1A:,SUBSCRIBED i be't?reOm@):Lhd /G/^Lday 0 0r7?; ?• 1988!. t^ -Q S//b > > r BooK 406 E _50 Publ C D. WNN E. TROSTLE, Notary Pubno ?risburp, Dauphin County, Pa. BOOK r3Vj hlS?E [08- . my On EXIJ . 1 CE5 : Commlalon Explr e. August 21, 19D9 l) ?I II ?I ADDENDUM; AGREEMENT FOR THE SALE OF REAL ESTATE, Dated Mar I';, !988 between Eugene DtZinler and John Ilarbils Seller agrees that buyer may purchase at $20,000. per acre and s,ttle on any part of the farm during the period this contract is in force. Seller will cooperate and subdivide at the expense of the buyer the por'Liors of the faun to be transferred. Whenever possible, buyer will exchange with seller, farm land re>ulting in non-taxable transfers provided that tax laws apply. This agreement is contingent on financing. DATED: May 10 1988 SWORN TO AND SUBSCRIBED t. " befo4cR,+r lw,•t*s i O/& day 1T _ ..,. '_ 1988. Q!' A7 • Stale;of Pennsylvania c S.' . CCUnIy_ol :'Cumberland R :1ecorded fli tho' fllcg for the recording of Deeds 5 , m gland C ounl Pa. % s4 \ ook 1V01-? PagO My ,,epm .Expires: DAwmH E. TROSiLE. Notary Pub[ ?wttri83$• my, hand and anal of office at • :. Hrr4cbur0. oauoln County. P& . ,nm?,"`'' Cpmminloo E,wo-., noc,n( L•r,}P?le,.?'''??'' ?a I t9?) BOOKf 34?) PACE tf)86 BOOK 406 PACE 251 I I i a State of Pennsylvania County of Cumberland Recorded in the office for thlllecordj ig of Deeds etc. in and for Cumberland County, a inBookQVol. Pa("e witness my hand and ;cent pf ,)tl,ce o Carlisle, PA thi` ?--C?I LS;L_ 79?? cu? EXHIBIT "G" • r V,-/ .- ' ?'. OC i 2 1. I ASSIGNMINT I hereby assign all my rights, title and intc-est in and to the attached Agreement of Sale dated Math 15, 1988, from Eugene leimler to John Harbilas, recorded'in miscellaneous Book 349, Paqc IOH4, in volving property situate i.n (Hampden lbwnship, 1'umh ?i - land County, Pennsylvania, unto John (Harbilas and Kathryn Harbilas, his wife. (^J'`-' ?? .• I_-6,?._?e_.?.?` 1. _.. - 'U7f( ., 7 f ,o 'W 1 r hc'IP, COMMONWEALTH OF PENNSYLVANIA : SS COUNTY OF DAUPHIN On the 21 day of &I 6`x"1991 , be Core mu this, the undesigned officer, personally appeared john I Harbilasjlwhose name is subscribed to the within instrument, and acknowledged that he executod som,, j for the purpose therein contained. IN (WITNESS WHEREOF, I have hereunto set my hand and! seal. `^ M omission Expires-_ not "J 'rr' • " 'I D.1d G. Gckrs, nk I •Rd : r''+ Pi?,J! , ,. ?I FAy Qmunis_<oi fxp,ce Jan. J1, 19}t i! Y;• ' F,101i,?101, F?C(YLS M:UV.I l?r{ pa7;gn 0 ??OLIl1 5 EXHIBIT "H" Second Addendum to: Agreement For The Sale Of Real Estate dated March 15, 1988, between Eugene Deimler and John Harbilas. The parties hereto agree as follows: 1. Said real estate is to consist of all the land c wned by Eugene Deimler, approximately 166 acres as per survey of Act One Consulting Engineers dated March 5, 1991. i 2. Settlement and transfer of said real estate is hereby changed to occur on or before March 15, 2005. 3. In consideration of this addendum, John Har )ilas has agreed to pay Eugene Deimler $100,000.00 (one hundred thousand d Alars) a year for the Years 1995,1996 and 1997. This payment is to be exchanged fol land at $20,000.00 per acre. 4. It is hereby acknowledged that Eugene Deiriler has received to date monies from John Harbilas and that these monies will be cre cited to future conveyances of land at $20,000.00 per acre. 5. It is hereby agreed that John Harbilas has th s right to subdivide and purchase and transfer any portion or all of the land of the said -eal estate as he shall determine at any time this contract is in force. Payment for E ny of the portion of land shall occur on or before transfer unless! otherwise agreed to in writing by both parties. All other provisions of said Agreement and First Addendum not here changed shall remain in full force and effect. 1) In witness whereof we have set our hands and se als this CY day of June 1995. '. witness j 5,genoe Deiml r ,,Witin.ess is John C. Har ilas •-f : v 17 `\?.??1.-L`1-L?t_.?...-.n;. ?n .7wFfa IU. 10C9 ... _. . 1 State of ??,hV ?.c i{Jrw U 51A County of On this, the, y??? day of 19 yS-, before me The undersigned officer, personall} appeared Eugene R. Deimler Sr. and John C. Harbilas mown to me (or satisfactorily proven) to be the person whose name subsc ibed to the within instrument, and acknowledged. that' executed the same for the purpose theeik",coppai'ned. IN WITNESS WHEREOF, I have hereunto set my hand u JO weal. !+ i My Commission Expires a n_ C7 n 1 CD U' o ?- "' G o E L.L 1 O U 0 1. c= L? ,. W [ to IIJ •_ l1: U lLi ?; Aty Ca NUL-tW Seal Monaca J. Gbv , Pldta?typP?ttyfic Ii M1fyCaw?lori Nw.16,1[198 •1I?•re of Pennsylvania 1. SS li.unty of Cumberland i . orded in the office tc r the recording of D"'" :, in nd for Cumberle nd County, PtF ?Book?Vol. _-Page -? lin,cas my hand and S( al of office?f , , 19 ? i,?:,rtisla, PA this III-- day of ??? cord a((r 5'1 i?'Y^? I i v Boot`, 500 m.,: 729 0 0 K t U, X, ?• :FBI .s.?., r ?s. `?? ? ?? l l i BOOK 500 731 I! li J 1 JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs V. MT. ZION ASSOCIATES L.P., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 08-1936 Civil Term IN EQUITY AND FOR DECLARATOR" JUDGEMENT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Answer to Complaint in Equity and for Declaratory Judgment with New Matter and Counterclaim was sent by regular United States mail, postage prepaid to the following: David E. Lehman, Esquire McNees Wallace & Nurick, LLC: 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Date: fJAU WIX, WENC ER & WEIDNER By: Harva Owings augh n, Paralegal P.O. Box 845 508 North Second Street Harrisburg, PA 17101-0845 (717) 234-4182 F:\daw\3485 - ELYSIAN PARTNERS L.P\8809 - MT. ZION\Documents\Answer to Complaint in Equity.doc 1112110 4:37 PM David E. Lehman Attorney I.D. No. 15243 Charles T. Young, Jr. Attorney I.D. No. 80680 McNEES WALLACE & NURICK LLc P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 Phone: 717-237-5397 Fax: 717-260-1760 Attorneys for Plaintiffs TP, • Rv:, OTAP ,lit 3: 2 =_i JOHN C. HARBILAS and : IN THE COURT OF COMMON PLEAS KATHRYN M. HARBILAS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, NO. 08-1936 CIVIL TERM V. MT. ZION ASSOCIATES, L.P., : CIVIL ACTION - EQUITY AND FOR Defendant. : DECLARATORY JUDGMENT PLAINTIFFS' REPLY TO NEW MATTER AND ANSWER AND NEW MATTER TO COUNTERCLAIM Plaintiffs John C. Harbilas and Kathryn M. Harbilas, by and through their attorneys McNEES WALLACE & NURICK LLC, hereby file this Reply to New Matter and Answer and New Matter to Counterclaim. In response to Defendant's allegations, Plaintiffs state the following: REPLY TO NEW MATTER Allegation of Unclean Hands (Alleged Concealment of Real Estate License Concealment of Real Estate License) 36. Plaintiffs incorporate herein by reference, the allegations of their Complaint (and attached exhibits) as if fully set forth below. 37. Denied. The Real Estate Option Agreement dated July 23, 1996 (Exhibit 3 to the Complaint) is a legal document that speaks for itself, and Defendant's 1 characterizations of it are denied. By way of further response, Eugene Deimler executed a joinder to the agreement and became legally bound by its terms. 38. The Real Estate Option Agreement dated July 23, 1996 (Exhibit 3 to the Complaint) is a legal document that speaks for itself, and Defendant's characterizations of, and/or selective quotations from that document are denied. 39. It is admitted that Harbilas' ability to enter into the Real Estate Option Agreement dated July 23, 1996 (Exhibit 3 to the Complaint) was governed by a series of documents. The remainder of the allegations is denied. The Agreement for the Sale of Real Estate dated March 15, 1988 (Exhibit F to the Answer) is a legal document that speaks for itself, and Defendant's characterizations of that document are denied. 40. Denied. The Assignment dated October 21, 1991 (Exhibit G to the Answer) is a legal document that speaks for itself, and Defendant's characterizations of that document are denied. By way of further response, after reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the remainder of the allegations. They are therefore deemed denied. By way of further response, Plaintiffs had no control over the indexing of documents by the Cumberland County Recorder of Deeds. 41. The Agreement for the Sale of Real Estate dated March 15, 1988 (Exhibit F to the Answer), Assignment dated October 21, 1991 (Exhibit G to the Answer), and Second Addendum to Agreement for the Sale of Real Estate dated June 29, 1995 (Exhibit H to the Answer) are legal documents that speak for themselves, and Defendant's characterizations of those documents are denied. 2 42. Admitted in part, denied in part. It is admitted that Mr. Harbilas was a licensed real estate agent during the relevant period. The remainder of the allegations is denied. Mr. Harbilas disclosed his status as a licensed real estate agent to Mr. Deimler. By way of further response, Plaintiffs note that the Agreement for the Sale of Real Estate dated March 15, 1988 (Exhibit F to the Answer) itself states that, "Purchaser is a real estate agent." 43. Denied. Mr. Harbilas disclosed his status as a licensed real estate agent to Mr. Deimler. By way of further response, Plaintiffs note that the Agreement for the Sale of Real Estate dated March 15, 1988 (Exhibit F to the Answer) itself states that, "Purchaser is a real estate agent." By way of further response, Deimler was himself a party to the Real Estate Option Agreement dated July 23, 1996 (Exhibit 3 to the Complaint), and Deimler's obligations under that Agreement would not be affected by transactions to which Defendant was not a party. (Alleged Concealment of Kathryn Harbilas Assignment) 44. The Real Estate Option Agreement dated July 23, 1996 (Exhibit 3 to the Complaint) and the Assignment dated October 21, 1991 (Exhibit G to the Answer) are legal documents that speak for themselves, and Defendant's characterizations of, and/or selective quotations from those documents are denied. By way of further response, Plaintiffs did not conceal anything from Defendant. 45. The Real Estate Option Agreement dated July 23, 1996 (Exhibit 3 to the Complaint) is a legal document that speaks for itself, and Defendant's characterizations of it are denied. 3 : 46. This Paragraph refers to a legal document (viz, the Amendment to Real Estate Option Agreement dated April 8, 1997) that speaks for itself, and Defendant's characterizations of the document are therefore denied. 47. The Restated Second Amendment to Real Estate Option Agreement dated October 31, 1997 (Exhibit 4 to the Complaint) is a legal document that speaks for itself, and Defendant's characterizations of the document are denied. By way of further response, after reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the remainder of the averments. Therefore, they are deemed denied. 48. Denied. It is denied that Defendant performed its duties and obligations under the Real Estate Option Agreement dated July 23, 1996 (Exhibit 3 to the Complaint). 49. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are deemed denied. 50. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are deemed denied. 51. It is denied that anything was "concealed" from Defendant. It is admitted that Kathryn Harbilas executed a Joinder to the Real Estate Option dated December 12, 1997. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the remainder of the averments. Therefore, they are deemed denied. 4 : 52. Denied. This is simply not true, and the assertion is belied by Defendant's own allegations in prior paragraphs. (Alleged Concealment of Deimler Novation) 53. It is admitted that Plaintiffs entered into the "Real Estate Option Agreement" with Eugene Deimler on or about January 7, 1997. Defendant's remaining allegations are denied. The Real Estate Option Agreement with Deimler dated January 7, 1997 (Exhibit 1 to the Complaint) is a legal document that speaks for itself, and Defendant's characterizations of it are denied. By way of further response, there was no "novation." The Real Estate Option Agreement with Deimler dated January 7, 1997, had no effect on Defendant, as Deimler had previously executed a Joinder to the Real Estate Option Agreement between Harbilas and Defendant (Exhibit 3 to the Complaint). 54. Denied. This is simply not true. (Alleged Concealment of Harbilas/Deimler Settlement Extension) 55. The August 2002 Amendment to Real Estate Option Agreement (Exhibit 5 to the Complaint) is a legal document that speaks for itself, and Defendant's characterizations of it are denied. 56. The August 2002 Amendment to Real Estate Option Agreement (Exhibit 5 to the Complaint) is a legal document that speaks for itself, and Defendant's characterizations of, and/or selective quotations from that document are denied. 57. The Real Estate Option Agreement with Deimler dated January 7, 1997 (Exhibit 1 to the Complaint) is a legal document that speaks for itself, and Defendant's characterizations of that document are denied. 5 58. Denied. Plaintiffs did not "actively conceal" anything from Defendant. By way of further response, it is denied that Plaintiffs attempted to deprive Defendant of any right granted under the August 2002 Amendment to Real Estate Option Agreement or any other contract. Defendant is mischaracterizing the relevant events, and it is confused in its use of terminology. Exhibit 2 to the Complaint is an "Agreement for the Sale of Real Estate" between Deimler and Plaintiffs. It is not properly characterized as a "three year extension of their duty to close." Among other distinctions, under the Agreement for the Sale of Real Estate dated December 9, 2004, Plaintiffs were required to make significant payments towards the purchase of the property. 59. It is denied that Plaintiffs concealed anything from Defendant. It is further denied that Defendant validly exercised the Option. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the remainder of the averments. Therefore, they are deemed denied. (Alleged Intentional Failure to Cooperate) 60. The Real Estate Option Agreement dated July 23, 1996 (Exhibit 3 to the Complaint) is a legal document that speaks for itself, and Defendant's characterizations of, and/or selective quotations from that document are denied. By way of further response, Plaintiffs at all times cooperated in a reasonable manner with Defendant. 61. It is admitted that Mr. Harbilas had some contact with the township. The remainder of the allegations is denied. Plaintiffs at all times cooperated with Defendant. By way of further response, Defendant acted in a unreasonable manner, and Plaintiffs' purpose was only to ensure that their remaining property continued to be commercially viable and did not become "land-locked." 6 62. Denied. Plaintiffs at all times cooperated with Defendant and acted in good faith. By way of further response, Defendant acted in a unreasonable manner, and Plaintiffs' purpose was only to ensure that their remaining property continued to be commercially viable and did not become "land-locked." 63. This Paragraph references legal documents that speak for themselves, and Defendant's characterizations of those documents are denied. 64. Denied. Plaintiffs at all times cooperated with Defendant, and they acted in good faith. Plaintiffs expressed appropriate concern regarding road access and other issues involved in the coordination of development. Plaintiffs do not have unclean hands. By way of further response, Plaintiffs did not receive any plans in the Federal Express envelope, containing Defendant's letter of February 14, 2005. 65. The letter of March 3, 2005 (attached as Exhibit C to the Answer), is a document that speaks for itself, and Defendant's characterizations of it are denied. By way of further response, Plaintiffs did not receive any plans in the Federal Express envelope, containing Defendant's letter of February 14, 2005. Defendant purported to exercise the Option, but it remained unclear which version of the Subdivision Plans Defendant was pursuing. 66. It is admitted that Plaintiffs received a Federal Express containing the letter of February 14, 2005. It is denied that Plaintiffs received any plans as part of the Federal Express. Defendant purported to exercise the Option, but it remained unclear which version of the Subdivision Plans Defendant was pursuing. 67. Denied as stated. Plaintiffs expressed appropriate concerns regarding road access and other issues involved in the coordination of development. These concerns 7 have always formed the basis of Plaintiffs' actions, and Plaintiffs' concerns have not expanded over time. By way of further response, Plaintiffs did not receive any plans in the Federal Express envelope, containing Defendant's letter of February 14, 2005. Defendant purported to exercise the Option, but it remained unclear which version of the Subdivision Plans Defendant was pursuing. 68. The letter of April 13, 2005 (attached as Exhibit E to the Answer) is a document that speaks for itself, and Defendant's characterizations of it are denied. By way of further response, the Real Estate Option Agreement of July 23, 1996, is a legal document that speaks for itself, and Defendant's self-serving characterizations of it are denied. 69. Denied. Defendant is mischaracterizing the relevant events. Plaintiffs at all times acted reasonably and in good faith. Plaintiffs do not have unclean hands. (Alleged Intentional Failure to Comply with Option Terms) 70. The August 2002 Amendment to Real Estate Option Agreement (Exhibit 5 to the Complaint) is a legal document that speaks for itself, and Defendant's characterizations of it are denied. By way of further response, after reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the remainder of the averments. Therefore, they are denied. 71. The August 2002 Amendment to Real Estate Option Agreement (Exhibit 5 to the Complaint) is a legal document that speaks for itself, and Defendant's characterizations of it are denied. 72. Denied as stated. Harbilas did inform Mt. Zion that Harbilas was planning to complete a closing with Deimler, and to take title. That action would in no way affect Mt. 8 Zion's interests in the real estate. Harbilas also informed Mt. Zion that Harbilas intended to protect Mt. Zion's potential interests in the future applicability of the covenants to the tract in question, to the extent those did otherwise exist, by executing a separate agreement between Harbilas and Deimler, concerning the applicability of the covenants, but that the recording of that document would be withheld, pending further negotiations between the parties, or Order of Court. Accordingly, Harbilas has fulfilled any substantive obligation which may arise under the documents, between Harbilas and Mt. Zion. Mt. Zion has a complete copy of the executed agreement between Harbilas and Deimler, and fully understands that its substantive interests have been protected therein. 73. Denied. It is denied that Plaintiffs failed to honor their contractual obligations. It is denied that Plaintiffs acted with unclean hands. By way of further response, see Paragraph 72, above. Any substantive interests of Mt. Zion have been fully protected by the said agreement. 74. Denied. Plaintiffs acted in good faith, and they did not act with unclean hands. By way of further response, see Paragraph 72, above. Any substantive interests of Mt. Zion have been fully protected by the said agreement. Alleged Estoppel 75. Denied. It is denied Plaintiffs are estopped from securing the relief requested. By way of further response, see Paragraph 72, above. Any substantive interests of Mt. Zion have been fully protected by the said agreement. 9 Alleged Laches 76. This Paragraph states a legal conclusion to which no response is required. To the extent a response is deemed necessary, the allegations are denied. WHEREFORE, Plaintiffs respectfully request the Court to enter its judgment and decree that Mt. Zion's rights under the Option Agreement and the August 2002 Amendment have expired, have been exhausted or are otherwise unenforceable. The right or claim by Mt. Zion for further performance by Harbilas under the said agreements is ended and extinguished and Mt. Zion claims should be forever barred, and the lis pendens entered against the Plaintiff and the subject property should be stricken from the record. Plaintiffs further request that costs of the action be awarded to them. ANSWER TO COUNTERCLAIM 77. The responses contained in Paragraphs 1 through 76 above, together with the allegations of the Complaint and attached exhibits, are incorporated herein by reference as if fully set forth below. 78. Denied. It is denied that Defendant properly exercised its Option to purchase the property. 79. Denied. Plaintiffs did not improperly refuse to acknowledge Defendant's purported exercise of the Option. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the remainder of the averments. Therefore, they are deemed denied. 80. Denied. Defendant was not prevented from exercising its rights, and it is not entitled to any extension of time. 10 81. Denied. Plaintiffs did not conceal anything from Defendant, and they did not improperly refuse to acknowledge Defendant's purported exercise of the Option. The remainder of the Paragraph states legal conclusions to which no response is required. To the extent a response is deemed necessary, the allegations are denied. Defendant is not entitled to any extension of time or modification of the agreements. 82. It is admitted that Plaintiffs entered into the Agreement for the Sale of Real Estate dated December 9, 2004 (Exhibit 2 to the Complaint). The remainder of the averments is denied. The Agreement cannot fairly be characterized as an "extension of a settlement date," and Plaintiffs did not actively conceal anything from Defendant. 83. The Real Estate Option Agreement dated July 23, 1996 (Exhibit 3 to the Complaint) is a legal document that speaks for itself, and Defendant's characterizations of it are denied. WHEREFORE, Plaintiffs respectfully request the Court to enter its judgment and decree that Mt. Zion's rights under the Option Agreement and the August 2002 Amendment have expired, have been exhausted or are otherwise unenforceable. The right or claim by Mt. Zion for further performance by Harbilas under the said agreements is ended and extinguished and Mt. Zion claims should be forever barred, and the lis pendens entered against the Plaintiff and the subject property should be stricken from the record. Plaintiffs further request that costs of the action be awarded to them. NEW MATTER TO COUNTERCLAIM 84. Defendant is improperly seeking to modify the terms of the parties' agreements, and extend the Option for years past its expiration and any possible extension. 11 85. Defendant's Counterclaim may be barred by the doctrine of unclean hands. 86. Defendant may have acted in bad faith and failed to cooperate with Plaintiffs. 87. Defendant may have concealed relevant facts from Plaintiffs. 88. Defendant may be estopped from securing the relief requested. 89. Defendant's claim may be barred. by the doctrine of laches. 90. Defendant may have waived its claims and/or defenses by failing to act in a prompt manner. WHEREFORE, Plaintiffs respectfully request the Court to enter its judgment and decree that Mt. Zion's rights under the Option Agreement and the August 2002 Amendment have expired, have been exhausted or are otherwise unenforceable. The right or claim by Mt. Zion for further performance by Harbilas under the said agreements is ended and extinguished and Mt. Zion claims should be forever barred, and the lis pendens entered against the Plaintiff and the subject property should be stricken from the record. Plaintiffs further request that costs of the action be awarded to them. McNEES W LLAC & NU IC PLC 1, By David E. Lehman ` Attorney I.D. Nb. 5243 Charles T. Yogi g, Jr. Attorney I.D. o. 80680 McNEES WALLACE & NURICK LLC P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 Phone: 717-237-5397 Fax: 717-260-1760 Attorneys for Plaintiffs Dated: March 16, 2010 12 VERIFICATION Subject to the penalties of 18 Pa.C.S.A. § 4904 (relating to unsworn falsification to authorities), I, John C. Harbilas, hereby certify that (1) 1 have reviewed the foregoing Reply to New Matter and Answer and New Matter to Counterclaim and (2) the responses and allegations contained therein, are true and correct to the best of my knowledge, information, and belief. John C. Harbilas Dated: Pt42 c?# 15 , 2010 CERTIFICATE OF SERVICE I, Charles T. Young, Jr., hereby certify that on this 1L ay of March 2010, a true and correct copy of the foregoing Reply to New Matter and Answer and New Matter to Counterclaim was served by U.S. first-class mail, postage prepaid, on the following: (Attorney for Defendant Mt. Zion Associates, L.P.) Dean A. Weidner, Esq. WIX, WENGER & WEIDNER 508 North Secon Street P.O. Box 4$' ! r? Harrisburg, PA 1 1,b8-08451 /. Charles T. Youn JOHN C. HARBILAS and IN THE COURT OF COMMON PLEAS KATHRYN M. HARBILAS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION -LAW V. No. 08-1936 Civil Term MT. ZION ASSOCIATES L.P., INEQUITY AND FOR r? ^Defendant DECLARATORY JUDGMENT REPLY TO PLAINTIFF'S NEW MATTER TO COUNTERCLAIM AND NOW comes Defendant, Mt. Zion Associates L.P., a Pennsylvan4 IirrZ pd partnership, by its undersigned attorneys, Wix, Wenger & Weidner, and files this Reply to Plaintiff's New Matter to Counterclaim, stating as follows: 84 Paragraph 84 states a conclusion of law, to which no response is required. However, to the extent an answer is required, all averments of fact are denied and, if relevant, proof thereof is demanded. 85 Paragraph 85 states a conclusion of law, to which no response is required. However, to the extent an answer is required, all averments of fact are denied and, if relevant, proof thereof is demanded. 86 Paragraph 86 states a conclusion of law, to which no response is required. However, to the extent an answer is required, all averments of fact are denied and, if relevant, proof thereof is demanded. 87 Paragraph 87 states a conclusion of law, to which no response is required. However, to the extent an answer is required, all averments of fact are denied and, if relevant, proof thereof is demanded. 88 Paragraph 88 states a conclusion of law, to which no response is required. However, to the extent an answer is required, all averments of fact are denied and, if relevant, proof thereof is demanded. 89 Paragraph 89 states a conclusion of law, to which no response is required. However, to the extent an answer is required, all averments of fact are denied and, if relevant, proof thereof is demanded. 90 Paragraph 90 states a conclusion of law as to which no response is necessary. However, to the extent an answer is required, all averments of fact are denied and, if relevant, proof thereof is demanded. WHEREFORE, Mt. Zion requests the Court to dismiss the Harbilas Complaint, to recognize Mt. Zion's continuing rights in the residual property, and to recognize Harbilas' continuing duties pursuant to the Option, together with such other and further relief as the Court deems necessary or appropriate. Date: q /t,?l 16 Respectfully Submitted, WIX, WENGER & WEIDNER By: A4yort7SIeco aner, i.u. ;;U b6b 6 arkI.D. # 89277 nd d Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Defendant Mt. Zion Associates L.P. 2 VERIFICATION I, Philip Markovitz, Vice President of Mt. Zion Associates, Inc., the general partner of Mt. Zion Associates L.P. Defendant in the foregoing matter, have read the Reply to Plaintiff's New Matter to counterclaim foregoing , and hereby affirm and verify that it is true and correct to the best of my personal knowledge, information and belief. I verify that all of the statements made in the foregoing are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: '// ///Z o / o MT. ZION ASSOCIATES, INC. Philip Markovitz, Vice Pr dent 3 . , JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs V. MT. ZION ASSOCIATES L.P., Defendant CIVIL ACTION -LAW No. 08-1936 Civil Term IN EQUITY AND FOR DECLARATORY JUDGMENT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Reply to Plaintiff's New Matter to Counterclaim was sent by regular United States mail, postage prepaid to the following: David E. Lehman, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 WIX, WENGER & WEIDNER Date: H la C, I I C, By. Li M. Sites, Paralegal P.O. Box 845 508 North Second Street Harrisburg, PA 17101-0845 (717) 234-4182 F:1daw13485 - ELYSIAN PARTNERS L.P18809 - MT. ZIONOocuments\Answer to New Matter.doc 4/19/10 4:56 PM 4 1111 I I IL VVV1X1 VI VV1V11Y1v1? i - - CUMBERLAND COUNTY, PENNSYLVANIA Kandice J. Giurintano Attorney I.D. No. 86345 Kimberly A. Selemba Attorney I.D. No. 93535 McNEES WALLACE & NURICK LLC P.O. Box 1166,100 Pine Street Harrisburg, PA 17108-1166 Phone: 717-237-5452 Fax: 717-260-1698 Attorneys for Plaintiffs JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs, V. MT. ZION ASSOCIATES, L.P., Defendant. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-1936 CIVIL TERM : CIVIL ACTION - EQUITY AND FOR : DECLARATORY JUDGMENT PRAECIPE FOR WITHDRAWAL/ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of David E. Lehman, Esquire on behalf of Plaintiffs in the above-captioned matter. David E. Lehman I.D. No. 15243 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Tel: (717) 232-5285 Date: March ZE , 2012 TO THE PROTHONOTARY: Please enter the appearance of Kandice J. Giurintano and Kimberly A. Selemba as counsel for Plaintiffs in the above-captioned matter. McNEES W?LLACE & NURICK LLC By Date: March QT, 2012 Kanolce J. Giurintano I.D. No. 86345 Kimberly A. Selemba I.D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Tel: (717) 232-8000 Attorneys for Plaintiff CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Dean A. Weidner, Esq. Jeffrey C. Clark, Esq. WIX, WENGER & WEIDNER 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 i sephi e M. Brinley, Pa.C. . Dated: March ?U , 2012 L 20 12 AP -3 A ll:21, !'CUMBERLAND COUI1,1TY 'PENNSYLWANIA David E. Lehman Pa. I.D. No. 15243 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Phone: 717-237-5285 Fax: 717-260-1716 Attorney for Plaintiffs JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs, V. MT. ZION ASSOCIATES, L.P., Defendant. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-1936 CIVIL TERM : CIVIL ACTION - EQUITY AND FOR : DECLARATORY JUDGMENT PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of David E. Lehman, Esquire as additional counsel on behalf of Plaintiffs in the above-captioned matter. L David E. Lehman I.D. No. 15243 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Tel: (717) 232-5285 Date: April L , 2012 00 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Dean A. Weidner, Esq. Jeffrey C. Clark, Esq. WIX, WENGER & WEIDNER 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 QUI d David E. Lehman Dated: April, 2012 JOHN C. HARBILAS and IN THE COURT OF COMMON PLEAS KATHRYN M. HARBILAS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, NO. 08-1936 CIVIL TERM V. MT. ZION ASSOCIATES, L.P., CIVIL ACTION - EQUITY AND F41W, Defendant. DECLARATORY JUDGMENT - .. 03 LL .. , OBJECTIONS TO SUBPOENA PURSUANT TO RULE 4009.21 °-D Defendant, Mt. Zion Associates, L.P., objects to the proposed subpoena that is attached to these objections for the following reasons: (1) The scope of the proposed subpoena is overly broad and, due to that broad scope, inquires into irrelevant matters and matters not reasonably calculated to lead to the discovery of admissible evidence. (2) The proposed subpoena would require the disclosure of drawings, concept plans, sketches, studies, and similar documents prepared by the recipient of the proposed subpoena, H. Edward Black & Associates, P.C., an engineering firm hired by Defendant to do extensive work for the development known as Cumberland Technology Park. Plaintiffs are owners of contiguous property and are developers of a planned development of lots for businesses similar to the ones that Defendant seeks for its development - in other words, Plaintiffs are a competitor of Defendant. Plaintiffs could use the drawings, concept plans, sketches, studies, and the like, for its own benefit in the planning of their development. These documents were paid for by Defendant, and it would be unfair for Plaintiffs to obtain them and use them to their competitive advantage, particularly when they have little or no relevance to the litigation. Accordingly, the proposed subpoena is, in part or in whole, beyond the proper scope of discovery. Date: 611$ / k7- Respectfully Submitted, WIX, WENGER & WEIDNER By: Dea WW ' ner, I. D. #06363 Jeff r C. CI rk, I.D. # 89277 508 N rth Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Defendant Mt. Zion Associates L.P. JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs V. MT. ZION ASSOCIATES L.P., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 08-1936 Civil Term INEQUITY AND FOR DECLARATORY JUDGEMENT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Objections to Subpoena Pursuant to Rule 4009.21 was sent by regular United States mail, postage prepaid to the following: Kandice J. Giurintano, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attorneys for oilx WIX, Dater B?: Y,gula A. Cribben, Paralegal 508 North Second Street P.O. Box 845 Harrisburg, PA 17101-0845 (717) 234-4182 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs NO. 08-1936 CIVIL TERM V. MT. ZION ASSOCIATES, L.P., CIVIL ACTION -- EQUITY AND FOR Defendant DECLARATORY JUDGMENT SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: H. Edward Black and Associates P.C. 2403 N. Front Street Harrisburg, PA 17110 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things at the offices of McNees Wallace & Nurick LLC, 100 Pine Street, P. O, Box 1166, Harrisburg, PA 17108-1166: SEE ATTACHMENT A. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Kandice J. Giurintano, Esq. McNees Wallace & Nurick LLC 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 Phone: 717.237.5452 Supreme Court I.D. 86345 Attorneys for Plaintiffs BY THE COURT: Prothonotary Date: Seal of the Court Deputy Attachment A Please make available for review any and all files, documents, plans, notes, messages (including electronically stored communications), correspondence or the like referring and/or relating to work performed for Mt. Zion Associates relating to the Deimler Farm and/or Cumberland Technology Parkway from January 1, 2004 to the present. NOTE: This is a subpoena for document inspection, not for production of copies. Requestor reserves the right to obtain photocopies on a selective basis based on the inspection. '-Ii ED-OFFICE Kandice J. Giurintano ?'_ RO = MONO TARS Attorney I.D. No. 86345 1,012 Jul AM 10: 58 Kimberly A. Selemba c Attorney I.D. No. 93535 ,BERLAND COUNTY McNEES WALLACE & NURICK LJpENNSYLYANCA P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 Phone: 717-237-5452 Fax: 717-260-1698 Attorneys for Plaintiffs JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLV. : NO. 08-1936 CIVIL TERM V. MT. ZION ASSOCIATES, L.P., Defendant. CIVIL ACTION - EQUITY AND FOR DECLARATORY JUDGMENT CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiffs John C. Harbilas and Kathryn M. Harbilas, through their attorneys, McN Wallace & Nurick LLC, certify that (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed to Dean A. Weidner, Esq., and Jeffrey C. Clark, Esq., counsel for Mt. Zion Associates, L.P., at least twenty (20) days prior to the date on which the subpoena is sought to be served, (2) a copy of the notice of intent, including the proposed subpoena, is attached to certificate, (3) the subpoena which will be served is identical to the subpoena which is to the notice of intent to serve the subpoena, with the exception that counsel have agreed to indicate on the attachment to the subpoena that any documents copied will be stamped "ATTORNEYS' EYES ONLY" before sharing with other counsel, and (4) with the additional language to the attachment to the subpoena, counsel no longer has any objection to service of the subpoena. McNEES WALLACE & NURICK LLC By Kandi e J. Giurintano I.D. No. 86345 Kimberly A. Selemba I.D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Tel: (717) 232-8000 David E. Lehman I.D. No. 15243 P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5285 Attorneys for Plaintiffs Date: July 16, 2012 Kandice J. Giurintano Attorney I.D. No. 86345 Kimberly A. Selemba Attorney I.D. No. 93535 McNEES WALLACE & NURICK LLC P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 Phone: 717-237-5452 Fax: 717-260-1698 .Attorneys for Plaintiffs JOHN C. HARBILAS and : IN THE COURT OF COMMON PLEAS KATHRYN M. HARBILAS, : CUMBERLAND COUNTY, PENNSYLVAP Plaintiffs , NO. 08-1936 CIVIL TERM V. MT. ZION ASSOCIATES, L.P., : CIVIL ACTION - EQUITY AND FOR Defendant. : DECLARATORY JUDGMENT NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiffs John C. and Kathryn M. Harbilas, by their attorneys, McNees Wallace & Nurick LLC, intend to serve a subpoena identical to the one that is attached to this notice. Y have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be McNEES WALLACE & NURICK LLC By L-2L- Kandi J. Giurintano I.D. N .86345 Kimberly A. Selemba I.D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Tel: (717) 232-8000 David E. Lehman I.D. No. 15243 P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5285 Attorneys for Plaintiff Date: May 9, 2012 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs NO. 08-1936 CIVIL TERM V. MT. ZION ASSOCIATES, L.P., CIVIL ACTION - EQUITY AND FOR Defendant DECLARATORY JUDGMENT SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: H. Edward Black and Associates P.C. 2403 N. Front Street Harrisburg, PA 17110 Within twenty (20) days after service of this subpoena, you are ordered by the court t produce the following documents or things at the offices of McNees Wallace & Nurick LLC, 100 Pine Street, P. O. Box 1166, Harrisburg, PA 17108-1166: SEE ATTACHMENT A. You may deliver or mail legible copies of the documents or produce things requested this subpoena, together with the certificate of compliance, to the party making this request at address listed above. You have the right to seek in advance the reasonable cost of preparin the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling- you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Kandice J. Giurintano, Esq. McNees Wallace & Nurick LLC 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 Phone: 717.237.5452 Supreme Court I.D. 86345 Attorneys for Plaintiffs BY THE COURT: Prothonotary Date: Seal of the Court De Attachment A Please make available for review any and all files, documents, plans, notes, messages (including electronically stored communications), correspondence or the like referring and/or relating to work performed for Mt. Zion Associates relating to the Deimll Farm and/or Cumberland Technology Parkway from January 1, 2004 to the present. NOTE: This is a subpoena for document inspection, not for production of copies. Requestor reserves the right to obtain photocopies on a selective basis based on inspection. CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the document was served by first-class mail, postage prepaid, upon the following: Dean A. Weidner, Esq. Jeffrey C. Clark, Esq. WIX, WENGER & WEIDNER 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 J. Dated: May 9, 2012 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the document was served by first-class mail, postage prepaid, upon the following: Dean A. Weidner, Esq. Jeffrey C. Clark, Esq. WIX, WENGER & WEIDNER 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 61, Kimberly A. Selemba Dated: July 16, 2012 CA PRAECIPE FOR LISTING CASE FOR NON JURY TRIAL (Must be typewritten and submitted in triplicate) MM C/) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: =;V --v Please list the within matter for a TRIAL WITHOUT A JURY. rte- °' C5C� C)-n zQ ----------------------------------------------------------------------------------------------------- - --- tt- .... JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs NO. 08-1936 CIVIL TERM V. . MT. ZION ASSOCIATES, L.P., : CIVIL ACTION—EQUITY AND FOR Defendant : DECLARATORY JUDGMENT Indicate the attorney who will try case for the party who files this praecipe: Kandice Kerwin Hull (I.D.No. 86345) David E. Lehman, Esq. (I.D. No. 15243) Kimberly A. Selemba(I.D. No. 93535) 100 Pine Street McNees Wallace &Nurick LLC Harrisburg, PA 17101 100 Pine Street, P.O. Box 1166 Tel: (717) 237-5285 Harrisburg, PA 17108 Fax: (717) 237-5300 Tel: (717) 237-5452 Fax: (717) 260-1698 Attorneys for Plaintiffs Indicate trial counsel for other parties if known: Jeffrey C. Clark, Esq. WIX, WENGER& WEIDNER 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 Attorneys for Defendant - r This case is ready for trial. Kandice KerwiA Hull Dated: Attorney for Plaintiffs C01 aaS89s -,n CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Jeffrey C. Clark, Esq. WIX, WENGER& WEIDNER 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 K,dndi*ce Kerwi Hull Dated: September 9, 2013 -e JOHN C. HARBILAS AND 411 �ic,c (El 'lh 1 ich u•�, KATHRYN M. HARBILAS (�� u =.� Plaintiff IN THE COURT OF COMMON PLEAS v. OF THE NINTH JUDICIAL DISTRICT MT. ZION ASSOCIATES, L.P., 2008-01936 CIVIL VI : r*, r m_. Defendant • V/f IN RE: NON-JURY TRIAL —r, D ORDER OF COURT c ` AND NOW, this 3rd day October 2013, the non-jury trial being assigned to this court, prior to setting an actual trial date the parties are DIRECTED to file a pretrial memorandum with the Court on or before 4 Novemberer 2013 in the following format: i. A concise statement of factual issues to be decided at trial. ii. A list of witnesses the party intends to call at trial along with a concise statement of their anticipated testimony. iii. A list of all exhibits each party anticipates presenting at trial. iv. A statement of any legal issues each party anticipates being raised at trial along with copies of any cases which may be relevant to resolution of the stated issue. v. An estimate of the anticipated time needed for the party to present its case. Upon receipt and review of these memorandums, the court will set a trial date for this case. BY THE COURT, Thom:s A. Placey C.P.J. Distribution: Kandice Kerwin Hull Esq. David E. Lehman, Esq. Jeffrey C. Clark, Esq. 0-ae i ES nal /via//3 , JOHN C. HARBILAS and : IN THE COURT OF COMMON PLEAS KATHRYN M. HARBILAS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : NO. 08-1936 CIVIL TERM v. MT. ZION ASSOCIATES, L.P., : CIVIL ACTION —EQUITY AND FOR Defendant. : DECLARATORY JUDGMENT VI\ ORDER AND NOW, this \ day of October 2013, it is hereby Ordered that the prior Order in I this matter dated October 3, 2013 directing that the parties file pretrial memoranda on or before November 4, 2013 is amended to provide that the parties shall file such memoranda on or before November 25, 2013. In all other respects, the prior Order shall remain in effect. Thomas A. la ey, C.P.J. Distribution: X(andice Kerwin Hull, Esq. 47David E. Lehman, Esq. ..<> co r--- - . Jeffrey C. Clark, Esq. - z--r-- t•-, ' Ccr Ces tr&t a. .„ -,r1 ; �i..E .1-U'.F ICF i Iii Pt OiHONOTAi( 2313 DEC 17 Of 11: 25 JOHN C. HARBILCAISIMIL AND COUNTY : IN THE COURT OF COMMON PLEAS KATHRYN M. HAREREI S$YLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, : NO. 08-1936 CIVIL TERM v. MT. ZION ASSOCIATES, L.P., : CIVIL ACTION — EQUITY AND FOR Defendant : DECLARATORY JUDGMENT DEFENDANT'S MOTION IN LIMINE AND MOTION TO STAY ACTION AND NOW, comes Defendant, Mt. Zion Associates, L.P., by and through its attorneys, Wix, Wenger &Weidner, P.C., and files this Motion in Limine and Motion to Stay Action, stating as follows: 1. The facts and legal issues of this case have been summarized extensively by the parties in the pre-trial memorandums filed by the parties on November 25, 2013. 2. This case has been assigned to The Honorable Thomas A. Placey for trial. 3. This Motion in Limine is presented to seek the exclusion of evidence relating to the purported exercise of eminent domain by PPL Electric Utilities ("PPL") over land at issue in this case. 4. During the pendency of the motion in limine, this action should be stayed to allow time for Defendant to obtain a counter expert opinion and to wait until PPL actually seeks to exercise eminent domain. 5. In Plaintiffs' Pretrial Memorandum and a report from Plaintiffs' engineer, which was not served on Defendant's counsel until November 21, 2013, Plaintiffs have indicated that they will seek to present evidence of a proposed taking by PPL of a four acre tract of land on Good Hope Road for a substation. Plaintiffs seek to 3 argue the impact of the threatened taking on Plaintiffs remaining property in relation to the subdivision plan prepared by Defendant in the exercise of its option to purchase. 6. The conclusions of the report of Plaintiffs' engineer are conditioned on whether or not the taking actually occurs. 7. Importantly, PPL has indicated that it is willing to consider alternative site locations for its substation. 8. In fact, the parties have been cooperating in negotiating with PPL for an alternative site location, as both parties have an interest in the location of the substation (particularly, that it not be located on Good Hope Road), and PPL has indicated that it will consider alternative sites. 9. Evidence of the taking of this land is irrelevant because when the option to purchase real property was exercised by Defendant, and wrongfully refused by Plaintiffs in February, 2005, the proposed taking was not in existence. 10. In other words, Plaintiffs seek to present evidence that the subdivision plan proposed by Defendant in 2005 is rendered unreasonable by the existence of circumstances in 2013 but that did not exist at the time of the exercise. 11. Moreover, the fact that the proposed taking has not occurred and may not occur renders any evidence relating to the effect of the taking as unreliable and irrelevant. 4 12. Further, in the event that any land is taken by PPL in an exercise of eminent domain, the impact on the value of the property, and the remaining property not taken, will be part of any compensation to the owner. 13. In other words, Plaintiffs are, in effect, seeking something akin to a double- recovery: they seek to have the threat of eminent domain taken into consideration as to whether Defendant's subdivision plan unreasonably interferes with the remaining property, and then, subsequently, in the exercise of eminent domain, any impact on the remaining property will be taken into consideration for valuation purposes. 14. In the event that PPL does not exercise eminent domain, or negotiates for the placement of the substation at a different location, Defendants would be prejudiced by the introduction of evidence purportedly against the reasonableness of their plan that did not occur. 15. Accordingly, because the threat of the taking of a portion of property at issue in this case (1) was not an existing circumstance at the time of the exercise of the option and therefore cannot be used as evidence of whether the proposed subdivision plan unreasonably interfered with the remaining property; (2) has not occurred, and may not occur at all, because PPL's representatives have indicated a willingness to consider alternative site locations under certain conditions; and, (3) the conclusions of Plaintiffs' engineer are conditioned on whether or not the taking actually occurs, any such evidence is both irrelevant and highly prejudicial to Defendant. 5 • 16. As aforesaid, Plaintiffs did not produce a letter report from their engineer until November 21, 2013, a mere four days before the filing of pre-trial statements. 17. The report takes positions that were not raised before and were contrary to prior deposition testimony; namely, that access from Good Hope Road and a single access to the roadway system in Defendant's property (Technology Parkway) would allow for the development of Plaintiff's property for office/professional use. 18. Defendant now needs time to address Plaintiffs' late report and testimony and does not believe that there is sufficient time to do so with the pending trial. 19. Moreover, if Plaintiffs insist that the threat of the taking, which PPL has already indicated is negotiable, is relevant evidence, then the trial in this action must be stayed until such time as the taking actually occurs or negotiations as to an alternative site are concluded. 20. The undersigned has sent this Motion and the proposed order to Plaintiffs counsel for consent, which was denied, although Plaintiffs counsel indicated that they were agreeable to the April, 2014, trial dates mentioned in the telephone conference call between Judge Placey and counsel. 21. Defendant appreciates Plaintiffs counsel's willingness to use the April, 2014, dates for trial in order for Defendant to procure expert testimony. However, though Defendant accepts this an an alternative, it is preferable that the case be removed from the trial list until such time as the exercise of eminient domain is completed (if it occurs at all). 6 • WHEREFORE, Defendant, Mt. Zion Associates, L.P., respectfully requests that this Honorable Court enter an order granting its Motion in Limine and Motion to Stay Action, ordering that this action be stayed until further order of Court, or, alternatively, setting the trial dates for April, 2014, to give time for Defendant to procure expert testimony, and further ordering that any evidence of the proposed taking of any property by PPL is inadmissible. Respectfully submitted, Wix, Wenger &Weidne Date: (7f)6/)3 By: J._ ►�� . Clark, I.D. # 89277 • orth Second Street .O Box 845 Ha risburg, PA 17108 - 0845 (717) 234-4182 Attorneys for Defendant 7 M JOHN C. HARBILAS and • IN THE COURT OF COMMON PLEAS KATHRYN M. HARBILAS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, . : NO. 08-1936 CIVIL TERM v. . • MT. ZION ASSOCIATES, L.P., : CIVIL ACTION — EQUITY AND FOR Defendant • DECLARATORY JUDGMENT CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion was served via regular mail at the following address: David Lehman, Esquire Kandice Kerwin Hull, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 spectf ly Submitted, WIX, WE GER &W I NE'- 1 0 if Date: PI bi ao l� Ly: _I' A ' \,, ,Paul- A. Crib•- , Par egal 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 8 JOHN C. HARBILAS and KATHRYN M. ��- � J '` - 4r HARBILAS �iiu �� , ; �. �itt Plaintiffs IN THE COURT OF COMMON PLEAS v. OF THE NINTH JUDICIAL DISTRICT MT. ZION ASSOCIATES, L.P., 2008-01936 CIVIL TERM Defendant IN RE: DEFENDANT'S MOTION IN LIMINE AND MOTION TO STAY ACTION ORDER OF COURT 2 1 upon consideration f he AND NOW, thi�� day of December 0 3, upo of t Defendant's Motion in Limine and Motion to Stay Action, a RULE is issued upon Plaintiff to show cause why the relief requested should not be granted. DEFENDANT shall effectuate service of this Order of Court upon Plaintiffs. RULE RETURNABLE twenty (20) days from the date of service. 4 Thoma'A. Placey C.P.J. istribution List: Zreffrey C. Clark, Esq. ✓ David Lehman, Esq. C^ipisES Pl_kt[EL L iNty 7... .,_, _..1 .■. :71) -..e •., r 4? . r.0 P P ppvppp.. Kandice Kerwin Hull Attorney I.D. No. 86345 J r.i - CL-1 McNEES WALLACE & NURICK LLC P.O. Box 1166, 100 Pine Street PPS7LiViA Harrisburg, PA 17108-1166 Phone: 717-237-5452 Fax: 717-260-1698 David E. Lehman Attorney I.D. No. 15243 Lehman Mediation Service, LLC 2903 North Second Street Harrisburg, PA 17110 Attorneys for Plaintiffs JOHN C. HARBILAS and : IN THE COURT OF COMMON PLEAS KATHRYN M. HARBILAS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : NO. 08-1936 CIVIL TERM v. MT. ZION ASSOCIATES, L.P., : CIVIL ACTION—EQUITY AND FOR Defendant. : DECLARATORY JUDGMENT PLAINTIFFS' ANSWER TO DEFENDANT'S MOTION IN LIMINE AND MOTION TO STAY ACTION Plaintiffs John C. and Kathryn M. Harbilas ("Harbilas"), by their counsel, make the following responses to Defendant's Motion in Limine and To Stay Action. 1. Admitted. 2. Admitted. 3. Denied. It is appropriate to allow Harbilas to introduce evidence regarding the acquisition of the portion of the property at issue in this case by PPL Electric Utilities ("PPL"). Four months ago, PPL advised Harbilas that it intended to place an electric substation on the land owned by Harbilas, which land is, at least in part, the subject of this litigation. PPL selected a 4+ acre parcel along Good Hope Road at the southern edge of the Harbilas land for its substation. PPL must construct the substation in order to serve business and commercial properties in the 1 area, including most immediately the Pinnacle Hospital facility now being constructed along Technology Parkway. PPL has told Harbilas it must have the new service station constructed and operational by December of 2014. Accordingly, PPL's land acquisition is on an urgent timetable. PPL made an offer to purchase the 4 acre site in September. Harbilas immediately informed Mt. Zion's counsel about this offer, but declined to sell any Good Hope Road frontage to PPL. In the hope of persuading PPL to look at an alternate site (away from the Good Hope Road frontage), Harbilas had an independent valuation done of the property in question, and furnished PPL with that valuation in early December. A copy of that evaluation was simultaneously provided to counsel for Mt. Zion. PPL has indicated it would be willing to pay Harbilas the value of the 4 acre parcel as determined by Harbilas' evaluation, if it could promptly acquire that particular site. The Harbilas evaluation did not persuade PPL to take an alternate, less disruptive site. PPL offered to pay the higher amount, but advised that if it cannot reach an agreement, it will exercise statutory powers of condemnation. The threat to take 4 acres of Harbilas' land frontage on Good Hope Road would have a significant impact on the residual tract. 4. Denied. There is no need to delay the trial of this matter beyond the previously scheduled April trial dates. Harbilas anticipates that PPL will act very quickly to take its preferred site—since it has said it needs to begin construction quickly. If PPL uses its power of eminent domain (granted under Pennsylvania law), the taking will be effective upon filing of the declaration of taking. Accordingly, Harbilas believes these matters will be clarified and finalized within a month or two. Mt. Zion counsel has indicated that they are engaging an appraiser (and have selected their appraiser), to assess what impact the proposed PPL taking (and use) will have on Mt. Zion's interest. For that reason, we have advised Mt. Zion's counsel that 2 we would not oppose its request that the matter not proceed to hearing in the period of February 3 —7, 2014. The Court in its telephone conference with counsel on November 27, 2013, indicated that that week might be available, contingent on developments in the jury trial list of cases for that week. The Court has given counsel the dates of April 2, 3, 4, and 7, 2014, as a "back-up." Harbilas requests that the matter remain on the Court's calendar for the April 2014 dates, as assigned. Defendant's counsel has adequate time to work with its appraiser and to consider what testimony, if any, it may wish to bring to the Court's attention, as it may affect the issues pending in this case. Moreover, Harbilas anticipates that PPL's actions to acquire a portion of the Harbilas property will be substantially complete by that time. 5. Admitted in part and denied in part. It is admitted that Harbilas intends to introduce evidence regarding the acquisition of a portion of the property at issue by PPL. It is denied that such evidence should be excluded. Preliminarily, Harbilas suggests that it is premature for the Court to consider any motion in limine regarding testimony either from Harbilas' engineer or valuation expert. The relevance of the potential testimony will become apparent at trial at the time the Court considers Mt. Zion's request for specific performance of its option exercise. Moreover, if the Court did choose to consider the issue at this moment, the Court should conclude that the testimony is relevant. In briefest summary, the evidence is relevant because of the relief sought by Mt. Zion. Mt. Zion will ask the Court to permit it to acquire 23.3 acres identified by it in its January 2005 subdivision plan. That plan, as the Court will see, would leave Harbilas about 400' of frontage on Good Hope Road. If, at the time the Court considers that request, PPL has taken the remaining 400' of frontage on Good Hope Road, then the residual Harbilas tract will be entirely landlocked—except for such access as it can get onto Technology Parkway. The expert testimony will show that such a situation would not 3 permit the reasonable development of the remaining Harbilas parcel and will, therefore, be relevant to show that Mt. Zion's requested relief is inconsistent with the terms of the parties' agreement requiring that Harbilas be able to develop any land remaining with him after acquisition of a portion by Mt. Zion. 6. Denied as stated. The testimony and opinions to be offered at trial will address the realities on the ground at the time the Court is asked to exercise its equitable powers. The Court must have knowledge of the current state of the property in order to fashion an appropriate equitable remedy. Harbilas' objection to Mt. Zion's 2005 attempt to exercise the option was based, fundamentally, on insufficient access from the residual Harbilas tract out to Technology Parkway, a road controlled by Mt. Zion. Without adequate assurance that streets extending the then-existing roadway to the border of the residual parcel, Harbilas would have been(and still would be) severely impaired with respect to any future development. Harbilas contends that the underlying Option Agreement with Mt. Zion promised reasonable interconnection with Mt. Zion's road network. The Court, acting in equity, must surely consider what effect will flow from Mt. Zion's requested relief. Again, however, Harbilas contends the Court is not presently in a position to fairly evaluate the arguments as to the full relevance of the testimony, and can only fairly do so at trial. 7. Denied. PPL has most recently said it wants the Good Hope Road site, and not any alternative. The PPL decision will likely become a certainty early in 2014. 8. Denied. As stated above, the parties' arguments to PPL to select an alternative to the Good Hope Road site have not been fruitful. 9. Denied. For the reasons argued above, the evidence to be proffered at the hearing in this matter will be very relevant to the request by Mt. Zion for the equitable relief of specific 4 performance. The very problem which formed the basis of Harbilas' objection in 2005 —that any alternate access out to Good Hope Road is unreliable and highly inferior to two points of access/ connection onto Technology Parkway—is illustrated by the PPL taking. This is not a new issue; rather, it is evidence of the fundamental issue in the case—whether there is adequate access to permit reasonable development of the residual Harbilas parcel. Furthermore, the current condition of the land is relevant to any decision issued by the Court in equity. 10. Denied. As argued above, the concerns for proper access have been in this case— and central to the dispute—since 2005. 11. Denied. The potential relevance of the PPL taking can be fully and fairly addressed by the Court at the time the matter of the hearing in April 2014. 12. Denied. It should be noted that the parcel identified by PPL is not included within the boundaries of the 23.3 acre tract which Mt. Zion identified in its option exercise! Nonetheless, Mt. Zion has filed a lis pendens affecting the entire parcel, and will assert an interest in any funds which might derive from the PPL taking of Harbilas' land. That lis pendens is a cloud on Harbilas' title, and will generate further issues which may require the Court's intervention to resolve. It is facile for Mt. Zion to assert that "any compensation to the owner," will be the simple resolution of a PPL condemnation. Mt. Zion is arguing in this case that, although it never sought to take anything other than 23.3 acres (out of the 100 acre farm), it should have an ongoing basis to consider doing so, now, and for three years after this litigation is concluded. Additionally, the payment of compensation cannot be effectuated without some resolution of the disputes in this case. 13, Denied. Harbilas is not seeking a double recovery; he wants a full and final adjudication of disputes with Mt. Zion. The recent intervention of PPL—with its announced 5 intention to condemn the road frontage that would remain if Mt. Zion took the designated 23.3 acres—threatens a double loss to Harbilas. Mt Zion will argue to the Court that Harbilas has adequate access out to Good Hope Road. Surely, Harbilas should have the opportunity to prove that is not the case. 14. Denied. Mt. Zion will not be prejudiced by having to address the reality that exists on the ground at the time of hearing, and the reasonable prospects for the Harbilas' tract. Moreover, by the April trial date, Mt. Zion will have had sufficient time to prepare to address this issue and has, indeed, already admitted that it has retained an expert to testify regarding the topic. 15. Denied. For the reasons argued above, it is premature to move to exclude evidence of matters that are imminent, are highly likely to take place well before date of hearing, and that bear on the central dispute regarding exercise of the option—the issue of access. 16. Denied. Harbilas disagrees with the characterizations of the November 21, 2013 letter; the subjects addressed were points covered in a deposition of Mt. Zion's engineer on November 11, 2013, and are in themselves not controversial or disputed. 17. Denied. The report does not vary or contradict prior deposition testimony. 18. Harbilas does not oppose a release of the February 2014 contingent hearing dates, in favor of the April 2014 dates already reserved on the Court's calendar. Harbilas has advised Mt. Zion's counsel of that position. 19. Harbilas does not anticipate offering any hearsay testimony or testimony regarding negotiations with PPL. Again, it is anticipated that PPL will move to condemn the parcel quickly, because it needs the site, and because Harbilas will not voluntarily convey the frontage on Good Hope Road. 6 20. Agreed. Harbilas requests the Court to hold the April 2014 dates for hearing in this matter. The disputes between these parties have been ongoing since 2005; they have not yielded to several rounds of negotiation. The status quo is favored by Mt. Zion—it has not spent a penny to acquire the Harbilas 23.3 acre site; and it does not have any need for the ground, because its office park land sales have been slower than anticipated. So, in effect, it views Harbilas as carrying the cost of its future land inventory (assuming it has a valid and enforceable right under the option agreement.) 21. For the reasons stated above, Harbilas requests the Court to keep the case on its April 2014 schedule, and to schedule a status conference with counsel 45 days before trial. WHEREFORE, Plaintiffs request the Court deny the Motion as presented and to set firmly the trial of the matter for April 2014. Respectfully submitted, McNEES WALLACE&NURICK LLC By /,.64J .._ Kandice K; win Hull I.D. No. 86345 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Tel: (717) 232-8000 Fax: (717) 237-5300 and David E. Lehman I.D. No. 15243 Lehman Mediation Service, LLC 2903 North Second Street Harrisburg, PA 17110 Attorneys for Plaintiffs Date: January 6, 2013 7 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served upon the following via first class mail, postage prepaid upon: Jeffrey C. Clark, Esq. Wix, Wenger& Weidner 508 North Second Street PO Box 845 Harrisburg, PA 17108-0845 / ,iIA A Ao • I d. Jam. _de Ai .ndice Kerwin Hull Dated: January 6, 2014 �_� (JII iiti fl JOHN C. HARBILAS AND �n :4 KATHRYN M. HARBILAS 41,-)14- . Plaintiff IN THE COURT OF COMMON PLEAS v. OF THE NINTH JUDICIAL DISTRICT MT. ZION ASSOCIATES, L.P., 2008-01936 CIVIL TERM Defendant IN RE: NON-JURY TRIAL ORDER OF COURT AND NOW, this 7t" day January 2014, the Non-jury trial assigned to this court, will commence on 2 April 2014 at 9:00 a.m. in Courtroom No. 6 of the Cumberland County Courthouse, Carlisle, Pennsylvania. Trial is consecutively scheduled for four (4) days through 7 April 2014. BY THE COURT Thomas A. Placey C.P.J. Distribution: Kandice Kerwin Hull Esq. °�` C._led David E. Lehman, Esq. �QPIfS Jeffrey C. Clark, Esq. II/ ` y JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs v. r iLED-1;,- r!u. OF THE URO I HOHO rAr 7014 11AY 23 Ni 1: 05 CUMBERLAND COUNTY PENNSYLVANIA nizt Count? of eumheri nb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT MT. ZION ASSOCIATES, L.P., Defendant 2008-01936 CIVIL TERM IN RE: BENCH TRIAL ORDER OF COURT AND NOW, this 23rd day of May 2014, following a bench trial, the following limited but salient findings of fact are made in advance of the decision: 1. Plaintiff John C. Harbilas (hereinafter, collectively with Plaintiff Kathryn M. Harbilas, "Plaintiffs") is a multifaceted professional, whose enterprises include a public accounting service and a licensed real estate brokership. 2. Plaintiff Kathryn M. Harbilas is the wife of John C. Harbilas and was brought into this suit solely by her husband's assignment of his interest for tax purposes. 3. Mrs. Harbilas' involvement in this action is insignificant to this decision. 4. Mt. Zion Associates, L.P. (hereinafter "Defendant") is a limited partnership entity set up for the development of the tracks of lands bordering Mt. Zion Church in Hampden Township and is a subset of the corporation owned by the same limited partners. 5. One of the tracks bordering Mt. Zion Church was the Deimler Farm, owned and operated by the recently deceased Eugene R. Deimler, Sr., (hereinafter "Farmer Deimler"). 6. The Deimler Farm consisted of approximately 166 contiguous acres. 7. Farmer Deimler entered into several option contracts with Plaintiffs for the sale of the land. 8. The first option contract, with husband only, was a ten-year option dated 15 March 1988 but recorded 10 May 1988. Plaintiffs' Ex. 4. 9. The second option contract was an eight -year -plus option to buy agreement dated 7 January 1997 that would to expire on 15 March 2005. Plaintiffs' Ex. 5. 10. In the interim period, Plaintiffs had the Deimler Farm subdivided into two tracks of land of approximately 64 acres and 102 acres. 11. At issue in this action are the remaining 102 acres as Defendant has already properly exercised its option on the 64 acres. 12. Defendant and Plaintiffs entered into a six-year Real Estate Option Agreement dated 23 July 1996. Plaintiffs' Ex. 1. 13. This Agreement was supplemented by a Restated Second Amendment to Real Estate Option Agreement dated 31 October 1997. Plaintiffs' Ex. 2. 14. Thereafter, these Agreements were supplemented by an August 2002 Amendment to Real Estate Option Agreement dated 12 August 2002 which would expire on 15 February 2005. Plaintiffs' Ex. 3. 2 15. Plaintiffs entered into another contract, titled Agreement For The Sale of Real Estate, with Farmer Deimler on 9 December 2004 that detailed the acreage purchased to-date from Plaintiffs' payments and for the outright purchase of the remaining acreage with the final payment to be made no later than 15 March 2008. Plaintiffs' Ex. 7. 16. The remaining Deimler Farm parcel was ultimately conveyed to Plaintiffs by deed dated 16 December 2008. Plaintiffs' Ex. 9. 17. The Agreement For The Sale of Real Estate is not an additional option to buy contract that would entitle Defendant to more time to purchase under the terms of its various Agreements with Plaintiffs. 18. Defendant requested Plaintiffs' signatures on a subdivision plan by letter dated 15 December 2004. Plaintiffs' Ex. 26 and PD04. 19. Plaintiffs, in breach of their stated contractual duties, unreasonably withheld, delayed or conditioned their consent to this subdivision plan and the two other subdivision plans subsequently submitted by Defendant for the exercise of the option to purchase not Tess than twenty (20) acres of contiguous real estate. Plaintiffs' Ex. PD04, PD05, and PD06. 20. Plaintiffs' engineering approval and position on the approval of Hampden Township to Defendant's subdivision plan are not contractual requirements. 21. Defendant properly exercised its option to purchase not less than twenty (20) acres of contiguous real estate that adjoined its previous purchase. 22. All of these subdivision plans call for a minimum of two points of full ingress and egress to and from Plaintiffs' remainder tract of land. 23. The remaining acreage not purchased by Defendant under the option, the remainder property, is subject to the Defendant's Declaration of Protective Covenants for Cumberland Technology Park by the terms of the parties Agreements. 24. A lis pendens action has been filed by Defendant concerning the real estate at Civil Term 2005-01279 that has prevented Plaintiffs and Farmer Deimler from use of the property beyond its continued agricultural purpose. Following the application of the law to the above facts, it is ORDERED and DIRECTED that: 1. Defendant SHALL choose from any one of the three (3) properly presented subdivision plans [PD04, PD05, or PD06] the acreage it now wishes to purchase from Plaintiffs; 2. The selected plan SHALL be subject to Defendant's modification, as necessary to meet the conditions now existing, and any review and approval of Hampden Township as required by law; 3. Plaintiffs SHALL sign for consent, within five (5) business days of any request by Defendant, the chosen plan for submission to Hampden Township for prerequisite approval; 4. The subdivision plan SHALL have two points of full ingress and egress for access to the remainder property; 4 5. Any future subdivision plan SHALL provide for emergency -only access by Hampden Township from its Good Hope Road property to Technology Parkway; 6. The remainder property SHALL be subject to the Defendant's "Declaration of Protective Covenants for Cumberland Technology Park" as recorded, which SHALL NOT unreasonably withhold approval; and 7 Plaintiffs MAY construct infrastructure and roadways at the locations designated in the chosen subdivision plan through Defendant's property up to the remainder property, at Defendant's ultimate expense, if Defendant has not already provided such improvements by the time Plaintiffs are ready to develop the remainder property. No further relief is granted at this time. Distribution List: ffrey C. Clark, Esq. avid E. Lehman, Esq. • lfzU sia.2/1 y 5 -COURT, Thoma- A. Placey C.P.J. s„.1 rigitdiAY27 Ati : 30 CUMBERLAND COUNTY JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs v. MT. ZION ASSOCIATES, L.P., Defendant Countp of €umbertona IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2008-01936 CIVIL TERM IN RE: COURT EXHIBITS ORDER OF COURT AND NOW, this 2�day of May 2014, the Court sua sponte admits the following exhibits to the record: 1) The CD entitled "Plaintiffs' Exhibits Admitted At Trial", dated 10 April 2014, which contains only the exhibits presented by Plaintiffs and admitted at the April 2014 trial is admitted as Court's Exhibit 1. 2) The CD entitled "Def. Exhibits Used At Trial", dated 17 April 2014, which contains only the exhibits presented by Defendant and admitted at the April 2014 trial is admitted as Court's Exhibit 2. Distribution List: ,,/Jeffrey C. Clark, Esq. ,/David E. Lehman, Esq. Thomas A. Placey C.P.J. Kandice Kerwin Hull Attorney I.D. No. 86345 McNEES WALLACE & NURICK LLC P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 Phone: 717-237-5452 Fax: 717-260-1698 David E. Lehman Attorney I.D. No. 15243 Lehman Mediation Service, LLC 2903 North Second Street Harrisburg, PA 17110 -2 3: COU,T1I PENNSYLVANIA Attorneys for Plaintiffs JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-1936 CIVIL TERM MT. ZION ASSOCIATES, L.P., : CIVIL ACTION — EQUITY AND FOR Defendant. : DECLARATORY JUDGMENT PLAINTIFFS MOTION FOR POST-TRIAL RELIEF Pursuant to Pennsylvania Rule of Civil Procedure 227.1, Plaintiffs John C. Harbilas and Kathryn M. Harbilas move the Court to amend paragraphs 19 and 21 of its findings of fact set forth in the Order of Court issued May 23, 2014, in the above action as stated below, on the following bases and for the following reasons: 1. The Court's findings (a) in paragraph 19 that Plaintiffs breached their contractual duty to Defendant by unreasonably withholding or conditioning their consent to any of the three 1 subdivision plans submitted by Defendant, and (b) in paragraph 21 that "Defendant properly exercised its option to purchase..." are inconsistent with the Court's adjudication in its Ordering paragraph 7 (at page 5 of the adjudication), in light of the undisputed documentary evidence in the record. 2. The Court has adjudicated that Defendant Mt. Zion Associates, L.P. ( "Mt. Zion ") is contractually obligated to pay the costs of infrastructure and road improvements that will connect the residual Harbilas tract through "two points of full ingress and egress" to the Mt. Zion lands (at page 4 of the adjudication). 3. It is an uncontroverted fact that Mt. Zion disavowed any obligation to construct connecting roads or infrastructure between its existing facilities along Technology Parkway and any Harbilas' residual land. (See, e.g., trial exhibits 33 and 43, Mr. Weidner's explicit position, confirmed in his courtroom testimony.) 4. The documentary record further shows that Plaintiffs' objections to the several subdivision plans was founded in large part on Mt. Zion's refusal to commit to construct connecting roads and infrastructure. (See, e.g., trial exhibits 41 and 48, Mr. Foreman's explicit statements, confirmed in his courtroom testimony.) 5. Plaintiffs contend that Mt. Zion's explicit and categorical rejection of its contractual duty to construct connecting roads and infrastructure, as declared in January of 2005, should be found to be a justification and reasonable basis for Iarbilas' refusal to then sign or otherwise consent to Mt. Zion's subdivision plans, which were premised on a denial of its contractual duty. 2 6. To that extent, and on that basis, the Harbilas consent was not unreasonably withheld, but was justified; and to that extent and on that basis, Mt. Zion's attempt to exercise its option was improperly limited, but has now been properly conditioned. Plaintiffs urge the Court to so amend its decision accordingly. In any event, the finding of a current duty to convey on Harbilas should not trigger the provisions of paragraph 17 of the Option Agreement of July 23, 1996, as amended, otherwise launching a claim by Mt Zion for recovery of counsel fees and costs. 7. Plaintiffs also move the Court to explicitly direct that the lis pendens filed by Mt. Zion in Civil Action No. 05 -1279 be stricken and the action marked as dismissed with prejudice. 8. Plaintiffs do not request transcription of the trial testimony at this time. Respectfully submitted, McNEES WALLACE : NURICK LLC Date: June 2, 2014 By Kan. ice Kerwin ull I.D. o. 86345 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Tel: (717) 232 -8000 Fax: (717) 237 -5300 and David E. Lehman I.D. No. 15243 Lehman Mediation Service, LLC 2903 North Second Street Harrisburg, PA 17110 Attorneys for Plaintiffs 3 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by hand delivery, upon the following: Jeffrey C. Clark, Esq. WIX, WENGER & WEIDNER 508 North Second Street P.O. Box 845 Harrisburg, PA 17108 -0845 ` Ate., andice K- win Hull Dated: June 2, 2014 LE_J -of-H Tr t� �1 F t d"t THE PRO HONo TA _,: 7] tJU —9 41 fly. 50 CUMBERLAND COUNT JOHN C. HARBILAS and KATHRYN . tdNSYLVANIA HARBILAS, Plaintiffs v. MT. ZION ASSOCIATES, L.P., Defendant Countp of Cumber(anb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2008-01936 CIVIL TERM IN RE: PLAINTIFFS' MOTION FOR POST -TRIAL RELIEF ORDER OF COURT 13 AND NOW, this _ 1 day of June 2014, upon consideration of Plaintiffs' Motion for Post -Trial Relief, a RULE is issued upon Defendant to show cause why Plaintiffs' Motion should not be granted. PLAINTIFFS shall effectuate service of this Order upon Defendant. A motion to make this Rule absolute will not be entertained until proof of service is filed. Defendant SHALL include a proposed Order with its response. RULE RETURNABLE twenty (20) days from the date of service. _pisiribution List: JJ ey C. Clark, Esq. dice Kerwin Hull avid E. Lehman, Esq. t ES' it 4 CVN Thoma A Piacey C.P.J. 4 Mt. Zion Associates, L.P., Defendant WIX, WENGER & WEIDNER, P.C. Jeffrey C. Clark, I.D. No. 89277 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 !JOH 70.11-1 JL11',1 12 Pri'l 1; 25 CUMBERLAND .COUNTY PEt4NSYLVANIA • JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs, v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-1936 CIVIL TERM MT. ZION ASSOCIATES, L.P., : CIVIL ACTION — EQUITY AND FOR Defendant : DECLARATORY JUDGMENT DEFENDANT'S OBJECTION TO REQUEST FOR TRANSCRIPTION OF TRIAL TRANSCRIPT Defendant, by and through undersigned counsel, hereby objects to the Plaintiffs' request for trial transcript in accordance with Pa.R.C.P. 227.3, stating as follows: 1. It is necessary for the proper disposition of the post -trial motion filed by Plaintiffs to transcribe the following parts of the testimony: a. Testimony of Bruce Foreman; b. Testimony of John Harbilas; c. Testimony of James Cieri; d. Testimony of Dean Weidner; and e. Summation by the parties' counsel. Respectfully submitted, Wix, Wenger & Weidner Date: (( t, By: i I Jeffr_f'C. Clark, I.D. # 89277 508 rt Second Street P.O : ox 845 Harrisburg, PA 17108 - 0845 (717) 234-4182 Attorneys for Defendant F:\daw\3485 - ELYSIAN PARTNERS L.P\8809 - MT. ZION\Documents\Defendant's Objection to Request for Transcription of Trial Transcript.doc 6/9/14 4:20 PM 2 JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs, v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-1936 CIVIL TERM MT. ZION ASSOCIATES, L.P., : CIVIL ACTION — EQUITY AND FOR Defendant : DECLARATORY JUDGMENT CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Objection to Request for Transcription of Trial Transcript was served via regular mail at the following address: David E. Lehman, Esquire Lehman Mediation Service, LLC 2903 North Second Street Harrisburg, PA 17110 Kandice Kerwin Hull, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Michelle Eline, Court Reporter Court Reporting Office 1 Courthouse Square Carlisle, PA 17013 Melissa H. Calvanelli, Court Administrator 1 Courthouse Square, Suite 301 Carlisle, PA 17013 3 of Date: (Q nla�� Dennis E. Lebo, Clerk of Court 1 Courthouse Square, Room 205 Carlisle, PA 17013 Respectfully Submitted, By: - \y'aul- . CritSben, Paralegal 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 4 JE JON I 2 PN '15 CUMBERL 4 ND PENNS YL VACOUNNIA Mt. Zion Associates, L.P., Defendant WIX, WENGER & WEIDNER, P.C. Jeffrey C. Clark, 1.D. No. 89277 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs, V. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-1936 CIVIL TERM MT. ZION ASSOCIATES, L.P., : CIVIL ACTION — EQUITY AND FOR Defendant : DECLARATORY JUDGMENT DEFENDANT'S OBJECTION TO REQUEST FOR TRANSCRIPTION OF TRIAL TRANSCRIPT Defendant, by and through undersigned counsel, hereby objects to the Plaintiffs' request for trial transcript in accordance with Pa.R.C.P. 227.3, stating as follows: 1. It is necessary for the proper disposition of the post -trial motion filed by Plaintiffs to transcribe the following parts of the testimony: a. Testimony of Bruce Foreman; b. Testimony of John Harbilas; c. Testimony of James Cieri; d. Testimony of Dean Weidner; and 1 e. Summation by the parties' counsel. Respectfully submitted, Wix, Wenger & Weidner Date: 6/11 / By: Jeffr;jjC. Clark, LD. # 89277 508 rt Second Street P.O ox 845 Harrisburg, PA 17108 - 0845 (717) 234-4182 Attorneys for Defendant F:\daw\3485 - ELYSIAN PARTNERS L.P\8809 - MT. ZIONIDocuments\Oefendant's Objection to Request for Transcription of Trial Transcript.doc 6/9/14 4:20 PM 2 JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs, V. : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-1936 CIVIL TERM MT. ZION ASSOCIATES, L.P., : CIVIL ACTION — EQUITY AND FOR Defendant : DECLARATORY JUDGMENT CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Objection to Request for Transcription of Trial Transcript was served via regular mail at the following address: David E. Lehman, Esquire Lehman Mediation Service, LLC 2903 North Second Street Harrisburg, PA 17110 Kandice Kerwin Hull, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Michelle Eline, Court Reporter Court Reporting Office 1 Courthouse Square Carlisle, PA 17013 Melissa H. Calvanelli, Court Administrator 1 Courthouse Square, Suite 301 Carlisle, PA 17013 3 Dennis E. Lebo, Clerk of Court 1 Courthouse Square, Room 205 Carlisle, PA 17013 Respectfully Submitted, WIXC, WqIGEREI ER By: Paula . Cribben, Paralegal 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Kandice Kerwin Hull Attorney I.D. No. 86345 McNEES WALLACE & NURICK LLC P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 Phone: 717-237-5452 Fax: 717-260-1698 David E. Lehman Attorney LD. No. 15243 Lehman Mediation Service, LLC 2903 North Second Street Harrisburg, PA 17110 UF -47] vt 21114 JUN 12 1: 1 CUNBERLAND COUNty PENNSYLVANIA (1 Attorneys for Plaintiffs JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs V. MT. ZION ASSOCIATES, L.P., Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-1936 CIVIL TERM : CIVIL ACTION — EQUITY AND FOR : DECLARATORY JUDGMENT CERTIFICATE OF SERVICE I, Kandice Kerwin Hull, hereby certify that a true and correct copy of the Order dated June 9, 2014, a copy attached hereto, was served by first class mail, postage pre -paid, on the date set forth below, Upon the following: Jeffrey C. Clark, Esq. WIX, WENGER & WEIDNER 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 McNEES WALLACE & NURICK LLC By Date: June 11, 2014 ,,,//1 h andice K rwin Hu I.D. No. 8.345 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Tel: (717) 232-8000 Fax: (717) 237-5300 and David E. Lehman I.D. No. 15243 Lehman Mediation Service, LLC 2903 North Second Street Harrisburg, PA 17110 Attorneys for Plaintiffs 20114 JUN 79 Mi It ,50 CUMBERLAND COUNTY PENNSYLVANIA JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs v. MT. ZION ASSOCIATES, L.P., Defendant Countp of €umbertanb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2008-01936 CIVIL TERM IN RE: PLAINTIFFS' MOTION FOR POST -TRIAL RELIEF ORDER OF COURT AND NOW, this g day of June 2014, upon consideration of Plaintiffs' Motion for Post -Trial Relief, a RULE is issued upon Defendant to show cause why Plaintiffs' Motion should not be granted. PLAINTIFFS shall effectuate service of this Order upon Defendant. A motion to make this Rule absolute will not be entertained until proof of service is filed. Defendant SHALL include a proposed Order with its response. RULE RETURNABLE twenty (20) days from the date of service. Distribution List: Jeffrey C. Clark, Esq. Kandice Kerwin Hull David E. Lehman, Esq. Thoma A Placey C.P.J. CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by hand delivery, upon the following: Jeffrey C. Clark, Esq. WIX, WENGER & WEIDNER 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 andice Ke win Hull Dated: June 11, 2014 s ` u (:`=,- 77!!.f Jig¢ c,u'`'113r rf ' tvN }`L At I}1 `f f JOHN C. HARBILAS and : IN THE COURT OF COMMON PLEAS KATHRYN M. HARBILAS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, : NO. 08-1936 CIVIL TERM v. MT. ZION ASSOCIATES, L.P., : CIVIL ACTION — EQUITY AND FOR Defendant : DECLARATORY JUDGMENT DEFENDANT'S PETITION FOR ASSESSMENT OF ATTORNEY'S FEES AND COSTS AND NOW, comes Defendant, by and through its attorneys, Wix, Wenger & Weidner, P.C., and files this Petition for Assessment of Attorneys' Fees and Costs, stating as follows: 1. On March 27, 2008, Plaintiff filed a Complaint in Equity and for Declaratory Judgment. 2. On January 14, 2010, Defendant filed an Answer with New Matter and Counterclaim ("Answer"). 3. In its Answer, Defendant identified the provision of the governing agreement between the parties that entitled Defendant to an award of attorneys' fees and costs, and request entry of the same. 4. Paragraph 17 of the Real Estate Option Agreement (a copy of which is attached hereto as Exhibit "A") states: 2 e. "Upon default of breach of this Agreement by Seller [("John Harbilas")], Buyer [("Mt. Zion Associates, L.P.")] shall . . . be entitled to recover from Seller Buyer's reasonable attorneys' fees and costs, incurred as a consequence of Seller's default." s 5. A trial was held on April 2nd -4th, and 7th, before the Honorable Thomas A. Placey. 6. On May 23, 2014, Judge Placey entered an Order of Court, which found, in pertinent part, that Plaintiffs breached their contractual duties to sign the presented subdivision plan and "unreasonably withheld, delayed or conditioned their consent to" the various subdivision plans submitted by Defendant for exercise of its option to purchase land from Plaintiffs. 7. Defendant is entitled to recover its reasonable attorneys' fees and costs in this case. 8. Prior to and during trial, Defendant's counsel raised the issue of attorneys' fees and costs and suggested that evidence relating thereto be presented in the event of a successful verdict, which procedure was approved by the Court. 9. Defendant should be awarded attorneys' fees and costs relating to the litigation and for all work performed by Defendant's attorneys, engineers, and other professionals, which was necessitated by Plaintiffs' failure to consent to Defendant's plans. 10. Plaintiffs have filed a post-trial motion that impacts this Petition. 11. Defendant requests that the impact of that post-trial motion be considered in setting a briefing schedule and evidentiary hearing date for this Petition. 3 i , 12. Defendant's legal expenses and costs are $270,069.64, not including anticipated expenses and costs relating to Plaintiff's motion for post-trial relief and this Petition. Defendant's engineering and expert costs are $56,886.79. Copies of billing reports outlining the time expended will be presented at a hearing and provided to opposing counsel in a timely manner prior thereto. 13. Defendant incurred these expenses as a consequence of the breach of contract by Plaintiffs. WHEREFORE, Defendant respectfully requests that this Honorable Court enter an Order awarding attorneys' fees and costs in an amount to be proven at an evidentiary hearing. Respectfully submitted, WIX, WENGER &WEID ER Date: billiiil By: if ir Jeff f irk, I.D. # 89277 50: ii o 1 lecond Street P.• ,:ox 845 Harrisburg, PA 17108 - 0845 (717) 234-4182 Attorneys for Defendant 4 JOHN C. HARBILAS and : IN THE COURT OF COMMON PLEAS KATHRYN M. HARBILAS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, : NO. 08-1936 CIVIL TERM v. MT. ZION ASSOCIATES, L.P., : CIVIL ACTION - EQUITY AND FOR Defendant : DECLARATORY JUDGMENT CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Petition was served via regular mail at the following address: David Lehman, Esquire Lehman Mediation Services, LLC 2903 North Second Street Harrisburg, PA 17110 Kandice Kerwin Hull, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Res15-e-ally Submitted, ( WIX, WE GER &W •NE- \ Date: (SP\ a014 pct 411 ul- A. Gribbe ,-Paralegal 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 5 r EXHIBIT "A" °4 PLAINTIFF'S EXHIBIT REAL ESTATE OPTION AGREEMENT THIS REAL ESTATE OPTION AGREEMENT ("Agreement") is made this 23rd day of duly, 1996, by and between Mt. Zion Associates, L.P. , a Pennsylvania limited partnership, with its principal • ' office at 20 Erfbrd Road, Suite 201, Lemoyne, PA 17043, or its nominee ("Buyer") and John C. Harbilas, of 817 Mandy Lane, Camp Hill, PA 17011 ("Seller") . r RECITALS: The background to this Option is as follows: R-1. Eugene R. Deimler, Sr. ("Deimler") is the owner of property known as the Deimler Farm located adjacent to Good Hope Road in Hampden Township, Cumberland County, Pennsylvania, as shown on a Preliminary/Final Subdivision Plan of Deimler Farm • by Act One Con$ultants, Inc. dated August 22, 1995 (the "Subdivision Plan") . R-2. Seller is the owner or beneficial owner under a valid Agreement of Sale or Option Agreement of the Deimler Farm, which is adjacent td lands of Buyer; and R-3. The patties, by executing this agreement, intend to create an Option in Buyer to purchase a portion of the Deimler Farm; said portion being identified as Lot 11 on the Subdivision Plan less, however, a portion of Lot 11 not exceeding four acres, fronting on Good Hope Road, to be { design ted by the' Seller, as more fully provided hereinafter, which Lot f1 is zoned office - professional and located adjacent to said lands of Buyer and being referred to herein as the "Property". 1 • 1 • • NOW, THEREFORE, in consideration of the sum of One ($1.00) Dollar, receipt of which is hereby acknowledged, the Seller, for the period of time herein set forth, hereby gives and grants unto the Buyer the sole and exclusive right and • option to purchase the Property ("Option") , upon the following terms and conditions: • 1. Recitals. The recitals set forth above are incorporated herein' by reference. 2. Option PeriedJExpiration Date. Buyer shall have six (6) years from the date of execution and delivery of a fully executed counterpart (including Joinder) of this Agreement to Buyer (the "Expiration Pate") within which to exercise the Option herein granted, unless extended by written agreement between Seller and Buyer, or as hereinafter provided. 3. Purchase Price. The purchase price to be paid for • the Property shall be based upon the time period (year) following the execution of this Option in which the Buyer exercises the rights to purchase and the acreage (net of any currently existing streets or public rights of way) , calculated by a registered land surveyor to the nearest hundredth of an acre, in the portion of the Property as to which the Buyer has exercised the Option, as follows: Year Price Pep Acre 1 $30,000.00 2 2 $32,000.00 ,+ 3 '•$34,000.00 1. 4 $36,000.00••JZJ\ w7 o �( 5 $38,000.0q --�� 6 $40,000.0d TA) vw • 2 -- • The price per acre or, more particularly, the acreage for which the Buyer makes payment, shall be calculated on the basis of the year in which the payment is actually made to the Seller. For example, if the Buyer makes a payment of $100,000.00 in year one, the Buyer shall be entitled to 3 1/3 acres, but if that • same ($100,000.00) payment is made in year three, the Buyer shall only be entitled to 2.941 acres. Notwithstanding the foregoing provision, in the event settlement is delayed through no fault of the Buyer, and the closing is not held during a year in which a payment is scheduled, then the Buyer shall be entitled to credit for acreage (and the per acre price) , at the price which would have obtained had the closing occurred in the year in which the Buyer was prepared to close (except for the delay not occasioned by the Buyer) . 4. Retained Trapt/Property. The Property shall not include a tract of land fronting on Good Hope Road and containing up to four acres of grouhd, as selected and determined by Seller, with the approval of the Buyer, which shall not be unreasonably withheld or delayed (the "Retained Tract") . The Seller shall designate the boundaries of the • Retained Tract, in a general way, within sixty (60) days following execution of this Agreement, and shall cause a subdivision plan of the Retained Tract to be filed with Hampden Township within ninety (90) days thereafter, at Seller's • expense. Seller shall diligently pursue securing such subdivision approval. Seller agrees that the Retained Tract 3 shall be .subject to a restrictive covenant, enforceable by •• Buyer, that the building to be constructed on the Retained Tract will be a first class office building, or of the style and construction quality of the office buildings in Lemoyne Square. All of Lot #1, other than the Retained Tract, shall constitute the Property. Each portion of the Property as to which Buyer exercises the Option shall be contiguous and adjacent to the property currently owned by Buyer (situated to the north and east of the Property) , shall be a parcel laid out with due regard for the reasonable development of the remaining Property in the event Buyer sloes not exercise its option with respect thereto, and each subsequent option parcel shall be adjacent and contiguous to property then owned by Buyer (or an affiliate of • Buyer) , as Buyer's Property may have been augmented by the prior exercise of this option. To the extent reasonable and feasible, the property line of each parcel to be acquired by Seller shall be at a ninety (90°) degree angle to the right-of-way line for Interstate 81, where such new property line intersects with Interstate 81, unless otherwise agreed by the parties. 5. Inspection Period and Consideration. The Buyer shall have a period of ninety (90) days in which to conduct a feasibility study concerning the purchase of the Property, including environmental studies (Phase I, and, if appropriate, Phase /I, surveys, and other testing as generally referenced in Paragraph 10 hereof) . The Buyer will make any of its feasibility studies relating to the Property or its 4 4 ' characteristics (such as environmental studies, soil testing, • traffic studies and the like) , but not those studies dealing with financing or economic analysis available to Seller within a • reasonable time following Buyer's receipt thereof. The Seller has, at Seller's expense, cause a registered land surveyor to survey the boundaries of the Property (i.e., the portion of the Daimler Farm which is the subject of this Option) which is located within the Office Professional Zone, as defined by the Hampden Township Zoning Ordinance, for the purpose of providing a legal description of the Property. At the execution hereof, the Buyer shall deposit with the Seller the sum of Twenty-Six Thousand ($26,000.00) Dollars, which sum shall be (i) repaid to Buyer in the event Buyer determines, during the feasibility period, that Buyer will not purchase the Property; or (ii) if Buyer determines at the conclusion of the feasibility study period to purchase the Property, then applicable to the purchase price Until the end of the feasibility study period, the • $26,000,00 shall be represented by a promissory judgment note (the "Note!") signed by Seller and Seller's wife. The Note shall be due and payable, without setoff, sixty (60) days following demand, and shall bear interest only following its due date (i.e., 60 days after demand) , such interest to be at the prime rate' of interest as published in The Wall Street Journal or its successor publication, from time to time, plus four (4%) percent. The Note shall be deposited with Buyer's counsel, Wix, Wenger & Weidner, in escrow, and delivered to Buyer only if 5 Buyer determines and gives notice to Seller within the feasibility study period that Buyer has determined not to purchase the Property. At the conclusion of such feasibility study period, the Buyer shall pay to the Seller the additional sum of $74,000.00, which (together with the initial $26,000.00 payment) shall thereupon be non-refundable, but applicable to the purchase price, . if Buyer exercises the Option as to any portion of the Property. Thereafter, on or before the second anniversary of this Option, the third anniversary of this Option, the fourth anniversary of this Option and the fifth • anniversary of this Option, the Buyer shall pay to the Seller the sum of $100,000.00 (each year) . Each of the foregoing • payments shall be non-refundable, but shall be applicable to the purchase price, to the extent Buyer exercises the Option as to any portion of the Property. If the Buyer fails to make any of the foregoing payments, Buyer's Option shall, upon written notice from Seller, terminate, and all monies theretofore paid by Buyer shall be retained by Seller as Seller's total compensation for all rights granted to Buyer and all claims which Seller may have against Buyer, for on account of or related to this Agreement, except for physical damage to the Property, if any, which Buyer may have caused and for which Buyer is and shall remain liable hereunder. 6. property. The option herein granted shall apply to such portion(s) of the Property as determined by Buyer (in 6 AMM • accordance with the provisions hereof) in Buyer's notice to exercise the sante. 7. Notice and Settlement. In the event Buyer exercises the Option, the sole means of exercising the Option Shall be by written notice, describing the Property (which shall be a separately subdivided parcel) , sent by certified mail, return receipt requested, or by overnight delivery service requiring receipt (such as UPS, Federal Express or similar companies) postmarked prior to the Expiration Date, addressed to Seller as provided in Paragraph 26 hereof, notifying Seller in Writing of the exercise thereof and the time and place for settlement, which shall not be less than five (5) days nor more than sixty (60) days after the date of said notice (or shall be held at such other time and place as the parties may agree upon in writing) . Buyer shall make payment of the purchase price for the portion of the Property then being purchased, as to which the Option is exercised, in full at settlement. No single exercise of the Option shall extinguish this option, and the Buyer may exercise the same as to parcels of land subject to the Option on one or more occasions. 8. Failure to Exercise Qption. In the event Buyer fails to exercise the Option, Buyer shall have no further duties . or obligations to Seller, except for physical damage to the Property, if any, which Buyer may have caused and for which • Buyer is and shall remain liable hereunder, and all sums theretofore paid by Buyer to Seller, if any, shall be retained 7 • • • 1 by Seller •as Seller's total consideration for granting the Option. 9. plans. Zoning and Subdivision. Buyer is authorized to procure, at no ekpense to Seller, surveys or other plans showing the perimeter of the Property and such other topographical or engineering data and features as determined necessary or desirable by Buyer. Buyer may, at Buyer's expense, prepare subdivision'and/or land development plans for the Property or any portions thereof. The lot layout, design and • conditions shown on such plans shall be determined by Buyer, with the consent of Seller, which shall not be unreasonably withheld, delayed or conditioned. Following exercise of the Option, Buyer shall have the right, at no expense to Seller, to • have any final subdivision, land development plan or similar plan showing the• Property as to which the Option is exercised recorded, at Buyer's discretion. 10. Covenants of Seller, Seller covenants and agrees •that: (a) Seller is the equitable owner by virtue of Seller's option with Deimler, of the Property. (b) Seller will maintain his option, and take all actions, including payment to Deimler of all sums due to Daimler to enable Seller to sell and convey the Property and to perform all terms and conditions hereof, including delivery of good and marketable title. 8 • (c) Seller will not take any actions or permit any inaction or omission which would create or assist in creating defects in title from the date hereof until the Expiration Date (or settlement, if the Option is exercised) , or which would encumber the Property to an extent and upon such terms as would prevent Seller from performing.this Agreement. Any mortgages or other 7 monetary encumbrances shall contain an unconditional obligation of the holder thereof to release the Property or portions thereof designated by Buyer, as herein provided, for no consideration, as to the first five acres, and for no more than ninety (90%) percent of the purchase pride set forth herein, for the remaining land. Any mortgages, judgments or obligations shall be released at the request of Buyer • for no consideration from Buyer (except for payment of \ the purchase price required hereunder) . (d) Seller will cooperate reasonably, if requested by Buyer, in securing assurances from the appropriate governmental authorities relating to subdivision, use, water, sewer, and building permits and will give such assistance to Buyer, or Buyer's assignees or nominees, as may be reasonably necessary, other than money, to secure such approvals and to make appropriate soil, engineering and environmental tests, including execution of any documents reasonably 9 • • • required by Buyer to effectuate the same. Buyer shall provide a reasonable notice and review period to Seller for any such requested cooperation. (e) Buyer or Buyer's nominee or duly authorized . agents or contractors shall have the right to go upon the Property, Prom time to time, from the date hereof, for the duration of the Option for the purpose of conducting appropriate tests investigations and surveys, including but not limited to making topographical and boundary line surveys, to conduct soil tests for percolation and load bearing, to dig probe pits eight (8) feet or more in depth and to make such other examinations or use of the Property as Buyer may deem necessary in Buyer's sole discretion. (f) As record title to the tract of which the Property is a part is, as of the date of execution of this Agreement, owned by Deimler, a party other than Seller, Seller expressly covenants that Seller, at Seller's expense, will obtain any necessary consent and cooperation of such record title owner to the implementation of the provisions of this Option Agreement. Deimler, by his joinder herein, consents to this Agreement and agrees to cooperate, as reasonable, in effectuating the terms and conditions hereof. If, for any reason, Deimler fails to consent or cooperate 10 • as herein provided, such failure shall be deemed a default and breach of this Agreement. 11. Covenants pf Buyer. Buyer covenants and agrees that: (a) Buyer shall give prior notice of Buyer's ihtended entry onto the Property for any activities on the Property contemplated by Paragraph 10(e) hereof, shall use testing techniques that are designed to be the least disruptive to Deimler's crops and existing use of the land, and shall promptly restore the • Property to the condition existing prior to such tests (including top soil to its pretesting depth) , and shall indemnify and save harmless Seller against any loss or liability resulting from the entry of Buyer or Buyer's nominees or their duly authorized agents or contractors in conjunction with the activities described in the preceding Paragraph. This obligation shall survive termination of the option. (b) In order to protect crops growing on the Property, in the event the testing or other activities proposed by the Seller would have more than nominal damage to crops growing on the Property, •the Buyer will, prior to exercising its rights of inspection, provide to Deimler a plan showing the location of the testing to be performed or other activity and will also provide a general description of the activities which 11 • • the Buyer anticipates. Should Daimler object to such activity by or on behalf of the Buyer, then the Buyer i agrees not to engage in such testing or other activity until the current crop has been harvested; provided, however, that the inspection period shall be extended by the delay so occasioned (a time period equal to the . i time between the date the testing plan and description 7 . are presented to Deimler and the date when Daimler authorizes the Buyer to proceed) . 12. Time of the Essence. Time shall be of the essence • as to this Agreement and of all obligations hereunder. • 13. gxercise of Option. In the event the Option is exercised by Buyer, it shall become an agreement of sale as to • the portion of the Property as to which it is exercised duly binding upon the Seller and the Buyer, and their respective heirs, successors and assigns, as hereinafter provided, subject to the following additional terms and conditions: (a) Payment of Purchase Price. The purchase i price for the portion of the Property as to which it is then exercised shall be paid at the closing in the manner provided in Paragraph 3 hereof. (b) Title. Buyer shall, at no expense to Seller, secure whatever evidence of title Buyer desires; c ts provided, however, Seller's conveyance must be found to • t convey good and marketable title to the Property being conveyed in fee simple, free and clear of all liens and I.' . t 12 1 • 1 I; it encumbrances, except easements and restrictions which '. do not unreasonably interfere with Buyer's intended use of the Property. (c) peed. At settlement, the Seller shall convey to Buyer title as aforesaid by special warranty. deed. (d) Taxes and Assessments. Seller and Buyer agree to prorate, as of the date of closing, all real estate taxes and rents. Seller shall be liable for all . assessments prior to closing. (e) possession. Possession of the portion of the Property being conveyed shall be given to Buyer immediately upon delivery of deed from Seller. (f) Closing of Transaction. Closing (or settlement) on this transaction shall not be less than five (5) days or more than sixty (60) days after notice to Seller of Buyer's election to exercise the Option, lit but closing shall not occur until Buyer has caused to be recorded a duly approved subdivision plan for the portion of the Property being purchased. (g) Closing Expenses. Each party shall pay closing expenses as is customary. Transfer taxes shall be paid fifty (50%) percent by each party. 14. Condition of the Property. Seller shall not, during the term of this Agreement, exercise Seller's rights of ownership so as to interfere with or alter the condition of the Property 4s it exists on the date hereof. 13 , 1 15. Condemnation, In the event of condemnation of the Property, the Seller shall advise the Buyer of said condemnation upon receipt of notice of said proceeding. Any award made pursuant to the proceeding shall be paid to the parties hereunder as their interests may then appear pursuant to this Agreement. 16. Defective Title. If the title to the Property is found to be defective or unmarketable or any part of the Property is subject to liens, encumbrances, easements, conditions or restrictions, the Seller shall have a reasonable time, not exceeding sixty (60) days after written notice thereof, in which to remedy or remove any such defect, lien, encumbrance, easement, condition; restriction or encroachment. If the Seller is unable to remedy, remove or to secure title insurance against such defect, lien, encumbrance, easement, condition, restriction or encroachment within such reasonable time, Buyer shall be entitled to terminate this Agreement and to receive a return, in full, of all monies theretofore paid by Buyer to Seller, if any, or, if such objection is liquidated as to amount, to pay so much of the proceeds due Seller at closing to satisfy such objection, but otherwise to waive said defects and accept such title as Seller is able to grant and convey, at Buyer's option. Upon termination, if elected, the obligations and duties of the parties hereto (to one another) shall cease and terminate, and each party shall be relieved and fully 14 • released from any and all damage or claims in favor of any other party to this Agreement arising out of it. 17.• Default. Upon default or breach of this Agreement .' by Seller, Buyer shall, at Buyer's election, be entitled: (a) to a return of all option consideration theretofore paid, to reimbursement by Seller of all expenses incurred by Buyer in pursuing ,the terms of this Agreement, both with interest at the prime rate of interest as published in The Wall Street Journal or its successor publication, from time to time, plus four (4%) percent (the "Interest") and to damages, or (b) to specific performance. In either case, Buyer shall also be entitled to recover from Seller Buyer's reasonable attorneys fees and costs incurred as a consequence of Seller's default. 18. General. Provisions' Relating to Development. Seller and Buyer agree that development of the Property, the Retained Tract, and the remaining portion of the Deimler Farm should be accomplished in a fashion which does not unreasonably interfere with development of other portions of the aforesaid tracts. To that end, streets, water lines, sewer lines, and other utilities serving any of the aforementioned tracts shall be designed to accommodate the reasonably anticipated requirements for development of other portions of the Deimler Farm, Each party agrees that the other may connect with or tie into streets or utilities constructed on any portion of the Daimler Farm, regardless of who constructs the same, and each party (to include Daimler) will grant easements reasonably 15 • • necessary to effectuate this provision. The Buyer will be responsible for making initial payment for all streets, sewers and water located on the Property, as well as the cost of preparing and filing all subdivision plans (except for the • Retained Tract) . While the Buyer shall bear the initial cost of the foregoing, and shall permit the Seller to connect and tie into any of the aforesaid streets or utilities, the Buyer shall be entitled to reimbursement for connection fees or such other compensation from the governmental authorities or public utilities as is permitted to Buyer by law or by agreements negotiated with such governmental authorities or public utilities, and the Seller shall not be relieved of the cost or expense thereof by virtue of the provisions of this Agreement. 19. Underlying Agreement of Sale. The parties acknowledge that the tract of which the Property is a part is the subject of an Agreement of Sale by and between the record title owner and Harbilas, Seller herein. The parties expressly agree that, if for any reason Harbilas/Seller fails to perform any obligation under said Agreement of Sale, or exercise any right thereunder, Buyer in its sole discretion may cure any . default by Harbilas/Seller under said Agreement of Sale, and perform any obligation and exercise any right thereunder on behalf of Harbilas/Seller in order to preserve Buyer's Option. In such ain event, Buyer shall be entitled to credit any ' reasonable costs incurred by it on account of such cure, performance and exercise together with Interest thereon from the 16 . y time the expenses of cure were incurred against the purchase price set forth in this option Agreement, or, in the event Buyer terminates this Agreement due to Seller's default, then to recover the same from Seller. 20. Easements. Buyer agrees to provide to the Seller access easements through streets which are intended to be dedicated for puhlic roads (prior to dedication thereof) and ' . utility easements, together with the right to construct public utility lines and facilities therein, all over, upon and through the Property. The location and capacity of such utility lines are subject to the approval of the Buyer, which will not be unreasonably withheld or delayed. Such utility lines shall be laid out with• due regard for the reasonable development of the Property. The easement granted by Buyer shall contain a provision allowing the Buyer, at Buyer's expense, to relocate such easement and the utility facilities located therein, at Buyer's sole cost and expense, in the event the location approved by Buyer should subsequently impair Buyer's development of the Property. 21. Tax Free Exchange. Both parties agree that either party or Deimler may wish to treat the conveyance of this Property as a tax-free exchange of like kind properties as may be permitted under Section 1031 of the United States Internal Revenue Code. In the event that either party or Deimler is able to arrange for the acquisition of other property which can be exchanged for the Property in such a tax free transaction, 'the 17 parties and Deimler agree that each of them will cooperate to conclude such a like kind exchange on a tax free basis, if at all possible. In exchange for a party's cooperation for such efforts, the requesting party (to include Daimler) agrees to bear and pay in full all of the other parties' (to include Deimler) reasonable costs and expenses associated with the tax- free exchange and further to indemnify and save harmless the F . other parties (to include Deimler) from any loss, cost or claim, including reasonable attorney's and accountant's fees caused to - the other parties (to include Deimler) as a result of such like kind exchange and any review, audit or dispute of same by the Internal Revenue Service. In the event a party (to include Deimler) chooses to treat the transaction as a tax-free exchange, such party (to include Deimler) nay assign this contract to another person or entity without first obtaining the written consent' of the other party (to include Deimler) . Under such assignment, the party so assigning will assign its rights under this Agreement as contemplated by Treasury Regulation Section 1.1031 (K)-1(g) (4) (V) but not its obligations under this Agreement. Closing shall not be delayed by an assignment as set forth in this Paragraph. 22. Gender/Number. Whenever the context herein so requires, the singular number shall include the plural, the plural shall include the singular, and the use of any gender shall be applicable to all genders. 18 23. Headings. The headings or captions preceding the paragraphs in this Agreement are inserted for convenience of reference only and shall not be construed in interpreting this Agreement. 24. pennpylvgnia Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. 25. Entire 'Agreement. This Agreement contains the entire understanding between the parties hereto and supersedes any prior written or oral agreements between them respecting the within subject matter, except a Utility Easement Agreement • and/or Right of First Refusal Agreement, if any, executed by the parties of even date. There are no representations, agreements, arrangements or understandings, oral or written, between or among the parties hereto relating to the subject matter of this Agreement which are not fully expressed herein. 26. Formal Tender. Formal tender of deed and purchase money are hereby waived. 27. Assigns. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties hereto. 26. Survival of Covenants. All covenants and provisions hereof which expressly or impliedly are intended to survive settlement shall survive the settlement and the execution and delivery of the deed of conveyance.and shall not be merged therein. 19 29. Modifications/Waiver. No change or modification to this Agreement shall be valid unless the same is in writing and signed by the parties hereto. No waiver of the provisions of this Agreement shall be valid unless in writing and signed by the party against whom such waiver is sought to be enforced. 30. Notice. Any notice required hereunder shall be hand delivered, sent by certified United States mail, postage prepaid, or sent byrovernight delivery service requiring receipt (such as Federal Express or UPS) to the parties, and shall be deemed to have been given upon actual receipt or refusal of such notice, at the following addresses: If to the Seller: Mr. and Mrs. John C. Harbilas 817 Mandy Lane, Camp Hill, PA 17011 With a copy to: Bruce D. Foreman, Esquire Nicholas & Foreman 3207 N. Front Street Harrisburg, PA 17110 If to the Buyer: Mt. Zion Associates 20 Erford Road, Suite 201 Lemoyne, PA 17043 With a copy to: Wix, Wenger & Weidner 508 North Second Street Harrisburg, PA 17101 31. Waiver of Tenpler. Tender of an executed deed and/or the purchase price, in the event of a default, is hereby waived. 32. Memorandum of Option. Upon payment by Buyer to Seller of the initial $100,000.00 consideration, this Agreement may be recorded, and if requested, all parties hereto agree to execute a Memorandum of Option in recordable form setting forth 20 • . the duration of the Option and such other terms and conditions as are necessary to give notice of the provisions hereof. In the event Buyer fails to make any of the payments required herein, including, without limitation, the payments due on each anniversary date, strictly in accordance with the terms of this Option, or after thirty (30) days written notice and failure to cure, fails to perform any other material term or provision of this Agreement, then.the Buyer shall, upon written notice from ' Seller, promptly sign such reasonable documentation as is prepared by Seller, including, without limitation, a release of this option, evidencing the termination of all of the Buyer's right, title and interest to the portions of the Property as to which Buyer has not exercised its options and made payment therefor. IN WITNESS WHEREOF, the parties hereto, INTENDING TO BE LEGALLY BOUND HEREBY, have executed this Agreement the day and • year first above written. WITNESS: BUYER: MT. ZION ASSOCIATES, L.P. By its sole general partner Mt. Zion Associat:s, Inc. /OW BY !2I H , ip 61hGC T WITNESS: SELLE•/: A bi/ //////6/6i (7- r 146%,.AZ. ,ohn C. Harb las 21 • COMMONWEALTH OF PENNSYLVANIA : : S5. : COUNTY OF : On this, the p94-t•kday of 75-4-1 , 1996, before me, a Notary Public, the undersigned officet•, personally appeared Timothy C. Harrison, who acknowledged himself to be the president of Mt. Zion Associates, Inc. , the sole general partner of Mt. Zion Associates, L.P. , a Pennsylvania limited partnership, and that he, as such president, being authorized to do so, executed the foregoing instrument as. the act and deed of said partnership for the purposes therein contained by signing the name of the corporation himself as president. IN WITNESS WHEREOF, I hereunto set my hand and official seal. .91/.71k- f(-1-tee -- • o ary Public My Commission Expires: (SEAL) Notarial Seal • Loretta 8.Ecker,Notary Public '- Camp Hill Bora,Cumt?erland County • '. COMMONWEALTH OF PENNSYLVANIA My Commission Expires Nov.9,1998 _ 1/4):1..0 , : SS. : • COUNTY OF Y • on this, the ra„rdLday of %Vl-, , 1996, before me, a Notary Public, the undersigned officer, personally appeared John C. Harbilas, an adult individual, known to ma (or satisfactorily proven) to be the person named in the foregoing instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I h unto set m � d and official seal. AL- -\(\(\ . • °MCt, 11 N ary Public V► I My Commission Expires: (SEAL) Co Ww\oOCUMENTs\HLC.OPT July 17, 1996 i NOTARIAL SEAL VSA M.LONG.Notary Public CIry al Harrisburg,Dauphin County My Commission t=xpiras Apnl 2E.1997 • • 22 • , • .. JOINDER OP EUGENE DEIMLER Eugene Daimler, for good and valuable consideration, • the receipt of which is hereby acknowledged, and intending to be legally bound, joins in the foregoing Real Estate Option Agreement for the purpose of evidencing his consent to the terms and conditions thereof, insofar as he has any interest in the Property, as defined therein, and agrees that any interests he has therein are and shall be subject to the rights• and • privileges of the Buyer, as set forth therein. IN WITNESS WHEREOF, Eugene Daimler, INTENDING TO BE . AL Y BOUND HEREBY, has executed this Joinder this A day of ; V ( , .996: • WIT ESS: • / W\ (11moylNk_...., �C ' . r1 . ,f /4' �,( ugee De m er COMMONWEALTH OF PENNSYLVANIA : • U� t, : SS. : COUNTY OF : On this, the 5P day of , 1996, before me, a Notary Public, the undersigned o car personally appeared Eugene Daimler, an adult individual, known to me (or satisfactorily proven) to be the person named in this Joinder, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand nd official seal. Notti lub y lict My commission Exp s: i (SEAL) . • Mail Seal J G3unx.Notary Pi.bia 1 14 Ociniabier;=No,Cca Mt] 'C.) JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs v. MT. ZION ASSOCIATES, L.P., Defendant eountp of QCurnberlanb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2008-01936 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR POST -TRIAL RELIEF ORDER OF COURT AND NOW, this 27th day of June 2014, upon consideration of Plaintiffs' Motion for Post -Trial Relief and the response to the Rule to Show Cause by Defendant, the Motion for Post Trial Relief is DENIED. The above decision obviates the need for a trial transcript, which becomes the prompt decision on the objection to the portion of the record to be transcribed. Itribution List: ✓JI'rey C. Clark, Esq. dice Kerwin Hull, Esq. avid E. Lehman, Esq. Thomas ? 'lacey C.P.J. •Lr r C� h L (� RO T HO?t .1 , t i4JUN 30 J1 0: CUMBERLAND COUNTY PENN SYLVANIA JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs v. MT. ZION ASSOCIATES, L.P., Defendant Count? of 4 umbertnnb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2008-01936 CIVIL TERM IN RE: DEFENDANT'S PETITION FOR ASSESSMENT OF ATTORNEY'S FEES AND COSTS ORDER OF COURT AND NOW, this day of June 2014, upon consideration of Defendant's Petition for Assessment of Attorney's Fees and Costs, a RULE is issued upon Plaintiffs to show cause why the relief requested should not be granted. DEFENDANT shall effectuate service of this Order of Court upon Plaintiffs and shall file proof of service. RULE RETURNABLE twenty (20) days from the date of service. Plaintiffs SHALL include a proposed Order with any response. Thoma •' A. Placey C.P.J. Dpi tribution List: t. Jeffrey C. Clark, Esq. %/ dice Kerwin Hull, Esq. %/David E. Lehman, Esq. 0111 J,Ir -2 2: /2 CUMBERLAND COUNTY WIX, WENGER & WEIDNER ' Jeffrey C. Clark, I.D. # 89277, jclark@wwwpalaw.com 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Fax: (717) 234-4224 Attorneys for Defendant JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs, v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-1936 CIVIL TERM MT. ZION ASSOCIATES, L.P., : CIVIL ACTION — EQUITY AND FOR Defendant : DECLARATORY JUDGMENT AFFIDAVIT OF SERVICE Paula A. Cribben, being duly sworn according to law, deposes and says that she is a Paralegal at the law offices of Wix, Wenger & Weidner, and that on July 1, 2014, she sent a true and correct copy of the attached Order of Court filed on June 30, 2014, to Kandice Kerwin Hull, Esquire, at McNees Wallace & Nurick, LLC, 100 Pine Street P.O. Box 1166, Harrisburg, PA 17108-1166 and to David Lehman, Esquire, at Lehman Mediation Services, LLC, 2903 North Second StrH�rrisburg, PA 17110, via regular, first class mail. / WIX, ENGER Date: kaa4 By: \Pula A. eh, Paralegal 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Defendant 11 LVr-. f11)'t JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs V. MT. ZION ASSOCIATES, L.P., Defendant County of Cumberfanb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2008-01936 CIVIL TERM IN RE: DEFENDANT'S PETITION FOR ASSESSMENT OF ATTORNEY'S FEES AND COSTS ORDER OF COURT AND NOW, this day of June 2014, upon consideration of Defendant's Petition for Assessment of Attorney's Fees and Costs, a RULE is issued upon Plaintiffs to show cause why the relief requested should not be granted. DEFENDANT shall effectuate service of this Order of Court upon Plaintiffs and shall file proof of service. RULE RETURNABLE twenty (20) days from the date of service. Plaintiffs SHALL include a proposed Order with any response. Thoma" A. Placey C.P.J. Distribution List: Jeffrey C. Clark, Esq. Kandice Kerwin Hull, Esq. David E. Lehman, Esq. Kandice Kerwin Hull Attorney I.D. No. 86345 McNEES WALLACE & NURICK LLC P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 Phone: 717-237-5452 Fax: 717-260-1698 David E. Lehman Attorney I.D. No. 15243 Lehman Mediation Service, LLC 2903 North Second Street Harrisburg, PA 17110 1 JUL 13 PM 3: 2 CUMBERLAND COUNTY PENNSYLVANIA Attorneys for Plaintiffs JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-1936 CIVIL TERM MT. ZION ASSOCIATES, L.P., : CIVIL ACTION — EQUITY AND FOR Defendant. : DECLARATORY JUDGMENT PLAINTIFFS' ANSWER TO DEFENDANT'S PETITION FOR ASSESSMENT OF ATTORNEYS' FEES AND COSTS Plaintiffs John C. Harbilas and Kathryn M. Harbilas, by their undersigned counsel, make the following responses to Defendant's Petition for Assessment of Attorneys' Fees and Costs, as directed in the Rule to Show Cause issued June 30, 2014. 1. Admitted. Plaintiffs commenced this action seeking declaratory and equitable relief. 2. Admitted. 3. Admitted. 4. The text of paragraph 17 of the Option Agreement is admitted. 5. Admitted. 6. Admitted. By way of further answer, Paragraph 19 of the Court's Order of May 23, 2014 contains the complete text of the Court's finding. 7. The Court's finding in Paragraph 19 appears to set the basis for consideration of recovery of "reasonable attorney's fees and costs incurred as a consequence of Seller's default." 8. Admitted that, at Defendant's request, consideration of this issue was deferred from the trial issues heard in the April 2014 trial proceedings. 9. Denied as stated. The reasonableness, necessity, and causal relation of claimed costs and expenses are matters now to be reviewed and, after hearing, to be determined by the Court. Based on the gross dollar amount set forth in the Petition, which has been stated without any further explanatory support or documentation, Plaintiffs will contest certain aspects of the items claimed. 10. Denied. Plaintiffs filed a Motion for Post -Trial relief, but that Motion, having been denied by the Court without any reply from Defendant and without any briefing, will have no impact on Defendant's claim for fees. 11. The Court has denied the Motion for Post -Trial Relief. However, Plaintiffs join in a request (a) that a hearing be held to receive evidence and to hear argument in this matter, and (b) that the date for such a proceeding be deferred for at least 60 to 90 days to permit document discovery and related analysis to be completed. 2 12. The amounts claimed by Defendant seem extraordinary, particularly in light of pre-trial discovery responses. Plaintiffs sent Interrogatories to Defendant asking it to state its claims for "all damages relating to legal expenses, engineering and other technical assistance," and in response, Defendant gave an elaborate answer concerning its assertions of multiple breaches by Plaintiffs, and then stated: "The engineering costs are at least $15,373.29." "The legal fees are at least $35,354.33." The Answers to Interrogatories (marked as trial Exhibit No. 85), were verified by Mt. Zion's Vice -President on January 31, 2013. Engineering bills were provided at that time, but not lawyers' bills. Plaintiffs have served Requests for Production of supporting documentation on Defendant. Until some rationale and substantiation is provided by Defendant, Plaintiffs must reserve further commentary. On their face, and in light of prior discovery responses, the claims seem excessive and highly unreasonable. Further specification of Plaintiffs' objections will be provided when supporting documentation from Defendant has been provided. 13. Denied as stated. Plaintiffs dispute the Defendant's assertions that the amounts claimed are reasonable, and that the amount claimed were necessitated by the dispute with Plaintiffs. As an equitable matter, Plaintiffs will demonstrate to the Court the substantial savings enjoyed by Mt. Zion through deferring its land acquisition costs for almost ten years, while 3 keeping the Harbilas' land out of market competition. Those savings should be considered by the Court as well in adjudicating this matter. Respectfully submitted, McNEES WALLACE & NURICK LLC By Date: July 18, 2014 4 Kandice Derwin Hull I.D. No. 86345 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Tel: (717) 232-8000 Fax: (717) 237-5300 and David E. Lehman I.D. No. 15243 Lehman Mediation Service, LLC 2903 North Second Street Harrisburg, PA 17110 Attorneys for Plaintiffs CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Jeffrey C. Clark, Esq. WIX, WENGER & WEIDNER 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 41/11, landice Ker n Hull Dated: July 18, 2014 [' f!Wful WIX,Ion Associates, L.P.,WENGER &WEIDNEDRf P.C. nth°�s/Y�� Jeffrey C. Clark, I.D. No. 89277 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 JOHN C. HARBILAS and IN THE COURT OF COMMON PLEAS KATHRYN M. HARBILAS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, NO. 08-1936 CIVIL TERM V. MT. ZION ASSOCIATES, L.P., CIVIL ACTION — EQUITY AND FOR Defendant DECLARATORY JUDGMENT REPLY TO PLAINTIFFS' ANSWER TO DEFENDANT'S PETITION FOR ASSESSMENT OF ATTORNEYS' FEES AND COSTS AND NOW, comes Defendant, Mt. Zion Associates, L.P., by and through its attorneys, and files this Reply, stating as follows: Although not presented as New Matter, Plaintiffs make various statements to which Defendant believes a response is necessary: 12. Plaintiffs misstate both their Interrogatory and Defendant's response in Paragraph 12 of their Answer. Plaintiffs asked for "legal expenses, engineering and other technical assistance in connection with the project development work." Defendant answered that it incurred "legal and engineering expenses to create subdivision plans and to engage in negotiations with the purpose of validly exercising their option rights" and 1 then stated a minimum amount calculated on that basis. The Interrogatory did not request, and Defendant reasonably did not interpret the request, as one for Defendant's full litigation and expert costs, such a request being highly premature at that state of the litigation and, thus, objectionable and unanswerable in its own right. Applicable portions of the discovery are attached hereto as Exhibits "A" and "B". 13. It is denied that any purported "savings" are relevant in any way to equitably offset the attorneys' fees due Defendant by application of the contractual agreement between the parties Any such consideration would serve to vary the terms of the contract, contrary to axiomatic principles of contract law. Moreover, Plaintiffs' position is entirely speculative as it does not account for any lost business opportunities to Defendant. Put another way, the purchase of the property pursuant to the option when first exercised could have presented any number of opportunities to Defendant, or completely altered the marketing and development of the property. To offset the "savings" to Defendant as purported by Plaintiffs would be to enter a deep and complicated morass of speculation and irrelevancy. 2 Respectfully submitted, WIX, WENGER &W IDNER Date: rzu/t\� By- dL Jeffrey 64rk, I.D. # 89277 508 NoS cond Street P.O. B 84 Harrisburg, PA 17108 - 0845 (717) 234-4182 Attorneys for Defendant 3 JOHN C. HARBILAS and IN THE COURT OF COMMON PLEAS KATHRYN M. HARBILAS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, NO. 08-1936 CIVIL TERM V. MT. ZION ASSOCIATES, L.P., CIVIL ACTION — EQUITY AND FOR Defendant DECLARATORY JUDGMENT CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Reply to Answer to Petition for Assessment of Attorneys' Fees and Costs was served via regular mail at the following address: David Lehman, Esquire Lehman Mediation Services, LLC 2903 North Second Street Harrisburg, PA 17110 Kandice Kerwin Hull, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Respectfully Submitted, WIX GER & WEIDN s ' r3 ti Date: j p a o By PaA K C ben, r 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 4 EXHIBIT "A" Kandice Kerwin Hull Attorney I.D.No. 86345 McNEES WALLACE &NURICK LLC P.O.Box 1166, 100 Pine Street Harrisburg,PA 17108-1166 Phone: 717-237-5452 Fax: 717-260-1698 Afforneys for Plaintiffs JOHN C. HARBILAS and : IN THE COURT OF COMMON PLEAS KATHRYN M.HARBILAS, : CUMBERLAND COUNTY,PENNSYLVANIA Plaintiffs NO. 08-1936 CIVIL TERM V. MT. ZION ASSOCIATES,L.P., : CIVIL ACTION—EQUITY AND FOR Defendant. : DECLARATORY JUDGMENT PLAINTIFFS' SECOND SET OF INTERROGATORIES DIRECTED TO DEFENDANT To: Mt.Zion Associates,L.P.,Dean A. Weidner,Esq. and Jeffrey C. Clark,Esq., their attorneys: PLEASE TAKE NOTICE that you are hereby required,pursuant to Pennsylvania Rules of Civil Procedure,Rules 4001,4003.1-.3, -.4,-.5,4005 and 4006, to serve upon the undersigned,within thirty(30)days from service hereof, your Answers in writing and under oath to the following Interrogatories. These Interrogatories shall be deemed to be continuing Interrogatories. If between the time of your Answers to said Interrogatories and the time of the trial of this case you or anyone acting on your behalf learn the identity and whereabouts of any other witnesses not identified in your said Answers,or if you or anyone on your behalf obtain or become aware of additional requested information not supplied in your Answers,you shall promptly furnish the same to the undersigned by Supplemental Answers. These Interrogatories are addressed to you as a party to this action and your Answers shall be based upon the information known to you,or your attorney or other representatives. 11. To the extent not already provided in answers to previous Interrogatories, state the factual basis for Mt. Zion's claim for recovery from Mr. and/or Mrs. Harbilas of any damage amounts, including without limitation all damages relating to legal expenses, engineering and other technical assistance in connection with project development work. Include in your answer an itemization of dollar amounts claimed,and state whether you will provide without further request copies of all invoices upon which such claims are based. ANSWER; 12. Assume for the proposes of this Interrogatory and its subparts,that at the conclusion of this litigation Mr. and Mrs.Harbilas will own a substantial residual parcel of 77-100 acres, more or less,abutting and adjoining property owned by Mt.Zion in the Technology Park. (a) In that circumstance, does Mt. Zion acknowledge and agree that its agreement(s) with Mr. and/or Mrs. Harbilas obligate Mt. Zion"to provide (as shown on the subdivision plan) a street right-of-way to his property and a right-of-way for connecting utilities?"1 (b) In that circumstance,does Mt. Zion acknowledge and agree that Mt. Zion's obligation to provide a street right-of-way to the residual Harbilas'tract will include the right to connect on to the existing street known as Technology Parkway? Quoted language drawn from Mt.Zion's Answer with New Matter and Counterclaim,dated January 13,2010. 8 EXHIBIT "B" JOHN C. HARBILAS and : IN THE COURT OF COMMON PLEAS KATHRYN M. HARBILAS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, NO. 08-1936 CIVIL TERM V. MT. ZION ASSOCIATES, L.P., : CIVIL ACTION — EQUITY AND FOR Defendant. : DECLARATORY JUDGMENT ANSWERS TO PLAINTIFFS'SECOND SET OF INTERROGATORIES AND NOW, comes Defendant, Mt. Zion Associates, L.P., by and through its attorneys, Wix, Wenger&Weidner, and files these Responses to Plaintiffs' Second Set of Interrogatories, as follows: Plaintiffs' Second Set of Interrogatories are objected to the extent that they: 1. are sought in bad faith, Pa.R.C.P. 4011(a); 2. would impose unreasonable annoyance, embarrassment, oppression, burden or expense upon Defendant, Pa.R.C.P. 4011(b); 3. require the making of an unreasonable investigation by Defendant, Pa.R.C.P. 4011(e); 4. inquire into privileged matters, Pa.R.C.P. 4003.1; 5. inquire into irrelevant matters or matters not reasonably calculated to lead to the discovery of admissible evidence, Pa.R.C.P. 4003.1; 6. seek disclosure of the mental impression of Defendant's attorneys or its conclusions, opinions, memoranda, notes, summaries, legal research or legal theories, or require disclosure of Defendant's other representatives' mental 9. If the answer to the foregoing Interrogatory is not in the negative, identify each such claim, set forth the actual basis for the claim, the legal theory upon which it is asserted, and your current best calculation (or best estimate) of its dollar amount. ANSWER: N/A 10. State the factual bases for calculating any monetary damages claimed by Mt. Zion in the above-captioned action for any economic harm or loss arising from loss of opportunity. Include in your answer identification of the persons) associated with Mt. Zion who are most knowledgeable of those facts. ANSWER: N/A 11. To the extent not already provided in answers to previous Interrogatories, state the factual basis for Mt. Zion's claim for recovery from Mr. and/or Mrs. Harbilas of any damage amounts, including without limitation all damages relating to legal expenses, engineering and other technical assistance in connection with the project development work. Include in your answer an itemization of dollar amounts claimed, and state whether you will provide without further request copies of all in voices upon which such claims are based. ANSWER: The underhanded and wrongful actions of Plaintiffs in this case (the concealment of an option extension with Mr. Deimler; contacting township officials to convince them not to approve Mt. Zion's subdivision plan; refusing to sign subdivision plans prepared by Mt. Zion; lying about not receiving the notice of Mt. Zion's exercise of the option; once caught in the lie, creating false bases upon which to refuse to recognize the option without imposing conditions not found in the agreement; failing to include language in the deed subjecting the property to the protective covenant as required by the agreement) all constitute unclean hands and caused Mt. Zion to incur significant legal and engineering expenses to create subdivision plans and to engage in negotiations with the purpose of validly exercising their option rights. The engineering costs are at least$15,373.29. The legal fees are at least $ 35,354.33. 5 _= lL` J -O FPL: • u. THE PROTHON3`ir', 't 20R OCT 28 PM • I: CI 4 CUMBERLAND COUNTY PE JOHN C. HARBILAS and KATHRYN M. NSYLMANIA HARBI LAS, Plaintiffs MT. ZION ASSOCIATES, L.P., Defendant Countp of enmbertanb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2008-01936 CIVIL TERM IN RE: DEFENDANT'S PETITION FOR ASSESSMENT OF ATTORNEY'S FEES AND COSTS ORDER OF COURT AND NOW, this 27th day of October 2014, upon consideration of Defendant's Petition for Assessment of Attorney's Fees and Costs, it is hereby ORDERED that ARGUMENT on the Petition is scheduled for 12 December 2014 at 11:30 a.m. in. Courtroom Number Six of the Cumberland County Courthouse, Carlisle, Pennsylvania. Further, it is ORDERED that Defendant provide to Plaintiff all documentation relating to attorney's fees and engineering costs that they are seeking to submit in support of their claim no later than twenty (20) days from the receipt of this Order. stribution List: ✓ �Jeffrey C. Clark, Esq. ✓andice Kerwin Hull, Esq. David E. Lehman, Esq. i ES �.dt 1o7z8/,y -T BY T E COURT, II Thom -s A . Placey C.P.J. JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs, V. HE Eu C CE P:OTIIDOTAI:;1 20 i 6 A1I1 147 CLE-1BEFIAND COUNTY PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-1936 CIVIL TERM MT. ZION ASSOCIATES, L.P., : CIVIL ACTION — EQUITY AND FOR Defendant : DECLARATORY JUDGMENT JOINT PETITION TO RESCHEDULE HEARING AND NOW, comes Defendant, Mt. Zion Associates, L.P., by and through its attorneys, Wix, Wenger & Weidner, P.C., joined by Plaintiffs, John C. Harbilas and Kathryn M. Harbilas, and files this Petition to Reschedule Hearing: 1. On June 29, 2014, Defendant filed a Petition for Assessment of Attorneys' Fees and Costs, answered by Plaintiffs on July 18, 2014. 2. By letter dated October 7, 2014, Defendant's counsel requested that a hearing be scheduled. 3 On October 27, 2014, The Honorable Thomas A. Placey issued an Order scheduling argument for December 12, 2014, at 11:30 a.m. 4. Defendant's counsel is currently attached for trial by the Court of Common Pleas of Dauphin County on that day. 5. The parties would be available on December 1, 2014. 6. If that date is unavailable, the parties would request a date after January 25, 2015. 2 7 The parties also request that the hearing be scheduled to accommodate the presentation of evidence, as well as argument. WHEREFORE, the parties respectfully request that this Honorable Court enter an Order removing the December 12, 2014 argument from its calendar and rescheduling the hearing as set forth above. Date: ff/117rLj Respectfully submitted, WIX, WENGER WEIDNER By: 3 C. Clark, I.D. # 89277 5 rth Second Street P. ox 845 Harrisburg, PA 17108 - 0845 (717) 234-4182 Attorneys for Defendant JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs, v. IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-1936 CIVIL TERM MT. ZION ASSOCIATES, L.P., : CIVIL ACTION — EQUITY AND FOR Defendant : DECLARATORY JUDGMENT CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Petition was served via regular mail at the following address: David Lehman, Esquire Lehman Mediation Service, LLC 2903 North Second Street Harrisburg, PA 17110 Kandice Kerwin Hull, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 With a courtesy copy to: The Honorable Thomas A. Placey via email to: mhalla.ccpa.net Respe - ly Submitted, WIX, WE GER & WEIDNE Date: ti14Laoi4 B 4 aula A. Crib: - n, Paralegal 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 THE PROTHONOTARY 2011, NOV 21 PH 2: 0 8 CUMBERLAND COUNTY PENNSYLVANIA JOHN C. HARBILAS and KATHRYN M. HARBILAS, Plaintiffs v. MT. ZION ASSOCIATES, L.P., Defendant IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2008-01936 CIVIL TERM IN RE: JOINT PETITION TO RESCHEDULE HEARING ORDER OF COURT AND NOW, this 20th day of November 2014, upon consideration of the Joint Petition to Reschedule Hearing , it is hereby ORDERED that the 12 December 2014 hearing has been continued until 20 February 2015 at 11:00 a.m. in Courtroom Number Six of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Thoma A. Placey C.P.J. D tribution: ey C. Clark, Esq. dice Kerwin Hull, Esq. avid E. Lehman, c.sq. trZA LEL P..0g