HomeMy WebLinkAbout08-28114't
LORI INVESTORS, INC.,
Plaintiff
Vs.
JOHN NEEDHAM, trading as MID
ATLANTIC MORTGAGE GROUP,
Defendant
NOTICE
TO DEFENDANT NAMED HEREIN:
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. Q?- X 8'11 C I v' 1 4"-A
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
TELEPHONE: (717) 249-3166
LORI INVESTORS, INC.,
Plaintiff
VS.
JOHN NEEDHAM, trading as MID
ATLANTIC MORTGAGE GROUP,
Defendant
COMPLAINT
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. Q?(- ,-Kll c1v:14c"1"-
AND NOW comes the above-named Plaintiff, by its attorney, Samuel L. Andes, and
makes the following Complaint in this matter:
1. The Plaintiff is Lori Investors, Inc., a corporation organized and operated under
the laws of the Commonwealth of Pennsylvania, with its principal offices at 5010 East
Trindle Road, Suite 203, Mechanicsburg, Cumberland County, Pennsylvania.
2. The Defendant is John Needham, an adult individual who does business as Mid
Atlantic Mortgage Group and which maintains an office, for that purpose, at 400 Holiday
Court, Suite 101, in Warrenton, Virginia 20186.
3. Until January of 2008, the Defendant regularly conducted business in Central
Pennsylvania and, specifically, in Cumberland County, Pennsylvania, and maintained an
office for the operation of that business at 5006 East Trindle Road in Mechanicsburg,
Cumberland County, Pennsylvania.
4. Plaintiff owns a property at 5010 East Trindle Road in Mechanicsburg,
Cumberland County, Pennsylvania from which Plaintiff rents and leases office space and
office facilities.
5. By a lease agreement dated 11 October 2005 between Plaintiff and Defendant,
Plaintiff leased to Defendant an office suite, identified as Suite 100, on the first floor of the
office building at 5006 E. Trindle Road in Mechanicsburg. The lease was for 2,473 square
feet of rentable office space. A copy of that lease is attached hereto and marked as
EXHIBIT A.
6. Pursuant to the terms of the lease, and specifically Paragraph 4, Defendant
was to pay a base rent of $1,854.75 per month plus additional rent in the amount of
$515.21 per month. In addition, pursuant to Paragraph 4 of the lease, the base rent and
additional rent were to be adjusted annually by a 2% annum increase.
7. On the 2007 anniversary of the lease between Plaintiff and Defendant, the
base rent and additional rent calculated in accordance with Paragraph 4 of the lease
increased to a total of $2,444.90 per month, effective 1 October 2007. Plaintiff notified
Defendant of that increase by letter dated 5 October 2007. A copy of that letter is
attached hereto and marked as EXHIBIT B.
8. The term of the lease, pursuant to Paragraph 2, was to be three years,
commencing on 1 October 2005 and ending on 30 September 2008.
9. In May of 2007, Defendant started to miss monthly payments of rent and fell
into default of the rental payments. By October of 2007, Defendant ceased making all
rental payments due under the lease. As a result, Defendant breached the lease and is in
default thereof.
10. In February of 2008, Defendant, without prior notification to Plaintiff,
abandoned the leasehold, removing his employees and much of his property from the
leased premises.
11. Paragraph 5 of the lease obligates Defendant to pay a late charge equal to
5% of any monthly installment not received by the 10th day of the month in which it is
due. By virtue of his default of the lease, Defendant owes Plaintiff a late fee of $122.24
per month for each monthly installment of rent not paid after 1 October 2007.
12. Because of Defendant's breach of the lease and default of his obligations
thereunder, Plaintiff has the right to "accelerate the whole or any part of the Base Rent,
Additional Rent, and all other sums payable under this Lease, whether or not payable as
rent, for the entire balance of the term of this Lease together with reasonable attorney's
fees." That right appears in Paragraph 18 of the lease.
13. Plaintiff has elected to accelerate the full amount of base rent, additional rent,
and late charges due under the terms of the lease. As a result, the sums in which
Defendant now owes Plaintiff are as follows:
A. Base rent (12 months at $1,929.69)
B. Additional rent (12 months at $515.21)
C. Late charges (12 months at $122.24)
Total rent and late charges
$23,156.28
$6,182.52
$1,466.88
$30,805.68
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Pursuant to Paragraph 18 (a) (i) of the lease, Plaintiff is entitled to collect its reasonable
attorney's fees resulting from or incurred as a result of the Defendant's breach of the
lease. Plaintiff's reasonable attorneys fees to enforce its rights under this lease will be
$3,000.00.
14. As a result of its breach of the lease between the parties, Defendant is
indebted to Plaintiff in the amount of $33,805.68, plus interest from 29 February 2008,
plus costs of suit.
15. Defendant, by his conduct, has injured Plaintiff in the amount of $33,805.68,
plus interest and costs of suit.
WHEREFORE, Plaintiff demands judgment against Defendant in the amount of
$33,805.68, plus interest after 29 February 2008, plus costs of suit.
(;-). " Q;?
Samuel L. Andes
Attorney for Plaintiff
Supreme Court ID # 17225
525 North 12th Street
Lemoyne, Pa 17043
(717) 761-5361
I verify that the statements made in this document are true and correct
understand that any false statements in this document are subject to the penalties of 18
Pa. C.S. 4904 (unsworn falsification to authorities).
Date: '?-/5-Dg -- - - -
LEASE AGREEMENT
BETWEEN
LORI INVESTORS, INC.
(LANDLORD)
AND
MID ATLANTIC MORTGAGE GROUP
(TENANT)
DATED
11 , 2005
(Vobtr
Table of Contents
Page
1. Description of the Premises ............................................................................................... l
2. Term/Option to Renew .....................................................................................................1
3. Security Deposit ...............................................................................................................1
4. Rent .................................................................................................................................. l
5. Late Charge ......................................................................................................................2
6. Right of First Refusal ................... .....................................................................t..........2
7. Utilities/Additional Rent ................................................................................................... 2
8. Use ................................................................................................................................... 3
9. Compliance With Law .................................................................................................... .. 3
10. Disclaimer .................................................................................................. .............. .. 4
11. Indemnity/Insurance ....................................................................................................... ..4
12. Modification/Repairs ...................................................................................................... .. 4
13. Services .......................................................................................................................... .. 4
14. Mechanics' Liens, etc ...................................................................................................... ..4
15. Quiet Enjoyment ............................................................................................................. ..5
16. Rights of Entry ............................................................................................................... .. 5
17. Defaults .......................................................................................................................... .. 5
18. Remedies ........................................................................................................................ ..6
19. Casualty Damage ............................................................................................................ .. 7
20. Condemnation/Eminent Domain ..................................................................................... ..7
21. Subordination ................................................................................................................. ..8
22. Estoppel Certificates ............ :.......................................................................................... .. 8
23. Increases in Insurance Premiums .................................................................................... .. 9
24. Reservations by Landlord ............................................................................................... .. 9
25. Assignment and Subletting ............................................................................................. ..9
26. Signs ............................................................................................................................... ..9
27. Successors and Assigns ................................................................................................... 10
28. Notices .............................................................................................................._............ 10
29. Exterior Attachments ..........................................:........................................................... 10
30. Limitation on Liability of Landlord ................................................................................. 10
31. Surrender ........................................................................................................................ 10
32. Holdover .......................................................................................................................... 10
33. Hazardous Substances ..................................................................................................... 11
34. Miscellaneous ................................................................................................................. 12
35. Force Majeure ................................................................................................................. 13
36. Tenant's Remedies in the Event of Landlord's Default ..................................................... 14
r,61%
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made as of the 11_ day of OC66r,
2005, by and between Lori Investors, Inc. ("Landlord"), a Pennsylvania corporation, with its
principal office at c/o Realty Management, Inc., 5010 East Trindle Road, Suite 203,
Mechanicsburg, Pennsylvania 17050, and Mid Atlantic Mortgage Group ("Tenant"), with its
principal office at 400 Holiday Court, Suite 101, Warrenton, VA 20186.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, INTENDING TO BE LEGALLY BOUND HEREBY, Landlord and Tenant agree as
follows:
1. Description of the Premises. Landlord agrees to lease to Tenant, and Tenant
agrees to lease from Landlord, 2,473 square feet of rentable (useable + common area portion)
office space, located on the first floor of 5006 E. Trindle Road, Mechanicsburg, PA 17050, also
know as Suite 100.
2. Term/Option to Renew. The term of this Lease shall be three (3) years,
commencing at 12:01 a.m. on October 1, 2005 (the "Commencement Date"). The term shall
expire at 11:59 p.m. on September 30, 2008 (the "Expiration Date"). The lease is successfully
completed on the expiration time and date including Paragraph 31.
Provided Tenant is not in default, Tenant shall have the option to extend this Lease for one (1)
additional period of two (2) years from the Expiration Date, upon the same terms and conditions
as those herein specified, excepting that the rent shall increase as provided in Paragraph 4 (c)
hereof. The option to extend shall be exercised upon written notice of Tenant's intention to
extend given at least one hundred twenty days prior to the Expiration Date.
3. Security. Deposit. Tenant will deposit with the Landlord an additional amount of
Eight hundred four and 29/100 ($804.29) Dollars for a total amount deposited with Landlord of
One thousand eight hundred fifty-four and 75/100 ($1,854.75) Dollars. This deposit shall be
returned to the tenant within 30 days of the successful completion of the lease.
4. Rent. Tenant will pay to Landlord, at the address set out below, or at such other
address as Landlord may designate, the rent stated herein. Rent shall be paid in advance without
prior demand, setoff or abatement. The monthly rental for the first month shall be payable upon
execution of this Lease. Thereafter, each monthly installment of rent shall be paid in advance on
the first day of each month during the term of this Lease.
(a) Tenant shall pay an annual base rent for the Premises of Twenty two
thousand two hundred fifty-seven and- 00/100 ($22,257.00) Dollars in equal consecutive monthly
installments of One thousand eight hundred fifty-four and 75/100 ($1,854.75) Dollars, which
rent is calculated based on Two thousand four hundred seventy-three (2,473) square feet of space
at Nine and 00/100 ($9.00) Dollars per square foot per annum. Such rent shall be subject to
adjustment as provided in Paragraph 4 (c) below.
(b) In addition to the Base Rent, Tenant shall also pay to Landlord an
additional annual rent of Six thousand one hundred eighty-two and 52/100 ($6,182.52) Dollars to
be paid in equal consecutive monthly installments of Five hundred fifteen and 21/100 ($515.21)
Dollars as payment towards Tenant's share of utilities, building operating costs and building
costs as defined in Section 7(a) and (b) (the "Additional Rent'), which is calculated based on
Two thousand four hundred seventy-three (2,473) square foot of space at Two dollars and
501100 ($2.50) Dollar per square foot per annum.
(c) Commencing September 1, 2006, and repeating on September I' of every
calendar year thereafter, the rent payable during the ensuing twelve (12) calendar months shall
be adjusted upward by 2%.
(d) In addition to the foregoing rent, all other payments to be made by Tenant
shall be deemed to be and shall become additional rent hereunder and shall be due and payable
on demand or together with the next succeeding installment of rent, whichever shall first occur.
Landlord shall have the same remedies for failure to pay the same as for a nonpayment of rent.
5. Late Charee. In addition to the rent herein specified, Tenant shall pay a late
charge equal to five (5%) percent of any monthly installment that Landlord does not receive by
the tenth (10`h) day of the month such installment is due. Said late charge is administrative
compensation of Landlord and shall not be construed as the payment of interest. Said late charge
shall be added to the monthly installment as additional rent. Any rent or other charge unpaid ten
(10) days after its due date shall commence to accrue interest at the prime rate of interest as
established by Mid Penn Bank, or its successor entity, from time to time (the "Prime Rate"), plus
two (20/6) percent (the "Interest"). Such Interest shall constitute additional rent hereunder and
shall be payable even after a judgment until actual receipt by Landlord of the amounts due.
Additionally, Tenant shall pay a handling charge of Fifty ($50.00) Dollars on any check returned
to Landlord for insufficient funds or for any other reason.
6. ftht of First Refusal. Tenant has no right of first refusal for any space in the
Building that becomes available during the initial term or any renewal period.
7. Utilities/Additional Rent. In addition to the Base Rent, tenant shall pay as
additional rent (refer to paragraph 4 (b)), the following items:
(a) All utilities consumed in the Premises, if separately metered and the cost
of Tenant's janitorial services shall be paid directly by Tenant;
(b) Tenant shall pay such other utilities (including gas heat, air conditioning,
trash, water and sewer service) consumed on the Premises, which are not separately metered (the
"Utilities"). Such Utilities shall be purchased by and paid for by Landlord. Tenant shall
reimburse Landlord its share of such Utilities by paying proportionate share of the Utilities so
purchased and paid for by Landlord. Tenant's share shall be measured by the amount actually
billed to Landlord for the Premises, as appropriate, or, if not separately billed, then by using a
fraction, the numerator of which is Tenant's rentable area of two thousand four hundred seventy-
three (2,473) square feet and the denominator of which is the total rentable area of all office
space square footage (owned by the Landlord) in the Building, as certified by the architect of the
Building, upon request by either party (the "Tenant's Building Share"). Landlord shall give
Tenant quarterly summaries of such invoices for Tenant's Building Share of the Utilities.
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(c) Tenant shall pay its proportionate share of Real Estate taxes, Liability
Insurance, fire and other insurance, condominium fees (which include, but is not limited to:
condominium liability & directors insurance; lawn & landscaping services for Building; snow
removal services; janitorial service provided to the common areas of the Building; building
window maintenance; routine repair and maintenance of the elevator serving the building;
elevator service and maintenance contracts; elevator inspection and insurance; sprinkler service
and maintenance contracts; fire detection hardware service and maintenance contracts; fire
extinguisher inspection fees; emergency lighting inspections and maintenance fees; material and
supplies associated with general maintenance and property maintenance; electrical service for
common areas; heating, ventilation and air conditioning service and maintenance; other
mechanical service and maintenance contracts; and such other services and charges),
Management fees, and repairs to Tenant's unit. Tenant's share of the above expenses will be
paid along with Tenant's monthly rental payments as additional rent. Landlord shall give Tenant
quarterly summaries of such invoices for Tenant's share of building costs. Tenant's Share of
the Building Operation Costs shall be measured by the amount actually billed to Landlord for the
Premises, as appropriate, or, if not separately billed, then by using a fraction, the numerator of
which is Tenant's rentable area of Two thousand four hundred seventy three (2,473) square feet
and the denominator of which is the total rentable area of all office space square footage (owned
by the Landlord) in the Building, as certified by the architect of the Building, upon request by
either party. Any claim for adjustment by Tenant based on this Paragraph 7(b) must be asserted
within ninety (90) days from the date the charge accrued to Landlord, or such claim shall be
waived by Tenant.
8. Use. Tenant may use and occupy the Premises for all lawful business purposes
incidental to use as a professional office or as otherwise agreed to by Landlord in writing.
Tenant shall not use or permit or suffer the use of the Premises for any other business or purpose
(except pursuant to a proper subletting under Paragraph 25 hereof) without Landlord's prior
written consent, which shall not be unreasonably withheld or delayed. Tenant shall (a) comply
with all laws, ordinances, orders, permits, approvals and regulations affecting the Premises now
in force or that hereafter may be in force and all reasonable rules, requirements and regulations
now or hereafter, insofar as they may relate to the Tenant's use and occupancy; (b) comply with
execute all rules, requirements and regulations of the Board of Fire Underwriters, insofar as they
may relate to the Tenant's use and occupancy; and (c) not suffer, permit or commit any waste or
nuisances of the Building. Tenant shall have the right to use, in common with other tenants and
permitted users of the Building, all common areas, stairways, sidewalks, halls, entrances, exits,
restrooms, elevators, loading docks and other similar or related facilities.
9. Comnliance,With Law. Landlord represents and warrants that, to the best of
Landlord's knowledge, the Premises, all equipment, fixtures and appurtenances related thereto
and all common areas of the Building conform to all applicable laws, ordinances, rules,
regulations and requirements of governmental authorities, boards of underwriters, rating bureaus
and similar organizations, and all insurers to the Premises and the Building. Landlord shall, at its
expense, comply with all such existing and future laws, ordinances, rules, regulations and
requirements, unless compliance with future laws, ordinances, rules, regulations or requirements
is required solely because of a use of the Premises peculiar to Tenant.
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10. Disclaimer. Landlord shall not be liable or responsible to Tenant for any failure
of heat, water, air conditioning or electric service, or for any injury to persons or damage to
property; belonging to Tenant or to any property of a third party located on the Premises with the
consent of Tenant, except if such failure, injury to persons or damage to property; is caused by
the negligent acts or willful conduct of Landlord, its employees, agents, servants, contractors or
representatives.
11. IndemnibAnsurance. Tenant shall indemnify and hold Landlord harmless from
and against liability to any person for personal injury, death and damage to tangible property
resulting directly from the negligence or willful conduct or Tenant, its agents, servants,
employees, licensees or invitees. Landlord shall indemnify and hold Tenant harmless from and
against liability to any person for personal injury, death and damage to tangible property
resulting directly from the negligence or willful conduct of Landlord, its agents, servants,
employees, licensees or invitees. Each said indemnity shall survive the Expiration Date or other
termination of this Lease.
Tenant shall provide, at its own expense, insurance for their personal property within the
Premises. Tenant shall furnish a certificate of insurance to Landlord five (5) days prior to the
Commencement Date, when such insurance policy renews,' and annually thereafter. -The-
12. Modification/Repairs. Landlord will install new carpeting and paint the
office, at Landlord's expense, space prior to tenant move in. Tenant shall not place any signs
upon the exterior of the Premises or in or about the Parking Spaces, nor cause any lettering of
any kind to be placed on the doors, windows, exterior walls or grounds of the building, without
the prior, expressed, written consent of Landlord, who reserves the right to make any approved
modifications, alterations or improvements. At the termination or Expiration Date of this Lease,
all such permitted alterations and improvements; with the' exception of `tenant's easily removed
equipment, appliances, shelving and cabinetry, shall become the property of Landlord and
remain for the benefit of Landlord. Tenant shall be in default under this Lease if it allows any
lien to encumber the Premises as a result of the aforesaid alterations or improvements.
13. Srervices. Unless prohibited by statute, ordinance, law or other generally
acceptable governmental regulation (which shall not be deemed a condemnation or taking
hereunder), Landlord shall cause the Premises to be accessible to Tenant and its employees, with
all services provided 24 hours a day, 7 days a week.
14. Mechanics' Liens, etc.
(a) Tenant will not create or permit to be, created or remain, and will
discharge; any mechanic's, labor'er's or materialman's lien which might be or become a lien,
encumbrance or charge upon the Premises or any part thereof arising from any construction,
alteration or repair activity performed or contracted for by Tenant at the Premises, and Tenant
will not create any other matter or thing whereby the estate, rights and interest of Landlord in the
Premises or any part thereof might be impaired; provided that any mechanic's, laborer's or
materialman's lien may be discharged in accordance with Paragraph 14(b).
4
(b) If any mechanic's, laborer's or materialman's lien arising as provided in
Paragraph 14(a) shall at any time be filed against the Premises or any part thereoL Tenant, within
fifteen (15) days after notice of the filing thereof, will cause it to be discharged of record by
payment, deposit, bond, order of court of competent jurisdiction or otherwise. If Tenant shall
fail to cause such lien to be discharged within such fifteen (15) day period, then Landlord may,
but shall not* be obligated to, discharge it either by paying the amount claimed to be due or by
procuring the discharge of such lien by deposit or by bonding proceedings. Any amount so paid
by Landlord and all reasonable costs and expenses incurred by Landlord in connection therewith
shall constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant
to Landlord upon demand therefore.
(c) Nothing contained in this Lease shall be deemed or construed in any way
as constituting the consent or request of Landlord, express or implied, to any contractor,
subcontractor, laborer or materialman for the performance of any labor or the furnishing of any
materials for any specific alteration, addition, improvement or repair to the Premises or any part
thereof. Nothing in this Lease or in any other document executed by Landlord shall be construed
to constitute an acknowledgment that any work done or material provided by any contractor,
subcontractor or materialman of Tenant was done or provided for the immediate use and benefit
of Landlord.
15. Quiet Enjoyment. Landlord covenants that upon Tenant's paying the Base Rent,
Additional Rent and other charges, herein provided for and observing and keeping all covenants,
agreements and conditions of this Lease on its part to be kept, Tenant shall have quiet, peaceful,
and undisturbed possession and enjoyment of the Premises during the term of this Lease without
hindrance or molestation by anyone claiming by or through Landlord, subject, however, to the
exceptions, reservations and conditions of this Lease.
16. Rights of Entry. Landlord may, upon reasonable notice, at reasonable times and
with reasonable frequency (except in emergency situations, when notice shall not be required),
enter the Premises for purposes of inspection, making routine repairs or providing services.
During the final six (6) months of the term or any extension of this Lease, as applicable,
Landlord may show the Premises to prospective tenants at reasonable times and with reasonable
frequency upon providing Tenant at least twenty-four hours advance notice.
17. Defaults. The occurrence of any one or more of the following events shall
constitute an "Event of Default" and breach of this Lease:
(a) Tenant does not pay when due any and all installments of Base Rent,
Additional Rent or any other charge or payment, required to be made by Tenant under this Lease,
whether or not herein specified as rent;
(b) Tenant violates or fails to perform or comply with any covenant or
condition contained in this Lease; or
(c) The occurrence of a Tenant's bankruptcy.
As used in this Lease, "Tenant's Bankruptcy" means (1) the application by Tenant
for, or its consent to, the appointment of a receiver, trustee or liquidator of Tenant or over
5
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a substantial part of Tenant's assets, (2) the admission iii writing by Tenant of its inability
to pay generally its debts as they become due, (3) the making by Tenant of an assignment
for the benefit of its creditors, (4) the filing by Tenant of a petition or an answer seeking a
reorganization or an arrangement with its creditors or an attempt to take advantage of any
insolvency law, (5) the filing by Tenant of an answer admitting the material allegations of
a petition filed against Tenant in any bankruptcy, reorganization or insolvency
proceeding, (6) the 'entering of an order, judgment or decree by any court of competent
jurisdiction finding Tenant to be insolvent, approving a petition seeking a reorganization
of Tenant, or the appointment of a receiver, trustee or liquidator of Tenant, or of all of its
assets, and the continuation of such order, judgment, decree or proceeding unstayed for
any period of sixty (60) consecutive days after the expiration of any stay thereof, (7) the
commencing by Tenant of any voluntary proceeding under any bankruptcy,
reorganization, arrangement, insolvency, receivership or similar law, or (8) the filing
against Tenant of an involuntary petition in bankruptcy which is not dismissed within
sixty (60) days after being filed. Neither Tenant's interest in this Lease, nor any estate
created hereby in Tenant nor any interest herein or therein, shall pass to any trustee or
receiver or assignee for the benefit of creditors or otherwise by operation of law except as
may specifically be provided by the Bankruptcy Code, Title 1 f, United States Code.
18. Remedies.
(a) Upon the occurrence of an Event of Default, in addition to any other rights
or remedies Landlord may have under this Lease or at law and in equity, Landlord shall at any
time thereafter have the following rights which may be exercised concurrently or successively in
such order as Landlord deems appropriate:
(1) to accelerate the whole or any part of the Base Rent, Additional Rent
and all other sums payable, under this Lease, whether or not payable as rent, for the entite
balance of the term of this Lease together with reasonable attorney's fees;
(h) to terminate this Lease by written notice to Tenant;
(iii) to terminate Tenant's right of possession and re-enter and repossess
the Premises without terminating this Lease in which event Tenant shall remain responsible to
pay Base Rent and Additional Rent when due;
(b) After reentry or retaking or recovering of the Premises, whether by
termination of this Lease or not, Landlord may, but shall be under no obligation to make such
alterations and repairs, if any, as Landlord may deem then necessary or advisable and the cost of
such alterations 'and repairs shall be payable by Tenant upon demand as Additional Rent.
Landlord may relet the Premises or any part or parts thereof; either in. Landlord's name or
otherwise, for a term or terms which may at Landlord's option be less than or exceed the .period
which otherwise would have constituted the balance of the term of this Lease and at such rent or
rents and upon such other terms and conditions as in Landlord's sole discretion may seem
advisable and to such person or person as may in Landlord's discretion seem best.
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(cf"N ) No right or remedy conferred upon or reserved to Landlord is intended to
be exclusive of any other right or remedy herein or by law provided but each shall be cumulative
and in addition to every other right or remedy given herein or now or hereafter existing at law or
in equity.
(d) No waiver by Landlord of any breach by Tenant of any of Tenant's
obligations, agreements or covenants shall be a waiver of any subsequent breach or of any
obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for
any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or
any subsequent breach
19. Casualty Damage. If the Premises are either wholly or partially destroyed by
storm, -fire, lightning or other casualty, Landlord may either elect to (i) repair the damage or
(u) terminate this Lease upon written notice to Tenant within thirty (30) days after the date of the
casualty giving rise to such termination If Landlord elects to terminate this Lease, rent shall be
fully abated and accounted for as of the daze of such casualty. If Landlord elects to repair the
Premises, as of the date of the casualty, rent shall abate in such proportion as use of the Premises
has been destroyed, and Landlord shall restore the Premises to substantially the same condition
as before the damage as speedily as is practicable, whereupon full rent shall recommence.
Tenant waives all claims against Landlord arising from the necessity of repairing any portion of
the Premises, the interruption in the use of the Premises, the termination of this Lease by reason
of destruction of the Premises, and damage to 'or destruction of Tenant's personal property. If
Landlord elects to repair the Premises, Tenant shall repair or replace at Tenant's cost its stock in
trade, trade fixtures, furniture, furnishings, floor coverings and equipment.
20. Condemnation/Eminent Domain.
(a) TotaL If the whole of the Premises shall be acquired or taken by eminent
domain for any public or quasi public use or purpose, then this Lease and the term herein shall
cease and terminate as of the date of title vesting in such proceeding.
(b) Partial If any part of the Premises shall be taken as aforesaid, and such
partial taking shall render the portion not so taken unsuitable for the business of Tenant (except
for the amount of floor space), then this Lease and the term herein shall cease and terminate as
aforesaid. If such partial taking is not extensive enough to render the remaining Premises
unsuitable for the business of Tenant, then this Lease shall continue in effect, except that the rent
shall be reduced in the same proportion that the floor area of the Premises taken bears to the
original floor area demised. Landlord shall, upon receipt of the award in condemnation, make all
necessary repairs or alterations to the Premises, so as to constitute the portion of the premises not
taken as a complete architectural unit, but such work shall not exceed the scope of the work done
in originally constructing said Premises, nor shall Landlord, in any event, be required to spend.
for such work an amount in excess of the amount received by Landlord as damages for the part
of the Premises so taken "Amount received by Landlord" shall mean that part of the award in
condemnation that is free and clear to Landlord of any collection by mortgagees for the value of
the diminished fee.
7
(c) Refund. If this Lease is terminated as provided in this Paragraph 18, the
rent shall be paid up to the day that possession is so taken by public authority, and Landlord shall
make an equitable refund of any rent paid by Tenant in advance.
(d) Award. Tenant shall not be entitled to, and expressly waives all claims to,
any condemnation ward for any taking, whether whole or partial, and whether for diminution in
value of the leasehold or to the fee, although Tenant shall have the limited right to claim from the
condemnor, but not from Landlord, such compensation as may be recoverable by Tenant in its
own right for damage to Tenant's business, such as relocation damages (but not including loss of
w the value of the leasehold interest), and fixtures, if any, and equipment, which Tenant would be
entitled to removed at the termination hereof without consideration for any unexercised option
herein, if any.
21. Subordination.
(a) This Lease shall be subject and subordinate at all times to the lien of any
mortgage or other encumbrance (each hereinafter called "Mortgage") hereafter placed upon the
Premises or, property which includes the Premises and of all renewals, modifications,
consolidations, replacements and extensions thereof Tenant agrees, at the election of the holder
of any such Mortgage, to attom to such holder. Tenant further agrees to execute and deliver
within ten (10) business days after written request such further reasonable instrument or
in- uments evidencing and confirming such subordination of this Lease to the lien of any such
Mortgage.
(b) Any holder of any Mortgage may at any time subordinate its Mortgage to
this Lease, by notice in writing to Tenant, and thereupon this Lease shall be deemed prior to such
Mortgage without regard to their respective dates of execution and delivery and in that event
such holder shall have the same rights with respect to this Lease as though it had been executed
prior to the execution and delivery of the Mortgage and had been assigned to such holder.
(c) This Lease shall not be subordinate to any Mortgage hereafter placed
unless the holder of the Mortgage in question shall provide. a non-disturbance agreement to
Tenant which shall provide in substance that so long as Tenant shall not be in default under this
Lease, the mortgagee shall not name Tenant as a party defendant in any action to foreclose the
Mortgage nor will this Lease be terminated or the possession by Tenant of the Premises be
disturbed by any such action.
22. Estomel Certificates. Within ten (10) business days after the request of
Landlord, at any time and from time to time, Tenant agrees to execute, acknowledge and deliver
to Landlord a written instrument certifying that this Lease is unmodified and in full force and
effect (or if there have been modifications, that it is in full force and effect as modified and
stating the modifications), the dates to which Base Rent, Additional Rent and other charges have
been paid in advance, if any, and stating whether or not Tenant is in default under the Lease, and,
to the best knowledge of Tenant, whether or not Landlord is in default on the performance of any
covenant, agreement or condition contained in this Lease and, if so in either case, specifying
each such default. Tenant shall also certify to such other matters as Landlord may reasonably
require, it being intended that any such statement delivered pursuant to this Paragraph may be
8
relied upon by any prospective purchaser of the fee or leasehold or any mortgagee or prospective
mortgagee thereof or any assignee of the Landlord's interest in this Lease or of any mortgage
upon the fee of the Premises, or any part thereof.
23. Increases in Insurance Premiums. Tenant shall not stock, use or sell any
articles or do anything in or about the Premises that may be prohibited by insurance policies on
the Building or the premises, or any endorsements or. forms attached thereto, or that would
increase any insurance rates and premiums on the Premises without Landlord's consent. Tenant
shall pay as additional rent any increase in premiums for insurance on the Building or the
Premises that may be charged on such insurance carried resulting from Tenant's use and
occupancy of the Premises, whether or not Landlord has consented to the same. If, due to the
(a) occupancy; (b) abandonment; or (c) Tenant's failure to occupy the Premises as herein
provided, any insurance shall be canceled, or if the premiums for any such insurance shall be
increased, then, in any of such events, Tenant shall indemnify and hold Landlord harmless and
shall pay on demand the increased cost of such insurance.
24. Res nations by Landlord. In addition to other rights conferred by this Lease or
by law, Landlord reserves the right, to be exercised in Landlord's sole discretion, and at
Landlord's sole expense, to:
(a) Cause or consent to a change in the name of the Building;
(b) Take all measures as may be necessary or desirable for the safety and
protection of the Building;
(c) Sell or mortgage, or consent to a sale or mortgage of, the Building, the
Premises or the Parking Spaces;
(d) Have passkeys or access cards to the Premises;
(e) Run necessary pipe, conduits and ducts through the Building for the
benefit of other tenants; and
(f) Carry on any work, repairs, alterations or improvements in, on or about
the Building or in the vicinity thereof
Tenant hereby waives any claim to inconvenience caused by such work.
25. Assignment and Subletting. Tenant shall not, either voluntarily or by operation
of law, assign, transfer, mortgage or otherwise encumber this Lease, the Premises, or any part
thereof or permit any part of the Premises to be used or occupied by anyone other than Tenant or
Tenant's employees, without Landlord's prior written consent which shall not be unreasonable
withhold or delayed.
26. Signs. Tenant shall not affix or cause to be affixed to any part of the Building any
sign, advertisement or notice without Landlord's prior written consent.
9
27. Successors and Assigns. As used throughout this Lease (including, without
limitation, in Paragraph 28 hereof), the terms "Landlord" and "Tenant" shall mean the parties
hereto and their respective successors and proper assigns: and the covenants and agreements
contained in this Lease are binding upon and shall insure to the benefit of Landlord and Tenant
and their respective successors and proper assigns.
28. Notices. Any notice or other communication required to be given hereunder shall
be in writing and delivered in person, by overnight delivery service requiring receipt (such as
Federal Express or UPS) or by certified mail, return receipt requested. Each notice shall be
effective upon the date of personal delivery or, in the case of overnight delivery service, on the
next business day or, in the case of mailing, three (3) business days after the date of postmark,
and shall be addressed to a party at its address set forth below, or such other address that may be
specified in accordance herewith.
To the Landlord: Lori Investors, Inc.
c/o Realty Management, Inc.
5010 East Trindle Road, Suite 203
Mechanicsburg, PA 17050
To the Tenant: Mid Atlantic Mortgage Group
400 Holiday Court, Suite 101
Warrenton, VA 20186
ATTN: John Needham
With a copy to: Mid Atlantic Mortgage Group
ATTN: Sharon Heiner
5006 E. Trindle Road, Suite 100
Mechanicsburg, PA 17050
29.. Exterior Attachments. No attachments or fixtures shall be placed on the exterior
of the Premises, the Parking Spaces or the building or otherwise placed on the Premises or the
Parking Spaces unless Tenant shall obtain the prior written consent of Landlord.
30. Limitation on Liability of Landlord. The liability of the Landlord shall be
limited to Landlord's interest in the Premises, and the rents, issues and profits thereof.
31. Surrender. Tenant agrees at the expiration or earlier termination of the term
promptly to surrender the Premises, clean and neat, and in the same condition of order and repair
in which they are required to be kept throughout the term of the Lease.
32. Holdover. If Tenant or any person claiming through Tenant shall retain
possession of the Premises or any part thereof after the expiration or earlier termination of this
Lease, such possession shall be deemed to be under a month-to-month tenancy which shall
continue until either party shall notify the other in writing, at least thirty (30) days prior to the
end of any calendar month, that the party giving such notice elects to terminate such tenancy at
10
the end of such calendar month, in which event such tenancy shall so terminate. The Base Rent
payable with respect to each such monthly period shall be the Base Rent then in effect multiplied
by 1.5 for the month immediately preceding any holdover term Except as aforesaid, such
month-to-month tenancy shall be upon the same terms including without limitation, Additional
Rent set forth in this Lease. The provisions of this Paragraph shall not be deemed to limit or
constitute a waiver of any rights or remedies of Landlord provided herein or at law or in equity
and applicable to unlawful retention of possession or otherwise.
33. Hazardous Substances.
(a) Tenant shall not use the Premises to treat, produce, store, handle, transfer,
process, transport, dispose of or otherwise release any Hazardous Substances (hereinafter
defined) on, from or affecting the Premises which has caused, is causing or could cause
Contamination (hereinafter defined). Tenant has not received any summons, citation, notice of
violation, administrative order, directive, letter or other communication, written or oral, from any
governmental or quasi-governmental authority concerning any intentional or unintentional action
or omission on the part of Tenant with regard to Hazardous Substances on, from or affecting the
Premises.
(b) Tenant and Landlord covenant that the Premises shall be kept free of any
Hazardous Substance which is causing or could cause Contamination and shall not be used to
generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or
process any Hazardous Substance which is causing or could cause Contamination. Tenant and
Landlord shall not cause or permit as a result of intentional or unintentional act or omission on
the part of Tenant or any subtenant the installation of any Hazardous Substance in or on the
Premises or a release of any hazardous Substance onto or from the Premises or suffer the
presence of any Hazardous Substance on the Premises which, in any such case, is causing or
could cause Contamination.
(c) Tenant shall comply with and ensure compliance with all applicable
federal, state and local laws, ordinances, rules and regulations with respect to Hazardous
Substances and shall keep the Premises free and clear of any liens imposed pursuant to such
laws, ordinances, rules and regulations. If Tenant receives any notice from any governmental
authority with regard to Hazardous Substances on, from or affecting the Premises, Tenant shall
(i) immediately notify Landlord and any other person.or governmental or quasi governmental
authority that Tenant is required to notify pursuant to any applicable law at such time as Tenant
is aware of from or affecting the Premises; (u) immediately notify the Landlord at such time as
an environmental investigation or clean-up proceeding is instituted by any person in connection
with the Premises; (iii) fully comply with and assist such environmental investigation and clean-
up proceeding; (iv) promptly execute and complete any Remedial (hereinafter defined) actions
necessary to ensure that no environmental liens or encumbrances are levied against or exist with
respect to the Premises; and (v) promptly, upon written request of Landlord, provide Landlord
from time to time with an environmental site assessment or report, in form and substance
satisfactory to. Landlord. Tenant shall conduct and complete all investigations, studies, sampling
and testing and all Remedial, removal and other actions necessary to clean up and remove all
Hazardous Substances on, from or affecting the Premises in accordance with all applicable
federal, state and local laws, ordinances, rules, regulations and policies, to the satisfaction of
11
Landlord. If Tenant shall fail to take such action, Landlord may make advances or payments
towards performance or satisfaction of the same, but shall be under no obligation to do so; and
all sums so advanced or paid, including all sums advanced or paid in connection with any
judicial or administrative investigation or proceeding relating thereto, including, without
limitation, reasonable attorneys' fee, fines or penalty payments, shall be immediately repayable
by Tenant to Landlord and shall bear interest at the Interest hereinbefore established from the
date advanced or paid by Landlord, until the date paid by Tenant to Landlord, and all sums so
advanced shall be considered rent.
(d) For the purposes of this paragraph, "Hazardous Substances" shall include,
without limitation, any flammable explosives; radioactive materials, hazardous materials;
hazardous wastes; hazardous or toxic substances; hazardous or toxic pollutant or related
materials; asbestos or any material containing asbestos; or any other substance, mixture, waste,
compound, material, element, product or matter as defined by any federal, state or local
environmental law, ordinance, rule or regulation, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended
(49 U.S.C. Sections 1801 et sew.) the Resource Conservation and Recovery Act, as amended (42
U.S.C. Section 9601 et .) the Clean Water Act, as amended (33 U.S.C. Section 1251, gLgpq.),
the Clean Air Act, as amended (42 U.S.C. Sections 7401, e' t sea.), the Clean Streams Law, as
amended (35 P.S. Sections 691.101, et s .), the Solid Waste Management Act, as amended (35
P.S. Sections 6801.101, eta.), and in the regulations adopted and publications promulgated
pursuant thereto at any time.
(e) Tenant agrees to defend, indemnify and hold Landlord harmless from and
against any losses, expenses, liabilities and claims arising from any breach or default by Tenant
of its representations or obligations under this paragraph, including, without limitation, enforcing
the obligations of Tenant under this paragraph, and including, without limitation, reasonable
attorneys' fee.
(f) The obligations and liabilities of Tenant under this paragraph shall survive
the termination of this Lease.
(g) For the purposes of this paragraph, the term "Contamination" shall mean
the uncontained presence of Hazardous Substances on the Premises or arising from the Premises
which may require Remedial action under applicable law.
(h) The term "Remedial" shall mean, without limitation, (i) clean-up or
removal of Hazardous Substances; (ii) such actions as may be necessary to monitor, assess or
evaluate the release or threatened release of Hazardous Substances; (iii) the proper disposal or
release of Hazardous Substances; (iv) the taking of such other actions as may be necessary to
present, minimize or mitigate the damages caused by a release or threatened release of hazardous
substances to the public health or welfare to the environment.
34. Miscellaneous.
(a) Time of the Essence. Time is of the essence of this Agreement and of
every provision hereof of which time is an element.
12
I
(b) Counterparts. This Lease may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which, together, shall
constitute one and the same Lease.
(c) Headings . The headings of the paragraphs or sections of this Lease are for
convenience of reference only and are not to be used to interpret or construe any provisions of
this Lease.
(d) Pennsylvania Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the Commonwealth of Pennsylvania, disregarding
any rules concerning choice or conflict of laws.
(e) Failure to Seek . Redress/No Waiver. The failure of any party to seek
redress for violation of or to insist upon the strict performance of any covenant or condition of
this Lease shall not prevent a subsequent event, which would have originally constituted a
violation, from having all the force and effect of an original violation The receipt by Landlord of
rent with knowledge of the breach of any covenant of this Lease shall not be deemed a waiver of
such breach.
(f) Memorandum of Lease. Upon written request from either party, the party
shall, at any time, join in the execution of a Memorandum of Lease in proper form for recording
or filing in the appropriate office of the County of Dauphin, setting forth the existence and term
of this Lease. The parties shall take such action as may be necessary to permit such recording or
filing.
(g) Additional Instruments. Tenant shall, at the request of Landlord, execute
such additional instruments that Landlord or Landlord's mortgagee may request from time to
time or as may be required or convenient hereunder, not inconsistent herewith.
(h) Entire Agreement This Lease contains the entire agreement of the parties
with regard to the subject matter hereof and supersedes all prior understandings, contracts,
negotiations and correspondence with regard to the subject matter hereof No modification of
this Lease shall be effective unless made in writing and signed by; an authorized officer or
partner of each party; hereof
(i) invalidity of Provisions. In the event any one or more of the. provisions
contained in this Lease shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this
Lease, but his Lease shall be construed as if such invalid, illegal or unenforceable provisions had
never been contained herein.
(j) 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.
35. Force Maieure . Landlord shall be excused for the period of any delay in or
impossibility of the performance of any obligations hereunder, when prevented from doing so by
any cause or causes beyond Landlord's control, which shall include, without limitation, all labor
13
disputes, civil commotion, war, nuclear disturbances, hostilities, sabotage, governmental
regulations or controls, fire or other casualty, interruption in the supply of any utilities, inability
to obtain any; material or services, or through Acts of God.
36. Tenant's Remedies in the Event of Landlord's Default. Landlord shall be
deemed to be in default hereunder if Landlord fails to commence to cure any failure of Landlord
to perform or observe any of its obligations under this Lease within forty-five (45) days after
receiving written notice from Tenant of such failure. Tenant shall not, under any circumstances,
have the right to offset Base Rent and Additional Rent due under this Lease. The liability of the
Landlord shall be limited to Landlord's interest in the office space and the rents, issues and
profits thereof.
IN WITNESS WHEREOF, and intending to be legally; bound hereby, Landlord and
Tenant have executed this Lease as of the date first above written.
ATTEST:
Asst.) Secretary
(CORPORATE SEAL)
WITNESS:
LANDLORD:
Lori Investors, Inc. s ?•p
t ,4- -rb ?motif rrKmS+? .
TENANT:
Mid Atlantic Mortgage Group
BY 4&
14
,r
EXHIBIT B
VIA: Facsimile to Vicki - (540) 347-9881
Regular Mail
October 5, 2007
ATTN: John Needham
Mid-Atlantic Mortgage Group
400 Holiday Court, Suite 101
Warrenton, VA 20186
RE: Rent Increase - Mid Atlantic Mortgage Group
5006 E. Trindle Rd., Suite 100, Mechanicsburg, PA
Dear John:
Realty
Management
Inc.
Under the terns of your lease for the above referenced space, an increase in base rent
was due on October 1, 2007. As per your lease, your base rent shall be increased by
2%. The following is a breakdown of your new rent:
New Base Rent $1,929.69
CAM 515.21
TOTAL RENT $2,444.90
Effective October 1, 2007, please increase your monthly payment to $2,444.90.
Enclosed is the invoice for your new rent for October.
If you should have. any questions regarding this matter, please feel free to call me at
(717) 790-0111 ext. 217.
Sincerely,
V" A-AMji---.-
Wendi A. Aldinger
Manager
Enclosure
5006 East Trindle Road, Suite #203, Mechanicsburg, PA 17050 0 717-790-0111 El FAX 717-790-01 13
Lori Investors - Trindle
5006 E. Trindle Rd/Ste #203
Mechanicsburg, PA 17050
(717) 790-0111
Bill To
Mid Atlantic Mortgage Group
400 Holiday Court, Ste #101
Warrenton, VA 20186
Invoice
Date Invoice #
10/1/2007 340
Project
Quantity Description Rate Amount
1 Monthly rent 1,929.69 1,929.69
Common Area Maintenance Charge 515.21 515.21
Total $2,444.90
4 0 1 0
TRANSMISSION VERIFICATION REP(iR"
DATE, TIME
FAX NO
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LAJ
LORI INVESTORS, INC.
Plaintiff
JOHN NEEDHAM, trading as MID
ATLANTIC MORTGAGE GROUP,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: DOCKET NO. D$- ASIl
: CIVIL ACTION
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
LORI INVESTORS, INC.
Plaintiff
JOHN NEEDHAM, trading as MID
ATLANTIC MORTGAGE GROUP,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO.
CIVIL ACTION
NOTICE TO PLEAD
TO: Lori Investors, Inc.
c/o Samuel L. Andes, Esq.
525 North Twelfth Street
Lemoyne, PA 17043
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF
OR A JUDGMENT MAY BE ENTERED AGAINST YOU.
Respectfully submitted,
FENSTERMACJ4ER AND ASSOCIATES, P.C.
By;
Jo R. Fenstermacher
Sup eme Court I.D. #29940
511 East Trindle Road
Mechanicsburg, PA 17050
(717) 691-5400
Attorney for Defendant
DATED: G I (qo'
LORI INVESTORS, INC.
Plaintiff
JOHN NEEDHAM, trading as MID
ATLANTIC MORTGAGE GROUP,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO.
: CIVIL ACTION
ANSWER WITH NEW MATTER
AND COUNTERCLAIM
AND NOW come the Defendant, by and through his attorneys, Fenstermacher
and Associates, P.C., and avers the following:
1. Admitted.
2. Admitted.
3. Denied. Until November of 2008, the Defendant regularly did business in
Pennsylvania and specifically, in Cumberland County maintained an Office at 5006 East
Trindle Road, Mechanicsburg, Cumberland County, Pennsylvania.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. Denied. Strict proof thereof is demanded at trial.
10. Defendant did not abandon the leasehold and, in fact, the tenants
possessions, furniture, telephones and other items are still on the property and are
being utilized by the Plaintiffs new tenant, Peter J. Russo.
11. Denied. Strict proof thereof is demanded at trial.
12. To the extent, denied. This conclusion of law to which no response is
necessary to the extent a response is required. It is denied.
13. Denied. Strict proof thereof is demanded at trial.
14. Denied. Strict proof thereof is demanded at trial.
15. Denied. Strict proof thereof is demanded at trial.
WHEREFORE, Defendant demands judgment against Plaintiff together with
costs and any other relief the Court deems appropriate.
NEW MATTER
16. Defendant made all rental payments up to November, 2008 at which time he
received a Christmas announcement from the new tenant, Peter J. Russo (a former
business partner of Defendant), that he was moving into Defendant's space in the
building.
17. Defendant stopped making payments when he realized that the Plaintiff had
leased the premises to Mr. Russo and had further taken without due process the
property of the tenant including telephones, furniture and other office equipment and
refused to allow Defendant to retrieve her business files.
18. On or about the spring of 2008, Defendant walked into his leased space and
discovered that Mr. Russo was utilizing his office equipment and furniture.
19. Plaintiff had an obligation to mitigate its damages and as such did lease the
premises to Russo and appropriate credit for the rental should be applied to any amount
allegedly due from Defendant.
20. Plaintiff has taken property from Defendant without due process that is worth
in excess of $20,000.00.
21. Plaintiffs Complaint fails to state a cause of action for which relief can be
granted.
22. Plaintiffs Complaint is barred from the Statute of Limitations.
23. Plaintiff's Complaint is barred by the Doctrine of Latches.
24. Plaintiffs Complaint is barred by the Doctrine of Equitable Estoppel.
25. Plaintiffs Complaint is barred by the Statutes of Frauds.
26. Plaintiff has failed to mitigate their damages if any.
27. Plaintiff's harm, if any, suffered by Plaintiff arose out of their own non
performance of their essential obligations.
COUNTERCLAIM
Conversion
John Needham, trading as Mid Atlantic Mortgage vs. Lori Investors, Inc.
28. Paragraphs 1 through 26 of this pleading are hereby incorporated herein by
reference.
29. Plaintiff converted the personal property belonging to tenant to its use
without first terminating the lease with tenant and securing that property through due
process of law.
30. Plaintiff had a duty to secure any personal possessions of Defendant
through due process and not by illegal distraint.
31. Despite misrepresentations by agents of Plaintiff to the contrary,
Defendant discovered that they had converted the property to Plaintiff's use and were
receiving rent for the property for which they now attempt to hold Defendant
responsible.
32. The conversion of the equipment has denied the Defendant from
utilization of over $20,000.00 worth of equipment.
WHEREFORE, Defendant requests judgment against Plaintiff in an
amount below the mandatory arbitration provisions of the Courts of Cumberland County
together with costs and any other relief the Court deems appropriate.
Respectfully submitted,
FENSTERMACHER AND ASSOCIATES, P.C.
DATED: CP d
ohn R. Fenstermacher
Supreme Court I.D. #29940
5115 East Trindle Road
Mechanicsburg, PA 17050
(717) 691-5400
VERIFICATION
1, John Needham, trading as Mid Atlantic Mortgage Group, have read the
foregoing Answer with New Matter and Counterclaim and hereby certify that the fads set
forth are true and correct to the best of my knowledge, information and befief. This
statement is made subject to the penalties of 18 Pa. Const. Stat. Ann. §4804 relating 'to
unsworn falsification to authorities.
By.
ohn Needham, trading as Mid Atlantic
Mortgage Group
DATED: 4 l4 /off,
.
CERTIFICATE OF SERVICE
-ta
AND NOW, on this /6 day of June, 2008, I, John R. Fenstermacher, Esquire,
hereby certify that I have served the foregoing, by mailing a true and correct copy by first
class mail, addressed as follows:
Samuel L. Andes, Esquire
525 North Twelfth Street
P.O. Box 166
Lemoyne, PA 17043
FENSTERMACHER AND ASSOCIATES, P.C.
John R, Fenstermacher
J
U
T
G
P.. -
LORI INVESTORS, INC.,
Plaintiff
VS.
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2008-2811 CIVIL TERM
JOHN NEEDHAM, trading as MID
ATLANTIC MORTGAGE GROUP,
Defendant
PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM
AND NOW comes the above-named Plaintiff by its attorney, Samuel L. Andes, and
makes the following Reply in this matter:
16. Denied. Defendant did not make any rental payments after October of 2007 and, by
that time, was already a full month behind. As to whether Defendant received a Christmas
announcement from Mr. Russo or not, Plaintiff can make no answer because this information is
within the exclusive control of the Defendant and so Plaintiff denies that statement and demands
proof thereof at trial.
17. Denied. Defendant had ceased making payments on the lease in October of 2007
long before Russo took possession of the premises. Plaintiff denies that Defendant ever took
Defendant's property without the process of law. Further, Plaintiff denies that it ever denied
Defendant the right to access Plaintiff's business files.
18. Denied. Plaintiff is without sufficient information to either admit or deny the
averments in this paragraph because such information is within the exclusive control of the
Defendant so Plaintiff denies those statements and demands proof thereof at trial.
19. Admitted. Plaintiff has taken reasonable steps to litigate its damages but Defendant
is still obligated to Plaintiff for rent and other damages due to Plaintiff under the terms of the
lease.
20. Denied. Plaintiff does not have Defendant's property. The space which was
abandoned by Defendant in October or November of 2007 was not occupied again by Plaintiff
for several months and Plaintiff has no knowledge of who may have removed items from the
space during that time. Further, Plaintiff denies that any property allegedly lost by Defendant
had a value in excess of $20,000.00.
21. Denied. the averments set forth in Plaintiff's complaint are incorporated herein by
reference.
22. Denied. Plaintiff's complaint is not barred by the Statute of Limitations.
23. Denied. Plaintiff s complaint is not barred by the Doctrine of Latches.
24. Denied. Plaintiff's complaint is not barred by the Doctrine of Equitable Estoppel.
25. Denied. Plaintiff's complaint is not barred by the Statute of Frauds.
26. Denied. Plaintiff has not failed to mitigate its damages.
27. Defendant's harm did not arise out of Plaintiff's nonperformance of any obligations.
To the contrary, Plaintiff's damages are a direct result of Defendant's breach of the lease.
COUNTERCLAIM
Plaintiff makes the following Reply to Defendant's Counterclaim in this matter.
28. Plaintiff incorporates herein, by reference, the averments made in its complaint and
the foregoing provisions of this Reply.
29. Denied. Plaintiff did not convert Defendant's personal property. To the contrary,
Defendant abandoned the office furnishings and other tangible personal property which was in
the premises when it abandoned the lease.
30. Denied. Defendant abandoned the lease hold and did not advise Plaintiff of
Defendant's intention for several months, during which time various people, unknown to
Plaintiff, had access to the leased premises by virtue of the keys and other means of access
which were provided to such persons by Defendant. Moreover, Defendant did not notify
Plaintiff that it had abandoned the lease hold or vacated the leased premises. As a result,
Plaintiff had no obligation to secure Defendant's personal property.
31. Denied. Plaintiff denies that it or any of its agents made misrepresentations.
Plaintiff denies that it converted Defendant's property to its use and avers that, to the contrary,
Defendant abandoned the property which it left in the leased premises. Plaintiff denies it has
received rent for any of the items of personal property which Defendant abandoned.
32. Denied. Plaintiff has not done anything to deprive Defendant of the utilization of
its equipment, all of which was in Defendant's leased premises when Defendant abandoned the
lease premises and made no effort to secure the premises or the personal property located
therein. Plaintiff denies that to equipment abandoned by Defendant had a value in excess of
$20,000.00.
WHEREFORE, Plaintiff prays this court to dismiss Defendant's Counterclaim and enter
judgment against Defendant and in favor of Plaintiff in accordance with Plaintiff's original
complaint.
Samuel L. Andes
Attorney for Plaintiff
Supreme Court ID # 17225
525 North 12' Street
Lemoyne, Pa 17043
(717) 761-5361
r
I verify that the statements made in this document are true and correct. I understand that
any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn
falsification to authorities).
LORI INVESTORS, INC.
Date: AlAQU61- bi'acnR
W"
Prop H r ? A z*J rote
CERTIFICATE OF SERVICE
1 hereby certify that I served an original of the foregoing document upon
counsel for the Defendant herein by regular mail, postage prepaid, addressed as follows:
John R. Fenstermacher, Esquire
5115 East Trindle Road
Mechanicsburg, PA 17050
Date: 8 August 2008
Amy arkins
S cretary for Samuel L. Andes
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N am
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GTl "
LORI INVESTORS, INC., ) IN THE COURT OF COMMON
Plaintiff ) PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
VS. )
CIVIL ACTION - LAW
JOHN NEEDHAM, trading as MID )
ATLANTIC MORTGAGE GROUP, ) NO. 08-2811
Defendant )
PRAECIPE
TO THE PROTHONOTARY:
Please mark the above-captioned matter, including all of the claims raised by both
Plaintiff and Defendant, settled and discontinued.
Samuel L. Andes
Attorney for Plaintiff
rj .enstermacher
y for Defendant
FiLF[?-?+.F'ritr
OF THE F^,} T'i_ O."JO IAPY
2009 OCT 13 AM 9: 36
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