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HomeMy WebLinkAbout09-0502IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA RICHARD L. RAUDABAUGH d/b/a DRAPERY FABRICATIONS ; t/a DRAPERYLAND, Plaintiff CASE NO. I/i T? I'Yl'1 V. SMITH LAND & IMPROVEMENT CORP. CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED NOTICE TO DEFEND 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 and 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 S. Bedford Street Carlisle, PA 17013 800-990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notifcacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentada aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 800-990-9108 RICHARD L. RAUDABAUGH iN THE COURT OF COMMON PLEAS OF d/b/a DRAPERY FABRICATIONS CUMBERLAND COUNTY, PENNSYLVANIA t/a DRAPERYLAND, Plaintiff CIVIL ACTION -LAW NO. 09-502 CIVIL vs. SMITH LAND & IMPROVEMENT CORP., Defendant JURY TRIAL DEMANDED IN RE: DEFENDANT'S MOTION TO COMPEL AND STRIKE OBJECTIONS ORDER AND NOW, this /3 ~ day of July, 2009, a brief argument on the above-captioned motion to enforce subpoena is set for Thursday, August 6, 2009, at 2:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. Lowell Gates, Esquire For the Plaintiff Stephanie E. DiVittore, Esquire For the Defendant rlm eo ~ £s m~ ~'~~c~ 7~i 3/vim/ ~'/~ BY THE COURT, =a~.~~ L ~. ~~~~ ~'~~ ~ ~ ~'i i ~ ~ ~ 3 ~~ ~ ,~ , , IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA RICHARD L. RAUDABAUGH d/b/a DRAPERY FABRICATIONS t/a DRAPERYLAND, Plaintiff V. SMITH LAND & IMPROVEMENT CORP. Defendant CASE NO. 0 9- --6r0.2 Oja , . CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, Richard L. Raudabaugh, d/b/a Drapery Fabrications, t/a Draperyland, by and through his attorneys, Gates, Halbruner, Hatch & Guise, P.C. and files this Complaint against Smith Land & Improvement Corporation for breach of contract and violation of the covenant of quite enjoyment, and avers as follows: PARTIES 1. The Plaintiff is Richard L. Raudabaugh, an adult individual, doing business as Drapery Fabrications and t/a Draperyland, with his residence at 50 Devonshire Square, Mechanicsburg, Cumberland County, Pennsylvania. 2. The Defendant is Smith Land & Improvement Corporation with offices at 2010 State Road, Borough of Lemoyne, Cumberland County, Pennsylvania. JURISDICTION 3. This Court has jurisdiction over the parties and the matter under 42 Pa. C.S.A. Section 931. 4. Venue is proper because both parties are located within Cumberland County, Pennsylvania, and the leased property is located within Cumberland County, Pennsylvania. FACTS 5. Plaintiff Richard L. Raudabaugh acquired the Gerber's Draperyland business from the Gerber family in 1975. In 1975, Richard L. Raudabaugh moved the Gerber's Draperyland business from Harrisburg to the commercial space at 1004 Market Street, Borough of Lemoyne, Pennsylvania ("the Property"). The Gerber family owned the 1004 Market Street Property through their company, Gerber Realty Corporation, a Pennsylvania business corporation. Plaintiff and Gerber Realty Corporation entered into a lease agreement in 1975. 6. Plaintiff entered into a second and final lease agreement with Gerber Realty Corporation on November 2, 1999 ("the Lease Agreement") for the lease of the 1,081 square foot space ("the Premises") located within the building at 1004 Market Street, Lemoyne. A true and correct copy of the November 2, 1999 Lease Agreement is attached as Exhibit A. 7. The November 2, 1999 Lease Agreement provided for a one-year term for the period January 1, 2000 to December 31, 2000, and the Lease Agreement provided Richard L. Raudabaugh, as the Tenant, with yearly renewal options. 8. Paragraph 15 of the Lease Agreement provided that if the Landlord sold the Property "the purchaser may terminate this Lease on the thirtieth (30th) day of April in any year upon giving the Tenant notice of such termination prior to the first (lit) day of 2 January in the same year." Please see page 10, paragraph 15 of the Lease Agreement attached hereto as Exhibit A. 9. Paragraph 29 of the Lease Agreement provided that "[e]ither the Tenant or Landlord can terminate this lease by providing no less than ninety (90) days notice of the intention to terminate to the other party in writing at the address provided herein." Please see page 15, paragraph 29 of the Lease Agreement attached hereto as Exhibit A. 10. The termination provision contained in paragraph 15 of the Lease Agreement was never exercised by Gerber Realty Corporation, as Landlord, during the intervening seven (7) years, and the termination provision contained in paragraph 29 of the Lease Agreement was never exercised by Gerber Realty Corporation, as Landlord, or Richard L. Raudabaugh, as Tenant, during the intervening seven (7) years. 11. Gerber Realty Corporation sold the 1004 Market Street Property to 02 Group, LLC owned by Dr. Jennifer and Christopher Zampogna on February 10, 2006. 12. Plaintiff Richard L. Raudabaugh and 02 Group, LLC executed an Addendum to Lease on March 31, 2006 ("the Addendum"). A true and correct copy of the Addendum to Lease is attached as Exhibit B. 13. The term of the Addendum was from March 1, 2006 until February 28, 2009. 14. The Addendum states that "Tenant will have 2 additional three (3) year options for extension of this agreement. Notice of desire to execute options must be given (90) ninety days before expiration of lease term." These renewal options would have allowed Plaintiff to continue to lease term for six (6) more years beyond the initial lease term. 3 15. Defendant Smith Land & Improvement Corporation acquired the 1004 Market Street Property from 02 Group, LLC on April 10, 2008. 16. On May 1, 2008, Defendant Smith Land & Improvement Corporation told Plaintiff Richard L. Raudabaugh that the Property was scheduled to be razed and that he and his company would have to vacate the Property by August 31, 2008. 17. Plaintiff Richard L. Raudabaugh did not agree to vacate the Property on or before August 31, 2008. 18. Defendant Smith Land & Improvement Corporation, and the family's affiliated companies, own and operate the L.B. Smith Ford car dealership and the West Shore Shopping Center all of which adjoin the subject Property on the west side. 19. Plaintiff believes and therefore avers that Defendant Smith Land & Improvement Corporation, and the family's affiliated companies, acquired the Central Lincoln Mercury car dealership in early calendar year 2008 and merged the two car dealerships into one operation and one location at what is now the L.B. Smith Ford Lincoln Mercury car dealership at 1100 Market Street, Lemoyne. 20. Plaintiff believes and therefore avers that when Defendant acquired the subject Property, Defendant knew that it needed more space to operate its combined car dealership, and in fact, Ford Motor Corporation required Defendant to obtain more land as a condition of its combined dealership. 21. In June 2008, less than two months after Defendant acquired the Property, Defendant started work on the Property causing excessive noise, dirt, dust, traffic and parking problems for Plaintiff's drapery business. 4 22. Starting in June 2008, Defendant dug up large underground fuel tanks on the Property. 23. Starting in June 2008, Defendant began parking dozens of new Ford trucks along the front of the Property (the portion of the Property facing Market Street) which prevented Plaintiff s customers and potential customers from seeing Plaintiff's business store front. 24. By the end of June 2008, Defendant had also torn down the large sign along Market Street on which Plaintiff had his business name and advertisement and which sign directed patrons to Plaintiff s business in the Property. 25. With the L.B. Smith Ford Lincoln Mercury car dealership spilling over on the Property from 1100 Market Street, and the excavation taking place on the Property, the Property and Building in which Plaintiff had his drapery business appear to be closed to business and his customers. 26. Plaintiff experienced a decrease in business revenues in May 2008 and the revenue decrease continued into June, July and August of 2008. 27. By letter dated July 2, 2008, Defendant then told Plaintiff to vacate the Premises on or before October 3, 2008. 28. Defendant Smith Land & Improvement Corporation substantially impaired Plaintiff s possessory interests in the leased Property by commencing construction activities on the Property, tearing down the large advertising sign and by storing dozens of Ford trucks on the Property. 5 29. Plaintiffs use of and benefit from the Property was substantially decreased by Defendant's interference with a right or privilege which is necessary to the enjoyment of the Property. 30. By August 31, 2008, because of the excavation, truck storage, sign removal, and threatened demolition of the building, Plaintiff was forced to vacate the Property and returned the keys to the Property to Defendant. COUNTS 1. BREACH OF CONTRACT 31. Paragraphs 1 through 30 are incorporated herein as though set forth in full herein. 32. Defendant and Plaintiff are parties to the Lease Agreement to lease the Property and Premises therein located at 1004 Market Street, Lemoyne. 33. Plaintiff paid to Defendant all required monthly rent and all other amounts in a timely manner all in accordance with the Lease Agreement. 34. Plaintiff complied with all of the terms and conditions of the Lease Agreement. 35. Defendant breached the Lease Agreement by forcing Plaintiff to vacate the Property prior to the natural termination of the lease term and Plaintiff s right to exercise its renewal options. 36. Forcing Plaintiff to relocate caused Plaintiff to incur damages in the form of lost business revenue, moving costs, the cost of higher rent at the new location, lost 6 improvements to the Property, lost advertising expenses, lost productivity and costs to improve the new leasehold property. RELIEF 37. Plaintiff seeks relief in the amount of $75,000.00 against Defendant Smith Land & Improvement Corporation. COUNT II BREACH OF THE COVENANT OF QUIET ENJOYMENT 38. Paragraphs 1 through 37 are incorporated herein as though set forth in full herein. 39. Plaintiff leased the Property from Defendant, since Defendant acquired the Property and in so doing, assumed the Lease Agreement. 40. Plaintiff had an implied covenant of quite enjoyment with Defendant. 41. Defendant breached the covenant of quite enjoyment when Defendant began excavation and construction on the Property and began storing dozens of new Ford trucks on the Property and through other activities hindered Plaintiffs drapery business. 42. Defendant breached the covenant of quite enjoyment when Defendant forced Plaintiff to vacate the Property prior to the natural termination of the lease term and Plaintiff's right to exercise its renewal options. 43. Forcing Plaintiff to relocate caused damage to Plaintiff in the form of lost business revenue, moving costs, the cost of higher rent at the new location, lost 7 improvements to the Property, lost advertising expenses, lost productivity and costs to improve the new leasehold property. 44. Defendant's conduct was extreme and outrageous. RELIEF 45. Plaintiff seeks relief in the amount of $75,000.00 against Defendant Smith Land & Improvement Corporation and punitive damages as this Court deems just and appropriate. COUNT III TRESPASS 46. Paragraphs 1 through 45 are incorporated herein as though set forth in full herein. 47. Defendant's action of excavation and construction on the Property and the storage of vehicles on the Property constituted a constructive eviction. 48. Defendant's constructive eviction was wrongful. 49. Defendant's conduct was extreme and outrageous. RELIEF 50. Plaintiff seeks relief in the amount of $75,000.00 against Defendant Smith Land & Improvement Corporation and punitive damages as this Court deems just and appropriate. 8 Wherefore, Plaintiff respectfully requests this Court grant to Plaintiff the requested relief against Defendant for breach of contract, breach of the covenant of quiet enjoyment and trespass. Respectfully January 28, 2009 PA Sar E. McCarroll PA 1102 Gates, Halbruner, Hatch & Guise, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043-1144 Phone: (717) 731-9600 9 EXHIBIT "A" LEASE 1? THIS LEASE, dated the 2L "b day of N)ovemmetr 1999 between GERBER REALTY CORPORATION, (hereinafter referred to as the "Landlord"), and RICHARD RAUDABAUGH DBA DRAPERY FABRICATIONS, INC., T/A DRAPERYLAND, (hereinafter referred to as the "Tenant"). W I T N E S S E T H: That the Landlord hereby demises and leases unto the Tenant, and the Tenant hereby hires and takes from the Landlord for the term and upon the rentals hereinafter specified, the premises described as follows, situated in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania: The ground floor of the Gerber Realty Building, 1004 Market Street, Lemoyne, PA 17043, and adjacent to Cobbler's Shoe Store, the leased area being 23' x 47' (1081 square feet). The term of this demise shall be for One Year beginning 1-1-2000 and ending 12-31-2000. The rent for the demised premises shall be $698.00 per month. • The said rent is to be payable monthly in advance on the first (1st) day of each calendar month for the term hereof, at the office of Gerber Realty Corporation, 1004 Market Street, Lemoyne, PA 17043, or as may be otherwise directed by the Landlord in writing. THE ABOVE LETTING IS UPON THE FOLLOWING CONDITIONS: 1. The Landlord covenants that the Tenant, on paying the 0--id rental and performing the covenants and conditions in this Lease contained, shall and may peaceably and quietly have, hold and enjoy the demised premises for the term aforesaid. 2. The Tenant covenants and agrees to use the demised premises as a business premises being a drapery workroom and associated business and agrees not to use or permit the premises to be used for any other purpose without the prior written consent of the Landlord endorsed hereon. 3. The Tenant shall, without any previous demand therefor, pay to the Landlord, or its ag times and in the manner above provided. payment of said rent, or any installment and in the manner above provided, and if default for ten days after becoming due, be dispossessed for non-payment of rent, ent, the said rent at the In the event of the non- thereof, at the times the same shall remain in or if the Tenant shall or if the leased - 2 - premises shall be deserted or vacated, the Landlord or its agents shall have the right to and may enter the said premises as the agent of the Tenant, either by force or otherwise, without being liable for any prosecution or damages therefor, and may relet the premises as the agent of the Tenant, and receive the rent therefor, upon such terms as shall be satisfactory to the Landlord, and all rights of the Tenant to repossess the premises under this Lease shall be forfeited. Such re-entry by the Landlord shall not operate to release the Tenant from any rent to be paid or covenants to be performed hereulldej du.ciily Liie full term of this Lease. For the purpose of reletting, the Landlord shall be authorized to make such repairs or alterations in or to the leased premises as may be necessary to place the same in good order and condition. The Tenant shall be liable to the Landlord for the cost of such repairs or alterations, and all expenses of such reletting. If the"sum realized or to be realized from the reletting is insufficient to satisfy the monthly or term rent provided in this Lease, the Landlord, at its option, may require the Tenant to pay such deficiency month by month, or may hold the Tenant in advance for the entry deficiency to be realized during the term of the reletting. The Tenant shall not be entitled to any surplus accruing as a result of the reletting. The Landlord is hereby granted a lien, in addition to any statutory lien or right to distrain that may exist, on all personal property of the Tenant in or upon the demised premises, to secure payment of the rent and performance of the covenants and conditions of this - 3 - lease. The Landlord shall have the right, as agent of the Tenant, to take possession of any furniture, fixtures or other personal property of the Tenant found in or about the premises, and sell the same at public or private sale and to apply the proceeds thereof to the payment of any monies becoming due under this lease, the Tenant hereby waiving the benefit of all laws exempting property from execution, levy and sale on distress or judgment. The Tenant agrees to pay, as additional rent, all attorney's fees and other expenses incurred by the Landlord in enforcing any of the obligation-. undcr this Lease. 4. The Tenant shall not sub-let the demised premises nor any portion thereof, nor shall this lease be assigned by the Tenant without the prior written consent of the Landlord. 5. The Tenant has examined the demised premises, and accepts them in their present condition (except as otherwise expressly provided herein) and without any representations on the part of the Landlord or its agents as to the present or future condition of the said premises. The Tenant shall keep the demised premises in good condition, and shall redecorate, paint and renovate the said premises as may be necessary to keep them in repair and good appearance. The Tenant shall quit and surrender the premises at the end of the demised term in as good condition as the reasonable use thereof will permit. The Tenant shall not make any alterations, additions, or improvements to 4 - said premises without the prior written consent of the Landlord. All erections, alterations, additions and improvements, whether temporary or permanent in character, which may be made upon the premises either by the Landlord or the Tenant, except furniture or movable trade fixtures installed at the expense of the Tenant, shall be the property of the Landlord and shall remain upon and be surrendered with the premises as a part thereof at the termination of this Lease, without compensation to the Tenant. The Tenant further agrees to keep said premises and all parts thereof in a clean and sanitary condition and free from trash. inflammable material and other objectionable matter. If this Lease covers premises, all or a part of which are on the ground floor, Landlord further agrees to keep the sidewalks in front of such ground floor portion of the demised premises clean and free of obstructions, snow and ice. 6. In the event that any mechanics' lien is filed against the premises as a result of alterations, additions or improvements made by the Tenant, the Landlord, at its option, after thirty days, notice to the Tenant, may terminate this lease and may pay the said lien, without inquiring into the validity thereof, and the Tenant shall forthwith reimburse the Landlord the total expense incurred by the Landlord in discharging the said lien, as additional rent hereunder. - 5 - 7. The Tenant agrees to replace at the Landlord's expense any and all glass which may become broken in and on the demised premises. Plate glass and mirrors, if any, shall be insured by the Tenant at their full insurable value in a company satisfactory to the Landlord. Said policy shall be of the full premium type, and shall be deposited with the Landlord or its agent. 8. The Landlord shall not be responsible for the loss of or damage to property, or injury to persons, occurring in or about the demised premises, by reason of any existing or future condition, defect, matter or thing in said demised premises or the property of which the premises are a part, or for the acts, omissions or negligence of other persons or tenants in and about the said property. The Tenant agrees to indemnify and save the Landlord harmless from all claims and liability for losses of or damages to property, or injuries to persons occurring in or about the demised premises. 9. Utilities and services furnished to the demised premises for the benefit of the Tenant shall be provided and paid for as follows: water by the Landlord; gas by the Landlord; electricity by the Tenant; heat by the Landlord; hot water by the Landlord; heat and air conditioning shall be provided by the Landlord during Gerber Fabrics normal business hours. - 6 - .. • The Landlord shall not be liable for any interruption or delay in any of the above services for any reason. The Landlord shall not be obligated to replace the central air conditioning system in the event that the air conditioning unit for some reason fails to operate properly. 10. The Landlord, or its agents, shall have the right to enter the demised premises at reasonable hours in the day or night to examine the same, or to run telephone or other wires, or to make such repairs; ad- itions or alterations as it --hall deem necessary for the safety, preservation or restoration of the improvements, or for the safety or convenience of the occupants or users thereof (there being no obligation, however, on the part of the Landlord to make any such repairs, additions or alterations), or to exhibit the same to prospective purchasers and put upon the premises a suitable "For Sale" sign. For three months prior to the expiration of the demised term, the Landlord, or its agents, may similarly exhibit the premises to prospective tenants, and may place the usual "To Let" signs thereof. 11. In the event of the destruction of the demised premises or the building containing the said premises by fire, explosion, the elements or otherwise during the term hereby created, or previous thereto, or such partial destruction thereof as to render the premises wholly untenantable or unfit for occupancy, or should the demised premises be so badly injured - 7 - • that the same cannot be repaired within ninety days from the happening of such injury, then and in such case the term hereby created shall, at the option of the Landlord, cease and become null and void from the date of such damage or destruction, and the Tenant shall immediately surrender said premises and all the Tenant's interest therein to the Landlord, and shall pay rent only to the time of such surrender, in which event the Landlord may re-enter and re-possess the premises thus discharged from this Lease and may remove all parties therefrom. Should the demised premises be rendered untenantable and unfit for occupancy, but yet be repairable within ninety days from the happening of said injury, the Landlord may enter and repair the same with reasonable speed, and the rent shall not accrue after said injury or while repairs are being made, but shall recommence immediately after said repairs shall be completed. But if the premises shall be so slightly injured as not to be rendered untenantable and unfit for occupancy, then the Landlord agrees to repair the same with reasonable promptness and in that case the rent accrued and accruing shall not cease or determine. The Tenant shall immediately notify the Landlord in case of fire or other damage to the premises. 12. The Tenant agrees to observe and comply with all laws, ordinances, rules and regulations of the Federal, State, County and Municipal authorities applicable to the business to be conducted by the Tenant in the demised premises. The Tenant - 8 - . . agrees not to do or permit anything to be done in said premises, or keep anything therein, which will increase the rate of fire insurance premiums on the improvements or any part thereof, or on property kept therein, or which will obstruct or interfere with the rights of other tenants, or conflict with the regulations of the Fire Department or with any insurance policy upon said improvements or any part thereof. In the event of any increase in insurance premiums resulting from the Tenant's occupancy of the premises, or from any act or omission on the part of the Tenant; the Tenant agrees to pay said increase in insurance premiums on the improvements or contents thereof as additional rent. 13. No sign, advertisement or notice shall be affixed to or placed upon any part of the demised premises by the Tenant, except in such manner, and of such size, design and color as shall be approved in advance in writing by the Landlord. Existing types and size of signs have already been approved by the Landlord. 14. This Lease is subject and hereby subordinated to all present and future mortgages, deeds of trust and other encumbrances affecting the demised premises or the property of which said premises are a part. The Tenant agrees to execute, at no expense to the Landlord, any instrument which may be deemed necessary or desirable by the Landlord to further effect the - 9 - • • subordination of this Lease to any such mortgage, deed of trust or encumbrance. 15. In the event of the sale by the Landlord of the demised premises, or the property of which said premises are a part, the Landlord or the purchaser may terminate this Lease on the thirtieth (30th) day of April in any year upon giving the Tenant notice of such termination prior to the first (1st) day of January in the same year. 16. The rules and regulations regarding the demised premises, affixed to this Lease, if any, as well as any other and further reasonable rules and regulations which shall be made by the Landlord, shall be observed by the Tenant and by the Tenant's employees, agents and customers. The Landlord reserves the right to rescind any presently existing rules applicable to the demised premises, and to make such other and further reasonable rules and regulations as, in its judgment, may from time to time be desirable for the safety, care and cleanliness of the premises, and for the preservation of good order therein, which rules, when so made and notice thereof given to the Tenant, shall have the same force and effect as if originally made a part of this Lease. Such other and further rules shall not, however, be inconsistent with the proper and rightful enjoyment by the Tenant of the demised premises. - 10 - • 17. In case of violation by the Tenant of any of the covenants, agreements and conditions of this Lease, or of the rules and regulations now or hereafter to be reasonably established by the Landlord, and upon failure to discontinue such violation within ten days after notice thereof given to the Tenant, this Lease shall thenceforth, at the option of the Landlord, become null and void, and the Landlord may re-enter without further notice or demand. The rent in such case shall become due, be apportioned and paid on and up to the day of such re-entry, and the Tenant shall be liahlP for all loss or damage resulting from such violation as aforesaid. No waiver by the Landlord of any violation or breach of condition by the Tenant shall constitute or be construed as a waiver of any other violation or breach of condition, nor shall lapse of time after breach of condition by the Tenant before the Landlord shall exercise its option under this paragraph operate to defeat the right of the Landlord to declare this lease null and void and to re-enter upon the demised premises after the said breach or violation. 18. All notices and demands, legal or otherwise, incidental to this Lease, or to the occupation of the demised premises, shall be in writing. If the Landlord or its agent desires to give or serve upon the Tenant any notice or demand, it shall be sufficient to send a copy thereof by registered mail, addressed to the Tenant at the demised premises, or to leave a - 11 - 1 . , • • copy thereof with a person of suitable age found on the premises, or to post a copy thereof upon the door to said premises. Notices from the Tenant to the Landlord shall be sent by registered mail or delivered to the Landlord at the place hereinbefore designated for the payment of rent, or to such party or place as the Landlord may from time to time designate in writing. 19. It is further agreed that if at any time during the term of t-hiG Lease the Tenant -hall make any assJ9nnenL for the benefit of creditors, or be decreed insolvent or bankrupt according to law, or if a receiver shall be appointed for the Tenant, then the Landlord may, at its option, terminate this Lease, exercise of such option to be evidenced by notice to that effect served upon the assignee, receiver, trustee or other person in charge of the liquidation of the property of the Tenant or the Tenants estate, but such termination shall not release or discharge any payment of rent payable hereunder and then accrued, or any liability then accrued by reason of any agreement or covenant herein contained on the part of the Tenant, or the Tenant's legal representatives. 20. In the event that the Tenant shall remain in the demised premises after the expiration of the term of this Lease without having executed a new written lease with the Landlord, such holding over shall not constitute a renewal or extension of - 12 - ;{ , . i this Lease. The Landlord may, at its option, elect to treat the Tenant as one who has not removed at the end of his term, and thereupon be entitled to all the remedies against the Tenant provided by law in that situation, or the Landlord may elect, at its option, to construe such holding over as a tenancy from month to month, subject to all the terms and conditions of this Lease, except as to duration thereof, and in that event the Tenant shall pay monthly rent in advance at the rate provided herein as effective during the last month of the demised term. 21. If the property or any part thereof wherein the demised premises are located shall be taken by public or quasi- public authority under any power of eminent domain or condemnation, this Lease, at the option of the Landlord, shall forthwith terminate and the Tenant shall have no claim or interest in or to any award of damages for such taking. 22. Any dispute arising under this Lease shall be settled by arbitration. Then Landlord and Tenant shall each choose an arbitrator, and the two arbitrators thus chosen shall select a third arbitrator. The findings and award of the three arbitrators thus chosen shall be final and binding on the parties hereto. - 13 - . I U . ? 0 23. No rights are to be conferred upon the Tenant until this lease has been signed by the Landlord, an executed copy of the Lease has been delivered to Tenant. 24. The foregoing rights and remedies are not intended to be exclusive but as additional to all rights and remedies the Landlord would otherwise have by law. 25. All of the terms, covenants and conditions of this lease shall inure to the benefit of and be binding upon the respective heirs, executors, administrators, successors and assigns of the parties hereto. However, in the event of the death of the Tenant, if an individual, the Landlord may, at its option, terminate this Lease by notifying the executor or administrator of the Tenant at the demised premises. 26. This Lease and the obligation of Tenant to pay rent hereunder and perform all of the other covenants and agreements hereunder on part of Tenant to be performed shall in nowise be affected, impaired or excused because Landlord is unable to supply or is delayed in supplying any service expressly or impliedly to be supplied or is unable to make, or is delayed in making any repairs, additions, alterations or decorations or is unable to supply or is delayed in supplying any equipment or fixtures if Landlord is prevented or delayed from so doing by reason of governmental preemption in connection with the National - 14 - . 0. 1 1 . 1 0 0 Emergency declared by the President of the United States or in connection with any rule, order or regulation of any department or subdivision thereof of any governmental agency or by reason of the conditions of supply and demand which have been or are affected by the war. 27. This instrument may not be changed orally. 28. Tenant will maintain in full force and effect for the duration of this lease, liability insurance, issued by an "A" rated company licensed to do business in Pennsylvania, in the minimum amount of Five Hundred Thousand ($500,000.00) Dollars coverage, with the Landlord named as an additional insured. The Tenant will bear, pay and discharge when and as the same become due and payable, all judgments and lawful claims for damages or otherwise against said Landlord arising from its use or occupancy of said leased premises, and will assume the burden and expense of defending all such suits, whether brought before or after the expiration of this Lease, and will protect, indemnify and save harmless the said Landlord, its agents, servants, employees, and public at large by reason of, or on account of, the use or misuse of the premises hereby leased, or any part thereof, due to the negligence of the Tenant or the agents of the Tenant. 29. Either the Tenant or Landlord can terminate this lease by providing no less than ninety (90) days notice of the - 15 - f 40 . 6 0 • intention to terminate to the other party in writing at the addresses provided herein. IN WITNESS WHEREOF, the said parties have hereunto set their hands and seals the day and year first above written. WITNESS: LANDLORD: GERBER REALTY CORPORATION BY - Title. ?+ Q, 5 TENANT: RICHARD RAUDABAUGH DBA DRAPERY FABRICATIONS, INC., T/A RD RAUDABAUGH . DRAPE? .YLAISID BY (i a(??•?C Ak?-?tm - 16 - 9 ?• w EXHIBIT "B" Addendum to Lease This is an addendum to the lease dated November 2"d'1999 between Gerber Realty Corporation and Richard Raudabaugh dba Drapery Fabrications, Inc., t/a Draperyland (hereinafter referred to as the "Tenant".) The original lease agreement was assigned to 02 Group, LLC on February 10`", 2006. From this point on, 02 Group, LLC will be the "Landlord." Tenant has agreed to expand the current leased area from - The ground floor of the Gerber Building, 1004 Market Street, Lemoyne, PA 17043, the leased area being 23' X 47' (1081 sq ft.). To a leased area in the same location being 23' X 67' (1541 sq ft). The rent for this area will remain at the current rent of $698. per month until Gerber fabrics has vacated the expansion area, at which time the new rent will be $950. per month. Rents are payable on the first day of the month to: 02 Group, LLC 1520 Market Street Camp Hill, PA 17011 The term of this lease will be from March 1", 2006 until February 280', 2009. There will be a 3% annual increase in the monthly rent amount that will take effect on the anniversary date of this agreement. The monthly rent in year 2 will be $978.50 per month and in year 3 will be $1007.85 per month. Tenant will have 2 additional three (3) year options for extension of this agreement. Notice of desire to execute options must be given 90 (ninety) days before expiration of lease term. *13XQ6k4W, 16hris ogna Date Richard Raudabaugh CJ2 Gro LLC Draperyland Landlord Tenant 4 M f IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA RICHARD L. RAUDABAUGH d/b/a DRAPERY FABRICATIONS, INC. t/a DRAPERYLAND, Plaintiff CASE NO. V. SMITH LAND & IMPROVEMENT CORP. CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED VERIFICATION I, Richard L. Raudabaugh, hereby verify that the statements made in the foregoing Complaint are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: RQ?ff chard L. Raudabaugh, PI 'nt V {Al I ?f SHERIFF'S RETURN - REGULAR CASE NO: 2009-00502 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND RAUDABAUGH RICHARD L ET AL VS SMITH LAND & IMPROVEMENT CORP NOAH CLINE Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SMITH LAND & IMPROVEMENT CORP DEFENDANT the at 0010:34 HOURS, on the 4th day of February, 2009 at 2010 STATE ROAD LEMOYNE, PA 17043 by handing to JEFFREY A SAVORD ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 13.50 Affidavit .00 Surcharge 10.00 R. Thomas Kline Postage .42 41.92 02/05/2009 GATES HALBRUNER HATCH Sworn and Subscibed to By: before me this day Deputy Sheriff of A.D. y.. r? cat LLJ j_ CL- LL! y d .? CO CL CV V w) Stephanie E. DiVittore, Esquire John M. Coles, Esquire RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Smith Land & Improvement Corp. RICHARD L. RAUDABAUGH d/b/a DRAPERY FABRICATIONS, t/a DRAPERYLAND, V. Plaintiff SMITH LAND & IMPROVEMENT CORP., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 09-502 CIVIL ACTION -- LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO: Curtis Long, Prothonotary Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013 Kindly enter the appearance of Stephanie E. DiVittore, John M. Coles and Rhoads & Sinon LLP as counsel on behalf of Defendant Smith Land & Improvement Corporation in this action. Respectfully submitted, RHOADS & SINON LLP By: Stephanie E. DiVittore John M. Coles One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Smith Land & Improvement Corporation 733027.1 •r CERTIFICATE OF SERVICE I hereby certify that on this A(,Y` day of February, 2009, a true and correct copy of the foregoing Praecipe for Entry of Appearance was served by means of United States mail, first class, postage prepaid, upon the following: Lowell R. Gates, Esquire Gates, Halbruner, Hatch & Guise, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043-1144 733027.1 o ?? ` ? ? c r .? _--s A , ?,?+' ? ;4 ? _ _ ?? t ti+-i .. i ?.. RICHARD L. RAUDABAUGH d/b/a DRAPERY FABRICATIONS, t/a DRAPERYLAND, Plaintiff V. SMITH LAND & IMPROVEMENT CORP., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 09-502 CIVIL ACTION --LAW JURY TRIAL DEMANDED NOTICE TO PLEAD To: Plaintiff Richard L. Radabaugh d/b/a Drapery Fabrications t/a Draperyland c/o Lowell R. Gates, Esquire Gates, Halbruner, Hatch & Guise, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043-1144 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, RHOADS & SINON LLP By. l'?h v Stephanie E. DiVittore John M. Coles One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Smith Land & Improvement Corporation Stephanie E. DiVittore, Esquire John M. Coles, Esquire RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Smith Land & Improvement Corp. RICHARD L. RAUDABAUGH d/b/a DRAPERY FABRICATIONS, t/a DRAPERYLAND, Plaintiff V. SMITH LAND & IMPROVEMENT CORP., Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No. 09-502 CIVIL ACTION -- LAW JURY TRIAL DEMANDED ANSWER & NEW MATTER NOW COMES Defendant Smith Land & Improvement Corporation ("Smith Land'), through its attorneys, Rhoads & Sinon LLP, and files the following Answer and New Matter stating as follows: PARTIES 1. Admitted based on information and belief. 2. Admitted. JURISDICTION 3. Denied. The allegations of Paragraph 3 are conclusions of law to which no response is required. To the extent a response is deemed appropriate, the same are denied. 4. Denied. The allegations of Paragraph 4 are conclusions of law to which no response is required. To the extent a response is deemed appropriate, the same are denied. 732944.1 FACTS 5. Denied. Smith Land is without information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 5 and the same are thus specifically denied. Proof of these allegations is demanded at time of trial in this matter. 6. Denied. Smith Land is without information sufficient to form a belief as to the truth or falsity of the allegation in Paragraph 6 that he entered into a lease with Gerber Realty Corporation to lease 1,081 square foot space within the building at 1004 Market Street, Lemoyne and the same is thus specifically denied. Proof of this allegation is demanded at time of trial in this matter. Further, the Lease Agreement attached as Exhibit A is a writing that speaks for itself and any attempts to characterize or interpret the same are specifically denied. 7. Denied. The document attached as Exhibit A is a writing that speaks for itself and any attempts to characterize or interpret the same are specifically denied. 8. Denied. The document attached as Exhibit A is a writing that speaks for itself and any attempts to characterize or interpret the same are specifically denied. 9. Denied. The document attached as Exhibit A is a writing that speaks for itself and any attempts to characterize or interpret the same are specifically denied. 10. Denied. Smith Land is without information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 10 and the same are thus specifically denied. Proof of these allegations is demanded at time of trial in this matter. 11. Denied. Smith Land is without information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 11 and the same are thus specifically denied. Proof of these allegations is demanded at time of trial in this matter. -2- 12. Denied. Smith Land is without information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 12 and the same are thus specifically denied. Proof of these allegations is demanded at time of trial in this matter. Further, the document attached as Exhibit B is a writing that speaks for itself and any attempts to characterize or interpret the same are specifically denied. 13. Denied. The document attached as Exhibit B is a writing that speaks for itself and any attempts to characterize or interpret the same are specifically denied. 14. Denied. It is specifically denied that the Lease and subsequent Addendum allowed Plaintiff to continue to lease the premises in question for six years beyond the initial lease term. Further, the document attached as Exhibit B is a writing that speaks for itself and any attempts to characterize or interpret the same are specifically denied. By way of further response, the Addendum did not in any way invalidate, void or otherwise nullify the provisions of the Lease including, without limitation, Paragraph 29 of the Lease authorizing the Landlord or Tenant to terminate the lease, for any reason, upon 90 days notice. 15. Admitted. 16. Admitted in part, denied in part. It is admitted that after purchasing the property, Smith Land began working with tenants to obtain a schedule for the tenants to move from the property in order for it to raze the building. It is specifically denied that Smith Land informed Plaintiff on May 1, 2008, that he would have to vacate by August 31, 2008. By way of further response, Smith Land made numerous attempts to work with Plaintiff to discuss Plaintiff's vacating the premises, including assistance in relocating Plaintiff's business. Plaintiff refused to cooperate with Smith Land and, as a result, on July 2, 2008, Smith Land, through its counsel, -3- forwarded a formal notice that it was terminating the lease, pursuant to Paragraph 29 thereof, and Plaintiff would be required to vacate the premises within 90 days, on or before October 3, 2008. 17. Denied as stated. It is admitted that Plaintiff refused to voluntarily vacate the property or otherwise cooperate with Smith Land. It is specifically denied that Smith Land required Plaintiff to vacate the property on or before August 31, 2008. By way of further response, pursuant to the July 2, 2008 Notice, Plaintiff was obligated to vacate the property on or before October 3, 2008. 18. Denied as stated. It is admitted that Smith Land owns the real property on which the West Shore Plaza is located. It is also admitted that Smith Land owns the real property on which the L.B. Smith Ford Lincoln Mercury dealership, owned by L.B. Smith Ford Lincoln Mercury, Inc., is located. It is admitted that these properties border, on the west side, the Property at issue in this litigation. The remaining allegations of this Paragraph, including Plaintiff's representations of Smith Land and "the family's affiliated companies" are specifically denied. 19. Denied as stated. It is admitted that in 2008, L.B. Smith Central Lincoln Mercury, owned by L.B. Smith Central Lincoln Mercury, Inc., and L.B. Smith Lincoln Mercury, owned by L.B. Smith Lincoln Mercury, Inc. were consolidated into one operation on Market Street in Lemoyne, owned by L.B. Smith Ford Lincoln Mercury, Inc. The remaining allegations of this Paragraph, including Plaintiff's representations of Smith Land and "the family's affiliated companies" are specifically denied. 20. Denied. The allegations of Paragraph 20 are specifically denied and proof thereof is demanded at the time of trial in this matter. -4- 21. Admitted in part, denied in part. It is admitted that Smith Land began work on portions of the Property after its acquisition in 2008. It is specifically denied that work performed by Smith Land caused noise, dirt, dust, traffic or parking problems for Plaintiff, Plaintiff's business, Plaintiff's customer or any other tenant in the property. Specific proof of these allegations is demanded at trial in this matter. 22. Admitted in part, denied in part. It is admitted that, in connection with work and remediation performed by Smith Land on the property, it was necessary to dig up underground fuel storage tanks that were previously located on the property. It is specifically denied that such work caused any problems or otherwise interfered with Plaintiff's use of his leased space. 23. Denied as stated. It is admitted that after its acquisition, Smith Land utilized a portion of the Property for parking vehicles. it is specifically denied that Smith Land's use of the Property, for parking vehicles or otherwise, prevented Plaintiff's customers or potential customers from seeing Plaintiff's business storefront or otherwise interfered with Plaintiff's business. 24. Denied as stated. It is admitted that Smith Land, in performing renovations and other work on the Property, removed a sign that contained information regarding Plaintiff's business. It is specifically denied that this was Plaintiff's only business sign or advertisement or that removal of the same interfered with the ability of Plaintiff's customers, or potential customers. 25. Denied. The allegations of Paragraph 25 are specifically denied and proof thereof is demanded at time of trial. -5- 26. Denied. The allegations of Paragraph 26 are specifically denied and proof thereof is demanded at time of trial. 27. Denied as stated. It is admitted that Smith Land issued a Notice pursuant to Section 29 of the Lease Agreement terminating the Lease and directing that Plaintiff vacate the property within 90 day, on or before October 3, 2008. It is specifically denied that Smith Land acted improperly or without legal basis in so doing. 28. Denied. The allegations of Paragraph 28 are legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are specifically denied and proof thereof demanded at the time of trial. 29. Denied. The allegations of Paragraph 29 are legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are specifically denied and proof thereof demanded at the time of trial. 30. Denied as stated. It is admitted that, on or before August 31, 2008, Plaintiff vacated the Property. It is specifically denied that Smith Land's work on, or use of, the Property prevented Plaintiff from utilizing the property for his business or otherwise interfered with the same. Further, it is specifically denied that Smith Land threatened demolition of the building. Instead, in accordance with the July 2, 2008 Notice, Plaintiff was required to vacate the premises on or before October 3, 2008. COUNT I - BREACH OF CONTRACT 31. Smith Land's Answers to Paragraphs 1 through 30 above are incorporated herein by reference. -6- 32. Admitted. By way of further response, the Lease Agreement is a writing that speaks for itself and any attempt by Plaintiff to interpret the same is specifically denied. 33. Denied as stated. It is admitted that Plaintiff made monthly rental payments as required by the terms of the Lease Agreement from the date of Smith Land's purchase of the property through the time Plaintiff vacated the property in August, 2008. The remaining allegations of this Paragraph are specifically denied. 34. Admitted. 35. Denied. The allegations of Paragraph 35 are legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are specifically denied. By way of further response, on July 2, 2008, Smith Land, through its counsel, forwarded a formal notice that it was terminating the lease, pursuant to Paragraph 29 thereof, and Plaintiff would be required to vacate the premises within 90 days, on or before October 3, 2008. Such action was within the scope of the Lease Agreement and did not violate Pennsylvania law. 36. Denied. It is specifically denied that Smith Land violated Plaintiff's rights in issuing a Notice of Termination of the Lease Agreement. It is also specifically denied that Plaintiff is entitled to damages as a result of the valid, lawful termination of the Lease Agreement upon 90 days notice. As a result, the remaining allegations of this Paragraph are specifically denied, and Plaintiff's requests for damages are properly rejected. RELIEF 37. Denied. It is specifically denied that Plaintiff is entitled to damages or relief where, as here, Smith Land lawfully and properly terminated the Lease Agreement upon 90 days notice. As a result, Defendant Smith Land respectfully requests that this Court enter judgment in -7- its favor and against Plaintiff and further request that this Court award any other relief allowed by law. COUNT II - BREACH OF COVENANT OF QUIET ENJOYMENT 38. Smith Land's Answers to Paragraphs 1 through 37 above are incorporated herein by reference. 39. Denied as stated. It is admitted that Plaintiff entered into a Lease Agreement with prior owners of the Property. It is further admitted that Smith Land purchased the Property subject to such Lease Agreement. The remaining allegations of this Paragraph are legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are specifically denied. 40. Denied. The allegations of Paragraph 40 are legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are specifically denied. 41. Denied. The allegations of Paragraph 41 are legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are specifically denied. By way of further response, it is specifically denied that Smith Land's activities on the property interfered with Plaintiff's use thereof or otherwise hindered Plaintiff's business. 42. Denied. The allegations of Paragraph 42 are legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are specifically denied. By way of further response, Smith Land lawfully terminated the Lease upon 90 days written notice as permitted by the terms thereof. -8- 43. Denied. It is specifically denied that Smith Land violated Plaintiff's rights in issuing a Notice of Termination of the Lease Agreement. It is also specifically denied that Plaintiff is entitled to damages as a result of the valid, lawful termination of the Lease Agreement upon 90 days notice. As a result, the remaining allegations of this Paragraph are specifically denied, and Plaintiff's requests for damages are properly rejected. 44. Denied. It is specifically denied that Smith Land acted unlawfully, contrary to Plaintiff's rights or otherwise in an extreme or outrageous manner. By way of further response, Smith Land lawfully and properly terminated the Lease Agreement upon 90 days written notice, rendering Plaintiff's claims in valid. RELIEF 45. Denied. It is specifically denied that Plaintiff is entitled to damages or relief where, as here, Smith Land lawfully and properly terminated the Lease Agreement upon 90 days notice. It is further specifically denied that there is a basis for, or Plaintiff is entitled to, an award of punitive damages. As a result, Defendant Smith Land respectfully requests that this Court enter judgment in its favor and against Plaintiff and further request that this Court award any other relief allowed by law. COUNT III - TRESPASS 46. Smith Land's Answers to Paragraphs 1 through 45 above are incorporated herein by reference. 47. Denied. The allegations of Paragraph 47 are conclusions of law to which no response is required. To the extent a response is deemed necessary, the same are specifically denied. -9- 48. Denied. The allegations of Paragraph 48 are conclusions of law to which no response is required. To the extent a response is deemed necessary, the same are specifically denied. 49. Denied. It is specifically denied that Smith Land acted unlawfully, contrary to Plaintiff's rights or otherwise in an extreme or outrageous manner. By way of further response, Smith Land lawfully and properly terminated the Lease Agreement upon 90 days written notice, rendering Plaintiffs claims in valid. RELIEF 50. Denied. It is specifically denied that Plaintiff is entitled to damages or relief where, as here, Smith Land lawfully and properly terminated the Lease Agreement upon 90 days notice. It is further specifically denied that there is a basis for, or Plaintiff is entitled to, an award of punitive damages. As a result, Defendant Smith Land respectfully requests that this Court enter judgment in its favor and against Plaintiff and further request that this Court award any other relief allowed by law. WHEREFORE Defendant Smith Land & Improvement Corporation respectfully requests that this Court enter judgment in its favor and against Plaintiff Richard L. Raudabaugh d/b/a Drapery Fabrications t/a Draperyland and further request that this Court award any other relief allowed by law. NEW MATTER 51. Any damages sustained by the Plaintiff were as a direct result of Plaintiff's own acts or omissions and/or as a result of the acts or omissions of third parties, including Plaintiff's agent(s) or conditions which were beyond the control of Smith Land. -10- 52. There is no causal connection between the damages sought by Plaintiff and any conduct or omission by Smith Land. 53. Plaintiff's Complaint fails to state a cause of action upon which any relief may be granted. 54. Plaintiff's claims are barred by waiver. 55. Plaintiff's claims are barred by estoppel. 56. Plaintiff's claims are barred by payment or offset. 57. Plaintiff's claims are barred by the statute of frauds. 58. Plaintiff's claims are barred by laches. 59. Plaintiff's claims are barred by the statute of limitations. 60. Plaintiff has not suffered any damages in this matter and to the extent that Plaintiff can prove that it has suffered damages, it is solely as a result of his own actions or in- actions or the actions or in-actions of third parties. 61. Plaintiff's claims against Smith Land are invalid and properly rejected where, as here, Smith Land properly and lawfully forwarded a formal notice dated July 2, 2008, that it was terminating the Lease, pursuant to Paragraph 29 thereof, and Plaintiff would be required to vacate the premises within 90 days, on or before October 3, 2008. -11- WHEREFORE Defendant Smith Land & Improvement Corporation respectfully requests that this Court enter judgment in its favor and against Plaintiff Richard L. Raudabaugh d/b/a Drapery Fabrications t/a Draperyland and further requests that this Court award any other relief allowed by law. By: Respectfully submitted, RHOADS & SINON LLP Stephanie E. DiVittore John M. Coles One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Smith Land & Improvement Corporation -12- M> C."a .- ['-? 'T4 .,...j ?`.% c": "' ' _ - .-?,, ?:? _'_., C.? :?.C IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA RICHARD L. RAUDABAUGH d/b/a DRAPERY FABRICATIONS t/a DRAPERYLAND, Plaintiff CASE NO. 2009-502 V. ; SMITH LAND & IMPROVEMENT CORP. CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW MATTER AND NOW, comes the Plaintiff, Richard L. Raudabaugh, d/b/a Drapery Fabrications, t/a Draperyland, by and through his attorneys, Gates, Halbruner, Hatch & Guise, P.C. and files this Reply to New Matter, and avers as follows: 51. Denied. The damages Plaintiff sustained were the direct result of Defendant's actions. 52. Denied. See reply to paragraph 51. 53. Denied as a legal conclusion. 54. Denied as a legal conclusion. 55. Denied as a legal conclusion. 56. Denied as a legal conclusion. 57. Denied as a legal conclusion. 58. Denied as a legal conclusion. 59. Denied as a legal conclusion. S. •1 60. Denied. See reply to paragraph 51. 61. Denied. Defendant improperly and unlawfully attempted to terminate the Lease as the purchaser of the Property was required to give notice under paragraph fifteen (15) of the lease and Defendant did not have the option of termination upon ninety (90) days notice. Wherefore, Plaintiff respectfully requests this Court grant to Plaintiff the requested relief against Defendant for breach of contract, breach of the covenant of quiet enjoyment and trespass. Respectfully March 3, 2009 PA 44779 Gates, Esquire Sar E. McCarroll PA 1102 Gates, Halbruner, Hatch & Guise, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043-1144 Phone: (717) 731-9600 2 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA RICHARD L. RAUDABAUGH d/b/a DRAPERY FABRICATIONS, INC. t/a DRAPERYLAND, Plaintiff CASE NO. 2009-502 V. SMITH LAND & IMPROVEMENT CORP. CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED VERIFICATION I, Richard L. Raudabaugh, hereby verify that the statements made in the foregoing Reply to New Matter are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: ,3/10/067 Richard L. Raudabaugh, PlaintiffQ s- 44 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA RICHARD L. RAUDABAUGH d/b/a DRAPERY FABRICATIONS t/a DRAPERYLAND, Plaintiff V. SMITH LAND & IMPROVEMENT CORP. Defendant CASE NO. 2009-502 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on this day I served a true and correct copy of the Plaintiff's Reply to New Matter upon the following by way of the United States postal service, first class, postage prepaid: Stephanie DeVittore Rhoads & Sinon, LLP One South Market Square, 12`x' Floor PO Box 1146 Harrisburg, PA 17108-1146 717-233-5731 Attorney for Defendant March 10, 2009 lew?? R. Gates, Esquire PA 6779 Sar E. McCarroll PA 1102 Gates, Halbruner, Hatch & Guise, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043-1144 Phone: (717) 731-9600 ca ^? o ?? ' _ ? r <.ra . , ? -? rt? ?` r- ? ...? r ? ?.. c., ; rn ." .. ? G,F? ..C RICHARD L. RAUDABAUGH IN THE COURT OF COMMON PLEAS OF d/b/a DRAPERY FABRICATIONS CUMBERLAND COUNTY, PENNSYLVANIA t/a DRAPERYLAND, Plaintiff CIVIL ACTION -LAW NO. 09-502 CIVIL vs. SMITH LAND & IMPROVEMENT CORP., Defendant JURY TRIAL DEMANDED IN RE: DEFENDANT'S MOTION TO COMPEL AND STRIKE OBJECTIONS ORDER AND NOW, this /~' day of August, 2009, argument on the above-captioned motion to enforce subpoena set for August 6, 2009, is continued to Thursday, September 3, 2009, at 2:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, /~owell Gates, Esquire Sarah McCarroll, Esquire For the Plaintiff ~iCephanie E. DiVittore, Esquire r For the Defendant y :rlm . t, ~!t '~'~'~ 'y i ' j^ 3 t~~55 ~:E (.1' C~ tJ E} i„f 'Y V W~ ~ 41 i'~11 ~ .. 4 ~.. RICHARD L. RAUDABAUGH d/b/a DRAPERY FABRICATIONS t/a DRAPERYLAND, Plaintiff v . SMITH LAND & IMPROVEMENT CORP., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2009-502 JURY TRIAL DEMANDED IN RE: MOTION TO COMPEL ORDER OF COURT AND NOW, this 3rd day of September, 2009, this matter having been called for argument, the motion of the defendant to compel and/or strike objections is granted in part as follows: 1) The plaintiff shall produce all the Schedules C for his tax returns from the year 2004 forward. 2) The plaintiff shall provide to the defendant an itemization of any and all special damages which are sought in this case. 3) The defendant is authorized to re-propound its requests for production of documents Nos. 14 and 19 in light of information revealed by counsel for the plaintiff this date. The remainder of the motion to compel and/or strike objections is denied, counsel having represented that she cannot identify the names of any specific persons alluded to in the response to interrogatories 18 and 19 who would have observed the matters in interrogatories 18 and 19. The court notes the duty of counsel to immediately disclose the identity of such persons should their identity be ascertained by the plaintiff. NO. 2009-502 By the Court, /~'~, Kevir,~ Hess, J. rah E. McCarroll, Esquire For Plaintiff ~tephanie E. DiVittore, Esquire For Defendant :bg L:O I ~ ~£..S r-'L'a t 4I~r1~q `~ ~iLc~- ==i;~_ n t _ ,'.r j r.C}Y ~`, r,,; , i ! :~ ~~ r ,,~;~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RICHARD L. RAUDABAUGH d/b/a DRAPERY FABRICATIONS t/a DRAPERY LAND Plaintiff, V. SMITH LAND & IMPROVEMENT CORP. Defendant. Case No. 2009-502 CIVIL ACTION-LAW C") --ax rnco :zrn <? D C-, xg yeytiyr r c? r•a r -'v CA) t PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Alicia A. Blankenship, Esq., and Gates, Halbruner, Hatch & Guise, P.C. on behalf of Plaintiff, Richard L. Raudabaugh d/b/a Drapery Fabrications t/a Drapery Land, in the above-captioned matter. Respectfully Submitted, Date: March 5 2012 Alicia A. Blankenship, Esq. PA ID #309898 Gates, Halbruner, Hatch & Guise, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Phone: 717.731.9600 Facsimile: 717.731.9627 a.blankenship@gateslawfinn.com . ---r- r ri -(- -r- c-) -71 ?~ f cc: Richard L. Raudabaugh Stephanie E. DiVittore RICHARD L. RAUDABAUGH IN THE COURT OF COMMON PLEAS OF d/b/a DRAPERY FABRICATIONS CUMBERLAND COUNTY, PENNSYLVANIA t/a DRAPERYLAND, Plaintiff CIVIL ACTION - LAW NO. 09-502 CIVIL vs. SMITH LAND & IMPROVEMENT : CORP., Defendant JURY TRIAL DEMANDED IN RE: PLAINTIFF'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES ORDER AND NOW, this / Z day of March, 2012, argument on the above-captioned motion to compel is set for Wednesday, April 4, 2012, at 9:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Alicia Blankenship, Esquire Lowell Gates, Esquire For the Plaintiff V Stephanie E. DiVittore, Esquire For the Defendant Arn c L';rn 73 iv Ta, Stephanie E. DiVittore., Esquire John M. Coles, Esquire RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Smith Land & Improvement Corp. RICHARD L. RAUDABAUGH d/b/a DRAPERY FABRICATIONS, t/a DRAPERYLAND, Plaintiff V. SMITH LAND & IMPROVEMENT CORP., Defendant t? i=r IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 09-502 CIVIL ACTION --LAW : JURY TRIAL DEMANDED DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL NOW COMES Defendant Smith Land & Improvement Corporation ("Smith Land"), by its attorneys, Rhoads & Sinon LLP and submits this Response to the Motion to Compel filed on behalf of Plaintiff Richard Raudabaugh d/b/a Drapery Fabrications t/a/ Draperyland ("Plaintiff') and in support thereof states as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part, denied in part. It is admitted that Plaintiff's counsel forwarded a letter dated December 2, 2010 requesting that Smith Land answer Plaintiff's Interrogatories 6, 7, 10 and 11. It is specifically denied that Smith Land did not, in its original responses to Plaintiff's 843788.1 Interrogatories, answer Nos. 10 and 11. Specifically, Smith Land raised specific objections to Interrogatory Nos. 10 and 11, but then proceeded, notwithstanding the objections, to answer the same. Interrogatory No. 10 requested the names of individuals believed to have knowledge of facts in this matter, and the response identifies Richard E. Jordan II and Richard E. Jordan III, explaining these individuals have knowledge concerning the purchase and operations of the property at issue and Smith Land's defenses to Plaintiff's claims. Interrogatory No. 11 requested the names of individuals Smith Land intends to call as witnesses in this case. The responses indicate, notwithstanding the specific and general objections, that Smith Land has not yet determined who it will call as fact witnesses, we reserve the right to call individuals identified through discovery and will supplement this response when such determination has been made. 5. Denied as stated. It is admitted that Plaintiff's counsel forwarded additional correspondence regarding Interrogatory Nos. 6, 7, 10 and 11. It is specifically denied that Smith Land's objections to Interrogatory Nos. 6, 7, 10 and 11 are improper. It is also specifically denied that Smith Land failed to answer Interrogatory Nos. 10 and 11. By way of further response, as set forth in Paragraph 4 above, despite its specific objections, Smith Land fully and completely answered Interrogatory Nos. 10 and 11. 6. Admitted in part, denied in part. It is admitted that Plaintiff's Interrogatory Nos. 6 and 7 seek information regarding other tenants on the property at issue. It is specifically denied that such information is relevant to the current dispute or that it will assist in discovery in this case. By way of further response, Plaintiff's Complaint concerns a lease for real property located at 1004 Market Street, Lemoyne, Cumberland County, Pennsylvania at which Plaintiff operated a drapery business/store. After Smith Land purchased the real property at issue, it notified Plaintiff that it would be razing the building and issued a notice to vacate. The Complaint maintains that Smith Land's activities on the property, and razing of the same, constituted improper eviction and breach of the lease agreement. The Complaint contains three counts - breach of contract, breach of the covenant of quiet enjoyment and trespass. These counts are unique to Plaintiff and his business operations. There is no claim for discrimination, disparate treatment or other legal theory that would render the neighboring tenants and their arrangements with Smith Land relevant or otherwise implicate this information in this case. As a result, Smith Land defends its objections to Interrogatory Nos. 6 and 7 as seeking the discovery of confidential and proprietary information with no relevant whatsoever to an alleged breach of a lease between Plaintiff and Smith Land. 7. Denied. For the reasons set forth in Paragraph 6 above, this Paragraph is specifically denied. 8. The allegations of Paragraph 8 constitute legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are expressly denied. 9. The allegations of Paragraph 9 constitute legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are expressly denied. 10. Denied as stated. It is admitted that Smith Land lodged specific objections to Interrogatory Nos. 10 and 11, but then fully answered the same. Even if this Court were to compel Smith Land to answer these interrogatories, Smith Land has no further information at this time to provide. It is also admitted that Smith Land specifically objected to Interrogatory Nos. 6 and 7 and, based on these objections, declined to answer the same. By way of further response, it is specifically denied that Interrogatory Nos. 6 and 7 seek information relevant or pertinent to this litigation, but instead see proprietary and confidential information irrelevant to Plaintiff's breach of contract claim. WHEREFORE Smith Land & Improvement Corporation respectfully requests that this Court issue an Order denying Plaintiff's Motion to Compel. By: Respectfully Submitted, RHOADS & SINON LLP Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 sdivittore(a)rhoads-sinon. com John M. Coles, Esquire Attorney I.D. No. 86398 j co les@,rhoads-sinon. com One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Smith Land & Improvement Corp. CERTIFICATE OF SERVICE I hereby certify that on this Tsf- day of March, 2012, a true and correct copy of the foregoing "Defendant's Response to Plaintiff's Motion to Compel" was served by United States mail, first class, postage prepaid, upon the following: Alicia Blankenship, Esquire Gates, Halbruner, Hatch & Guise, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Dara Whistler RICHARD L. RAUDABAUGH IN THE COURT OF COMMON PLEAS OF d/b/a DRAPERY FABRICATIONS CUMBERLAND COUNTY, PENNSYLVANIA t/a DRAPERYLAND, Plaintiff CIVIL ACTION - LAW NO. 09-502 CIVIL vs. SMITH LAND & IMPROVEMENT : CORP., : Defendant JURY TRIAL DEMANDED IN RE: PLAINTIFF'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES ORDER AND NOW, this 4' day of April, 2012, at the request of counsel for the plaintiff and with the concurrence of counsel for the defendant argument on the above-captioned motion set for April 4, 2012, is continued to Thursday, April 19, at 2:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, ? Alicia Blankenship, Esquire For the Plaintiff Stephanie E. DiVittore, Esquire For the Defendant rlm l £?les 44.0.Ied r/l,/ /14p- ?? G - 14 ? A. Hess, J. ?.?? 4 a RICHARD L. RAUDABAUGH IN THE COURT OF COMMON PLEAS OF d/b/a DRAPERY FABRICATIONS CUMBERLAND COUNTY, PENNSYLVANIA t/a DRAPERYLAND, Plaintiff CIVIL ACTION - LAW NO. 09-502 CIVIL vs. SMITH LAND & IMPROVEMENT : CORP., Defendant JURY TRIAL DEMANDED IN RE: PLAINTIFF'S MOTION TO COMPEL ANSWER TO INTERROGATORIES ORDER AND NOW, this 2-7 4 day of April, 2012, upon consideration of the Plaintiff's Motion to Compel Defendant's Answer to Interrogatories, dated March 5, 2012, Plaintiff's Motion is GRANTED in part and the :Defendant is ordered to answer Plaintiff's Interrogatory 6. BY THE COURT, Kevin A. ess, J. a? Alicia Blankenship, Esquire Lowell R. Gates, Esquire c { For the Plaintiff mfw ,. - Esquire Stephanie E. DiVittore M v i-, , For the Defendant 0 :rlm