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HomeMy WebLinkAbout09-0661AVISO USTED HA SIDO DEMANDADO/ A EN CORTE. Si usted desea defenderse de las demandas que se presentan mds adelante en las siguientes pdginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mds aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Lawyers Reference Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 800-990-9108 (717) 249-3166 128304 -'Glenn R. Davis Attorney I. D. No. 31040 Andrea E. Dean Attorney I.D. No. 86301 Latsha Davis Yohe & McKenna, P.C. 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 (717) 620-2424 Attorneys for Plaintiff, Terry Shetron IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TERRY J. SHETRON, Plaintiff V. No. (17-661 CIVIL TERM SHETRON WELDING AND CIVIL ACTION - LAW FABRICATION, INC. and RAY CULLEN and KIRK NAUGLE, in their official and individual capacities 85 Kutz Road Carlisle, Pennsylvania 17013, Defendants COMPLAINT AND NOW, COMES, Plaintiff, Terry J. Shetron, by and through its attorneys, Latsha Davis Yohe & McKenna, P.C., and makes his Complaint against Defendants Shetron Welding and Fabrication, Inc., Ray Cullen and Kirk Naugle (collectively, "Defendants") as follows: 1. Plaintiff, Terry J. Shetron ("Shetron"), is an adult individual residing at 1505 Walnut Bottom Road, Newville, Cumberland County, Pennsylvania 17241. 2. Defendant, Shetron Welding and Fabrication, Inc. ("Shetron Welding"), is a Pennsylvania corporation with a principal place of business located at 85 Kutz Road, Carlisle, Cumberland County, Pennsylvania 17013. 3. Defendant, Ray Cullen ("Cullen"), is an adult individual who, upon information and belief, resides at 609 West King Street, Shippensburg, Cumberland County, Pennsylvania 17257. 4. Defendant, Kirk Naugle ("Naugle"), is an adult individual who, upon information and belief, resides at 1100 Remington Drive, Shippensburg, Cumberland County, Pennsylvania 17257. 5. On or about January 12, 2004, Shetron and Defendants entered into a Commercial Property Lease Agreement ("Lease"). See Lease attached as Exhibit A. 6. Cullen executed the Lease both as an officer of Shetron Welding and in his individual capacity as owner of Shetron Welding. See Exhibit A. 7. Upon information and belief, Cullen has been the President of Shetron Welding from January 12, 2004 to the present. 8. Naugle executed the Lease both as an officer of Shetron Welding and in his individual capacity as owner of Shetron Welding. See Exhibit A. 9. Upon information and belief, Naugle has been the Vice-President of Shetron Welding from January 12, 2004 to the present. 128304 2 10, Pursuant to the Lease, Shetron leased to Defendants the real property located at 85 Kutz Road, Carlisle, Pennsylvania, to be used and occupied as a place of business for the term of ten (10) years, beginning the first day of February, 2004, and ending the final day of February 2015. See Exhibit A. 11. The rental payment for the first five (5) years under the Lease is set at $8,250.00 per month, due on or before the first day of each month, with the first installment to have been paid on or before February 1, 2004. See Exhibit A 12. After the first five (5) year term, the rental payment is to be adjusted according to the Consumer Price Index with a maximum increase of 12% for the remaining five (5) year term; the rent is never to be less than $8,250.00 per month. See Exhibit A. 13. The Consumer Price Index, according to the United States Department of Labor, Bureau of Labor Statistics rose 15.9% in the five (5) years between 2004 and 2008. See Exhibit B. 14 The monthly rental payout for the last five (5) years under the Lease would increase by the maximum 12% as of February 1, 2009 to $9,240.00 per month. 15. Rent is defined in the Lease to also encompass damages for default and taxes as set forth in the lease. See Exhibit A, ¶2. 16. The Lease provides certain remedies to Shetron in the event that payment for rent and/or any other payment is not made in full when due and in the event Defendants violate or fail to perform or otherwise break any covenant or agreement contained in the Lease. See Exhibit A, ¶¶10,12 and 16. 128304 3 17. Under the Lease, the rent for the entire unexpired balance of the term of the Lease, other payments agreed to be paid by Defendants and costs, including five percent (5%) interest, and all rent and any other payment agreed to be paid by Defendants which may be due and payable and in arrears, are due and payable as if the whole balance of unpaid rent and other payments were payable in advance. See Exhibit A, ¶10. 18. The Lease and the term it creates terminate and become absolutely void upon the failure of payment to pay rent and/or other payments owed and upon the violation or failure to perform any covenant in the Lease; damages are the amount equal to the amount of rent reserved for the balance of the term of the Lease. See Exhibit A, ¶10. 19. Shetron has not received the monthly rental payments that were due on or before November 1, 2008, December 1, 2008, January 1, 2009, or February 1, 2009. 20. By correspondence dated November 18, 2008, Shetron through counsel notified Cullen and Naugle that Shetron Welding was in default of the Lease. See correspondence dated November 18, 2008 attached as Exhibit B. 21. No response to the November 18, 2008 notice has been received from Defendants and no further payment has been made to Shetron by defendants. 128304 4 COUNT I - BREACH OF CONTRACT Terry 1. Shetron v. Shetron Welding and Fabrication, Inc., Ray Cullen and Kirk Naugle 22. Paragraphs 1 through 21 above are incorporated herein by reference as though set forth at length. 23. Defendants and Shetron entered into the Lease on or about January 12, 2004, whereby Shetron leased the property at 85 Kutz Road, Carlisle, Pennsylvania to be used and occupied as a place of business to Defendants. See Exhibit A. 24. Cullen and Naugle executed the Lease both on behalf of Shetron Welding in their capacity as officers of the corporation and in their individual capacities as owners of Shetron Welding. 25. Plaintiff and Defendants agreed that Defendants would sign the Lease in their individual capacities to provide security of the Lease payments. 26. Shetron has not received the rental payments that were due on or before November 1 and December 1, 2008 and January 1, 2009 in the amount of $24,740.00. 27. Shetron has not received the rental payment that was due on or before February 1, 2009 in the amount of $9,240.00. 28. Defendants are in default of the provisions of the Lease and Shetron has been harmed and continues to be harmed by Defendants' failure to pay the monthly rent and/or other payments due under the Lease. 29. To date, Defendants have not cured their default of the Lease. 128304 5 30. Under the Lease, Shetron is entitled to accelerate and receive payment of rent, including monthly payments from March 1, 2009 through January 1, 2014 of $545,160.00. 31. Under the Lease, Shetron is entitled to payment of other charges, payouts, taxes, costs and expenses, including but not limited to, five percent (5%) commission chargeable against such sum owed. WHEREFORE, Plaintiff, Terry J. Shetron, respectfully requests that this Honorable Court enter judgment in his favor and against Defendants in an amount in excess of $50,000.00 together with interest, costs, attorney fees and any other relief that this Court deems to be appropriate. Dated: Respectfully submitted, LATSHA DAVIS YOHE & MCKENNA, P.C. _ZQ--t?,0 By- (3?? Glenn R. Davis Attorney I. D. No. 31040 Andrea E. Dean Attorney I. D. No. 86301 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 (717) 620-2424 Attorneys for Plaintiff, Terry J. Shetron 128304 6 VERIFICATION The undersigned hereby verifies that the statements of fact in. the foregoing are trap and correct to the best of my knowledge, information and belief: I understand that any false statements therein are subject to the penalties contained in 19 Pa. C. S. § 4904, relating to unsworn falsification to authorities. Dated: I- I f-o q Terry J Shetron ??1?16r?t A' t. COMMERCIAL PROPERTYLEASE A GR.EEMENT THIS AGREEMENT, dated this 12`h day of January, 2004, by and between Shetron Welding and Fabrication, Inc. (hereinafter called Lessee), and Terry J. Shetron (hereinafter called Lessor). Lessor does hereby demise and let unto Lessee all that certain real property at 85 Kutz Road, Carlisle, Cumberland County, Pennsylvania, to be used and occupied as the place of business for Lessee and for no other purpose, for the term of ten (10) years, beginning the 1" day of February, 2004, and ending the final day of February 2015, for the rental payment set for the first five (5) years at Eight Thousand Two Hundred and Fifty Dollars ($8,250.00), payable in monthly installments, due on or before the 1 st day of each month, with the first installment to be paid on or before the 1 st day of February, 2004. After the first five (5) year term, the rental payment shall be adjusted according to the Consumer Price Index (CPI) with a maximum increase of 12% for the remaining five (5) year term. In no event shall the rental payment be adjusted to an amount less than $8,250.00 per month. 2. Additional Rent. (a) Damages for Default. Lessee agrees to pay as rent in addition to the minimum rental for any and all sums which may become due by reason of the failure of Lessee to comply with all of the covenants of this lease and any and all damages, costs and expenses which the Lessor may suffer or incur by reason of any default of the Lessee or failure on his part to comply with the covenants of this lease, and each of them, and also any and all damages to the demised premises caused by any act or neglect of the Lessee. (b) Taxes. Lessee further agrees to pay as rent in addition to the minimum rental all taxes assessed or imposed upon the demised premises and/or the building of which the demised premises is a part during the term of this lease, in excess of and over and above those assessed or imposed at the time of making this lease. The amount due hereunder on account of such taxes shall be apportioned for that part of the first and last calendar years covered by the term. The same shall be paid by Lessee to Lessor on or before the first day of July of each and every year. I Place of Payment. All rents shall be payable without prior notice or demand at the office of Lessor at 1505 Walnut Bottom Road, Newville, Pennsylvania 17241, or at such other place as Lessor may from time to time designate by notice in writing. 4. Affirmative Covenants of Lessee. Lessee covenants and agrees that he will perform the following without demand: (a) Payment of Rent. Pay the rent and all other charges on the days and times and at the place that they are made payable, without fail, and if Lessor shall at any time or times accept the rent or rent charges after they shall have become due and payable, such acceptance shall not excuse delay upon subsequent occasions, or constitute or be construed as a waiver of any of Lessor's rights. Lessee agrees that any charge or payment agreed to be treated or collected as rent and/or any other charges or taxes, expenses, or costs to be paid by the Lessee may be proceeded for and recovered by the Lessor by distraint or other process in the same manner as rent due and in arrears. (b) Fire Insurance. Lessee further agrees to maintain and pay all fire insurance premiums upon the demised premises and/or the building of which the demised premises is a part during the entire term of this Agreement. (c) Liability Insurance. Lessee agrees to maintain and pay all liability insurance premiums for the demised premises during the entire term of this Agreement. (d) Miscellaneous Insurance. Lessee agrees to maintain and pay all insurance premiums necessary as a result of the type of business activity and trade being conducted in or on the demised property during the entire term of this Agreement. (e) Cleaning, Repairing, etc. Keep the demised premises clean and free from all ashes, dirt and other refuse matter; replace all glass windows, doors, etc., broken; keep all waste and drain pipes open; repair all damage to plumbing and to the premises in general; keep the same in good order and repair as they now are, reasonable wear and tear and damage by accidental fire or other casualty not occurring through negligence of Lessee or those employed by or acting for Lessee alone excepted. Lessee agrees to be responsible for all repairs not classified and defined as "major repairs" in paragraph 8(f). The Lessee agrees to surrender the demised premises in the same condition in which Lessee has agreed to keep the same during the continuance of this lease. (f) Requirements of Public Authorities. Comply with any requirements of any of the constituted public authorities, and with the terms of any state or federal statute or local ordinance or regulation applicable to Lessee or his use of the demised premises, and indemnify Lessor from penalties, fines, costs or damages resulting from failure so to do. (g) Fire. Use every reasonable precaution against fire. (h) Rules and Regulations. Comply with rules and regulations of Lessor promulgated as provided in this Agreement. (i) Surrender of Possession. Peaceably deliver up and surrender possession of the f demised premises to the Lessor at the expiration or sooner termination of this lease, promptly delivering to Lessor at its office all keys for the demised premises. 0) Notice of Fire, etc. Give to Lessor prompt written notice of any accident, fire, or damage occurring on or to the demised premises. (k) Condition of Pavement. Lessee shall be responsible for the condition of the pavement, curb, cellar doors, awnings and other erections on the pavement during the term of this lease; shall keep the pavement free from snow and ice, and shall be, and hereby agrees that Lessee is solely liable for any accidents, due or alleged to be due to their defective condition, or to any accumulations of snow and ice. (1) Environmental Responsibility. Lessee shall exercise reasonable envirorunental 2 responsibility and agrees to be held liable for all liability and costs involved for environmental hazards created through the failure of the Corporation or a Corporation employee to exercise reasonable environmental responsibility,. As.pant of the Purchase Agreement a Phase I Environmental Study is to be completed to ensure that Lessor is not responsible for any environmental hazards or contamination to the demised premises prior to the date of the Purchase Agreement. 5. Negative Covenants of Lessee. Lessee covenants and agrees that he will do none of the following things without the consent in writing of Lessor: (a) Use of Premises. Occupy the demised premises in any other manner or for any other purpose than as above set forth. (b) Assignment and Subletting. Assign, mortgage or pledge this lease or underlet or sublease the demised premises, or any part of it, or permit any other person, firm or corporation to occupy the demised premises, or any part of it; nor shall any assignee or sublessee assign, mortgage or pledge this lease or such sublease, without an additional written consent by the Lessor, and without consent no assignment, mortgage or pledge shall be valid. If the Lessee becomes embarrassed or insolvent, or makes an assignment for the benefit of creditors, or if a petition in bankruptcy is filed by or against the Lessee or a bill in equity or other proceeding for the appointment of a receiver for the Lessee is filed, or if the real or personal property of the Lessee shall be sold or levied upon by any sheriff, marshal or constable, the same shall be a violation o:fthis covenant. (c) Alterations, Improvements. Make any alterations, improvements, or additions to the demised premises without Lessor's prior written consent. All alterations, improvements, additions or fixtures, whether installed before or after the execution of this lease, shall remain upon the premises at the expiration or sooner determination of this lease and become the property of Lessor, unless Lessor shall, prior to the determination of this lease, have given written notice to Lessee to remove such alterations, improvements and additions and restore the premises to the same good order and condition in which they now are. Should Lessee fail to do so, Lessor may do so, collecting, at Lessor's option, the cost and expense from Lessee as additional rent. (d) Fire Insurance. Do or allow to be done, any act, matter or thing objectionable to the fire insurance companies so that the fire insurance or any other insurance now in force or here- after to be placed on the demised premises, or any part of it, or on the building of which the demised premises may be a part, shall become void or suspended, or whereby the same shall be rated as a more hazardous risk than at the date of execution of this lease. In case of a breach of this covenant (in addition to all other remedies given to Lessor in case of the breach of any of the conditions or covenants of this lease) Lessee agrees to pay to Lessor as additional rent any and all increase or increases of premiums on insurance carried by Lessor on the demised premises, or any part of it, or on the building of which the demised premises may be a part, caused in any way by the occupancy of Lessee. (e) Removal of Goods. Remove, attempt to remove or manifest an intention to remove Lessee's goods or property from or out of the demised premises otherwise than in the ordinary and usual course of business, without having first paid and satisfied Lessor for all rent which may become due: during-the entire term of this lease. (f) Vacate Premises. Vacate or desert the.premises during the term of this lease, or permit the same to be empty and unoccupied. 6. Inspection of Premises. Lessor shall at all reasonable times, by itself or its duly f authorized agents, have the right to go upon and inspect the demised premises and every part of it, and/or at its option to make repairs, alterations and additions to the demised premises. No alterations or additions shall be made by Lessor without first consulting Lessee. 7. Responsibility of Lessee. Lessee agrees to be responsible for and to relieve and hereby relieves the Lessor from all liability by reason of any injury or damage to any person or property in the demised premises, whether belonging to the Lessee or any other person, caused by any fire, breakage or leakage in any part or portion of the demised premises, or any part or portion of the building of which the demised premises is a part, or from water, rain or snow that may leak into, issue or flow from any part of the said premises, or of the building of which the demised premises is a part, from the drains, pipes, or plumbing work of the same, or from any place or quarter, whether such breakage, leakage, injury or damage be caused by or result from the negligence of Lessor or its servants or agents or any person or person. Lessee also agrees to be responsible for and to relieve and hereby relieves Lessor from all liability by reason of any - _.damage or injury to any person or thing which may arise from or be due to the use, misuse or abuse of all or any of the elevators, hatches, openings, stairways, hallways of any kind which may exist or hereafter be erected or constructed on the premises; or from any kind of injury which may be caused on the premises or of which the demised premises is a part, whether such damage, injury, use, misuse or abuse be caused by or result from the negligence of Lessor, its servants or agents or any other person or persons. 4. Responsibility of Lessor. (a) Damage for Interruption of Use. Lessor shall not be liable for any damage, compensation or claim by reason of inconvenience or annoyance arising from the necessity of repairing any portion of the building, the interruption in the use of the premises, or the termination of this lease by reason of the destruction of the premises. (b) Representation of Condition of Premises. The Lessor has let the demised premises in their present condition and without any representations on the part of the Lessor, its officers, em- ployees, servants and/or agents. It is understood and agreed that Lessor is under no duty to make repairs or alterations at the time of letting or at any time thereafter. (c) Zoning. It is understood and agreed that the zoning classification for said property is Industrial. Lessor does not warrant or undertake that the classification will remain Industrial. Should the zoning classification be changed due to circumstances outside the control of the Lessor and Lessee, Lessee agrees that this lease shall not terminate without Lessor's consent, and the Lessee shall use the premises only in a manner permitted under such zoning ordinance or regulation.. Lessee agrees to incur all expense involved in contesting any and all proposed zoning changes. (d) Water. Lessor agrees to pay all amounts necessary to provide and maintain well water service for the demised premises. If Lessee has a need for an increased water supply due to trade. activity being conducted by Lessee, Lessee agrees to pay all,amounts necessary to create an increased water supply. (e) Sewer. Lessor further agrees to pay all amounts necessary to provide and maintain a non-public septic system for the disposal of all sewage created by the demised premises. This excludes payment for repairs to the septic system due to improper use or negligence by Lessee and its agents, (f) Major Repairs. Major repairs are defined as repairs that are in excess of Five Thousand Dollars ($5,000.00). Lessor agrees to be responsible for making and paying for all major repairs that are not due to the negligence or fault of Corporation or an employee or officer of Corporation. 9. Miscellaneous Agreements and Conditions. (a) Effect of Repairs on Rental. No contract entered into or that may be subsequently entered into by Lessor with Lessee, relative to any alterations, additions, improvements or repairs., nor the failure af_Lessor to, make such alterations, additions; improvements or repairs as required by any such contract, nor the making by Lessor or its agents or contractors of such alter- ations, additions, improvements or repairs shall in any way affect the payment of the rent or other charges at the time specified in this lease. (b) Waiver of Custom. It is hereby covenanted and agreed that notwithstanding any law, ? usage of custom, Lessor shall have the right at all times to enforce the covenants and provisions of this lease in strict accordance with its terms, notwithstanding any conduct or custom on the part of the Lessor in refraining from so doing at any time or times: and, further, that the failure of Lessor at anytime or times to enforce its rights under these covenants and provisions strictly in accordance with the same shall not be construed as having created a custom in any way or manner contrary to the specific terms, provisions and covenants of this lease or as having in any way or manner modified the same. (c) Conduct of Lessee. This lease is granted upon the express condition that Lessee and/or the occupants of the premises herein leased, shall not conduct themselves in a manner which the Lessor in its sole opinion may deem improper or objectionable, and that if at any time during the term of this lease or any extension or continuation, Lessee or any occupier of the premises shall have conducted himself, herself or themselves in a manner which Lessor in its sole opinion deems improper or objectionable, Lessee shall be taken to have broken the covenants and conditions of this lease, and Lessor will be entitled to all the rights and remedies granted and reserved in this Agreement, for the Lessee's failure to observe any of the covenants and conditions of this lease. (d) Failure of Lessee to Repair. In the event of the failure of Lessee promptly to perform the covenants of Section 4(b), Lessor may go upon the demised premises and perform such covenants, the costs, at the sole option of Lessor, to be charged to Lessee as additional and delinquent rent. 10. Remedies of Lessor. If the Lessee: (a) Does not pay in full when due any and all installments of rent and/or any other charge or payment reserved, included, or agreed to be treated or collected, as rent and/or any other charge, expense, or cost agreed to be paid by the Lessee; or (b) Violates or fails to perform or otherwise breaks any covenant or agreement herein contained; or (c) Violates or fails to perform or otherwise breaks any covenant or agreement contained in the Stock Purchase Agreement and Promissory Note; or (d) Vacates the demised premises or removes or attempts to remove or manifests an intention to remove any goods or property therefrom other than in the ordinary and usual course of business without having first paid and satisfied the Lessor in full for all rent and other charges then due or that may thereafter become due until the expiration of the then current term, above mentioned; or (e) Becomes insolvent, or makes an assignment for the benefit of creditors, or if a petition in bankruptcy is filed by or against the Lessee or a bill in equity or other proceeding for the appointment of a receiver for the Lessee is filed, or if proceedings for reorganization or for composition with creditors under any state or federal law are instituted by or against Lessee, or if the real or personal property of the Lessee shall be sold or levied upon by any sheriff, marshal or constable, then and in any or either of these events, there shall be deemed to be a breach of this lease, and due to that breach and without entry or other action by Lessor; (i) The rent for the entire unexpired balance of the term of this lease, as well as all other charges, payments, costs and et penes agreed to be paid by the Lessee, or at the op- tion of Lessor any part of it, and also costs and$bfficer's commissions including watchman's wages and further including the five percent chargeable by Act of Assembly to the Lessor, shallgin addition to any and all installments of rent already due and payment herein reserved, included or agreed to be treated or collected as rent, and/or any other charge, expense or cost agreed to be paid by the Lessee which may be due and payable and in arrears, be taken to be due and payable in arrears as if by the terms and provisions. of this lease, the whole balance of unpaid rent and other charges, payments, taxes, costs and expenses were on that date payable in advance; and if this lease or any part is assigned, or if the premises or any part is sublet, Lessee hereby irrevocably / constitutes and appoints Lessor Lessee's agent to collect the rents due by such assignee or sublessee and apply the same to the rent due without in any way affecting Lessee's obligation to pay any unpaid balance of rent due hereunder or in the event of any of the foregoing at any time at the option of Lessor; 6 wri, (ii) This lease and the term hereby created shall terminate and become absolutely° void without any right on the part of the Lessee to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; whereupon, Lessor shall be entitled to.recover. damages for such breach in an amount equal to the amount of rent reserved for the balance of the term of this lease. 11. Further Remedies of Lessor. In the event of any default as above set forth in Section 10, the Lessor, or anyone acting on Lessor's behalf, at Lessor's option: (a) may without notice or demand enter the demised premises, breaking open locked doors if necessary to effect entrance, without liability to action for prosecution or damages for such entry or for its manner, for the purpose of distraining or levying and for any other purposes, and take possession of and sell all goods and chattels at auction, on three days' notice served in person on the Lessee, or left on the premises, and pay the Lessor out of the proceeds, and even if the rent is not due and unpaid, should the Lessee at any time remove or attempt to remove goods and chattels from the premises without leaving enough thereon to meet the next periodical payment, Lessee authorizes the Lessor to follow for a period of ninety days after such removal, take possession of and sell at auction, upon like notice, sufficient of such goods to meet the proportion of rent accrued at the time of such removal; and the Lessee hereby releases and discharges the Lessor, and his agents from all claims, actions, suits, damages and penalties, for.or by reason or on account of any entry, distraint, levy, appraisement or sale; and/or (b) may enter the premises, and without demand proceed by distress and sale of the goods there found to levy the rent and/or other charges payable as rent, and all costs and officers' commissions, included watchmen's wages and sums chargeable to Lessor, and further including a sum equal to five percent (5%) of the amount of the levy as commissions to the constable or other person making the levy, shall be paid by the Lessee, and in.such case all costs, officers' commission and other charges shall immediately attach and become part of the claim of Lessor for rent, and any tender of rent without the costs, commission and charges made after the issue of a warrant of distress shall not be sufficient to satisfy the claim of,the Lessor. Lessee hereby expressly waives in favor of Lessor the benefit of all laws now made or which may hereafter be made regarding any limitation on the goods upon which, or the time within which, distress is to be made after removal of goods, and further relieves the Lessor of the obligations of proving or identifying such goods, it being the purpose and intent of this provision that all goods of Lessee, whether upon the demised premises or not, shall be liable to distress for rent. (c) The Lessee further waives the right to issue a Writ of Replevin under the Pennsylvania Rules of Civil Procedure No. 1071 et seq. and Laws of the Commonwealth of Pennsylvania under any other law previously enacted or now in force or which may be hereafter enacted, for the recovery of any articles, household goods, furniture, etc., seized under a distress for rent or levy upon an execution for rent, damages or otherwise; all waivers mentioned above are hereby extended to apply to any such action; and/or (d) May lease the premises or any part or parts of it to such person or persons as may in Lessor's discretion seem best and the Lessee shall be liable for any loss of rent for the balance of 7 the then current term. 12. Ejectment. When this lease shall be terminated by condition`broken, either during the original teith ofthis lease or any renewal or extension; and also when and as soon as the term hereby created or any extension shall have expired, it shall be lawful for any attorney as attorney for Lessee to-file-an agreement for entering in any competent court an amicable action and judgment in ejectment against Lessee and all persons claiming under Lessee for the recovery by Lessor of possession of the demised premises, for which this lease shall be his sufficient warrant, whereupon, if Lessor so desires, a writ of possession may issue, without any prior proceedings whatsoever, and provided that if for any reason after such action shall have been commenced the same shall be determined and the possession of the premises hereby demised remain in or be restored to Lessee. Lessor shall have the right upon any subsequent default or defaults, or upon the termination of this lease, to bring one or more amicable action or actions to recover possession of the said premises. 13. Affidavit of Default. In any amicable action of ejectment and/or for rent in arrears, Lessor shall first cause to be filed in such action an affidavit made by it or someone acting for it setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence, and if a true copy of this lease (and of the truth of the copy such, affidavit shall be sufficient evidence) be filed in such action, it shall not be necessary to file the original as a warrant of attorney, any rule of Court, custom or practice to the contrary. 14. Waivers by Lessee of Errors, Right-of Appeal, Stay Exemption, Inquisition. Lessee expressly agrees that any judgment,. order or decree entered against it by or in any court of magistrate by virtue of the powers of attorney contained in this lease, or otherwise, shall be final, and that it will not take an appeal, certain, writ of error, exception or objection to the same, or file a motion or rule to strike off or open or to stay execution of the same, and releases to Lessor and to any and all attorneys who may appear for Lessee all errors in the proceedings, and all . liability. Lessee expressly waives the benefits of all laws, now or hereafter in force, exempting any goods on the demised premises, or elsewhere from distraint, levy or sale in any legal proceedings taken by the Lessor to enforce any rights under the lease. Lessee further waives the right to petition for the stay of any execution on any real estate that may be levied upon to collect any amount which may become due under the terms and conditions of this lease, and does voluntarily authorize the prothonotary or clerk of court to issue a writ or writs of execution for the sale of the same. If proceedings shall be commenced by Lessor to recover possession under the Acts of Assembly, either at the end of the term or sooner termination of this lease, or for nonpayment of rent or any other reason, Lessee specifically waives the right to the three months' notice, andlor the fifteen or thirty days' notice required by the Pennsylvania Landlord and Tenant Act of 1951, as amended, and agrees that five days' notice shall be sufficient in either or any such case. 15. Right of Assignee of Lessor. The right to enter judgment against Lessee and to enforce all of the other provisions of this lease may, at the option of any assignee of this lease, be exercised by any assignee of the Lessor's right, title and interest in this lease in his, her or their own name, notwithstanding the fact that any or all assignments of the right, title and interest may not be executed and/or witnessed in accordance with the Act of Assembly of May 28, 1715, 1 Sm. L. 94, and all supplements and amendments that have been or may hereafter be passed and Lessee hereby expressly waives the requirements of said Act of Assembly and any and all laws regulating manner and/or form in which such assignments shall be executed and witnessed. 16. Remedies Cumulative. All of the remedies herein given to Lessor and all rights and remedies given to it by law and equity shall be cumulative and concurrent.;No.termin.Oon of this lease or the taking or recovering of the premises shall deprive Lessor of any of its remedies or actions against the Lessee for rent due at the time or which, under its terms, would in the future become due as if there had been no termination, or for sums due at the time or which, under its. terms, would in the future become due as if there had been no termination, nor shall the bringing of any action for rent or breach of covenant, or the resort to any other remedy herein for the recovery of rent be construed as a waiver of the right to obtain possession of the premises. 17. Termination of Lease. It is hereby mutually agreed that either party may terminate this lease at the end of its ten (10) year term by giving to the other party written notice at least ninety (90) days prior thereto, but in default of such notice, this lease shall continue upon the same terms and conditions in force immediately prior to the expiration of its term as for a further term of one (1) year and so on, unless or until terminated by either party hereto, giving the other ninety (90) days written notice for removal previous to expiration of the then current term; PROVID$D, however, that should this lease be continued for a further period under the terms herein above-mentioned, the rental amount is subject to an increase and the lease conditions are subject to modification for each term beyond the original .ten (10) year term, provided that Lessor shall have given one hundred twenty (120) days written notice prior to the expiration of any term of its intention-to change-.the rental amount and conditions of this lease. Nothing in this Agreement shall be construed as giving the Lessee the option to terminate this lease prior to the expiration of its ten (10) year term. 18. Notice. All notices required to be given by Lessor to Lessee shall be sufficiently given by leaving the same upon the demised premises, but notices given by Lessee to Lessor must be given by registered mail, and as against Lessor the only admissible evidence that notice has been given by Lessee shall be a registry return receipt signed by Lessor or its agent. 19. Lease Contains.411 Agreements. It is expressly understood and agreed by and between the parties that this lease and the riders attached to it and forming a part of it set forth all the promises, agreements, conditions and understandings between Lessor or its Agent and Lessee relative to the demised premises, and that there are no promises, agreements, conditions or understandings, either oral or written, between them other than are set forth. It is further understood and agreed that, except as otherwise provided, no subsequent alteration, amendment, change or addition to this lease shall be binding upon Lessor or Lessee unless reduced to writing and signed by them. 20. Heirs and Assignees. All rights and liabilities given to, or imposed upon, the respective parties shall extend to and bind the several and respective heirs, executors, administrators, successors and assigns of the parties; and if there shall be more than one Lessee, they shall all be bound jointly and severally by the terms, covenants and agreements of this Agreement, and the word "Lessee" shall be deemed and taken to mean each and every person or parry mentioned as a Lessee, be the same one or more; and if there shall be more than one 9 _ Lessee, any notice required or permitted by the terms of this lease may be given by or to anyone of them, and shall have the same force and effect as if given by or to all. No rights, however, shall inure to the benefit of any assignee of Lessee unless the assignment to such assignee has been approved by Lessor in writing. 21. Headings No Part of Lease. Any headings preceeding the text of the paragraphs and subparagraphs of this Agreement are inserted solely for convenience or reference and shall not affect its meaning, construction, or effect. IN' WITNESS WHEREOF, the parties have executed the foregoing Agreement presents the day and year first above written, and intend to be legally bound. Ray Cullen, Owner and Officer For Shetron Welding & Fabrication, Inc., Lessee / j Kirk. Naugle, Owner nd Officer For Shetron Welding & Fabrication, Inc., Lessee Terry Shetron, Lessor On this ? day of l fjLL Q,1 2004, before me, the undersigned officer, personally appeared Terry/Shetron, Ray Cullen, and Kirk Naugle, known to me (or satisfactory proven) to be the person whose name is subscribed to the within Agreement and acknowledged that she executed the sarne for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my-hand and official seal. ASON ASOK MAAM, NdNdwy public Notpry Public 8010, QX*WMW C=* W Canmie=ion E*kn Jane 28 10 ?x r Page 1 of 2 1-16-2009 Year Jan. Feb. Mar. 1913 9.8 9.8 9.8 1914 10.0 9.9 9.9 1915 10.1 10.0 9.9 1916 10.4 10.4 10.5 1917 11.7 12.0 12.0 1918 14.0 14.1 14.0 1919 16.5 16.2 16.4 1920 19.3 19.5 19.7 1921 19.0 18.4 18.3 1922 16.9 16.9 16.7 1923 16.8 16.8 16.8 1924 17.3 17.2 17.1 1925 17.3 17.2 17.3 1926 17.9 17.9 17.8 1927 17.5 17.4 17.3 1928 17.3 17.1 17.1 1929 17.1 17.1 17.0 1930 17.1 17.0 1619 1931 15.9 15.7 15.6 1932 14.3 14.1 14.0 1933 12.9 12.7 12.6 1934 13.2 13.3 13.3 1935 13.6 13.7 13.7 1936 13.8 13.8 13.7 1937 14.1 14.1 14.2 1938 14.2 14.1 14.1 1939 14.0 13.9 13.9 1940 13.9 14.0 14.0 1941 14.1 14.1 14.2 1942 15.7 15.8 16.0 1943 16.9 16.9 17.2 1944 17.4 17.4 17.4 1945 17.8 27.8 17,8 1946 18.2 3.8.1 18.3 1947 21.5 21.5 21.9 1948 23.7 23.5 23.4 1949 24.0 23.8 23.8 1950 23.5 23.5 23.6 1951 25.4 25.7 24.8 1952 26.5 26.3 26.3 1953 26.6 26.5 26.6 1954 26.9 26.9 26.9 1955 26.7 26.7 26.7 1956 26.8 26.8 26.8 1957 27.6 27.7 27.8 1958 28.6 28.6 28.8 1959 29.0 28.9 28.9 1960 29.3 29.4 29.4 1961 29.8 29.8 29.8 1962 30.0 30.1 30.1 1963 30.4 30.4 30.5 1964 30.9 30.9 30.9 1965 31.2 31.2 31.3 1966 31.8 32.0 32.1 1967 32,9 32.9 33.0 1968 34.1 34.2 34.3 1969 35.6 35.6 36.1 1970 37.8 38.0 38.2 1971 39.8 39.9 40.0 1972 41.1 41.3 41.4 1973 42.6 42.9 43.3 1974 46.6 47.2 47.8 1975 52.1 52.5 52.7 1976 55.6 55.8 55.9 1977 58.5 59.1 59.5 1978 62.5 62.9 63.4 1979 68.3 69.1 69.8 1980 77.8 78.9 80.1 Apr. 9.8 9.8 10.0 10.6 12.6 14.2 16.7 20.3 18.1 16.7 16.9 17.0 17.2 17.9 17.3 17.1 16.9 17.0 15.5 13.9 12.6 13.3 13.8 13.7 14.3 14.2 13.8 14.0 14.3 16.1 17.4 17.5 17.8 18.4 21.9 23.8 23.9 23.6 25.6 26.4 26.6 26.8 26.7 26.9 27.9 28.9 29.0 29.5 29.8 30.2 30.5 30.9 31.4 32.3 33.1 34.4 36.3 38.5 40.1 41.5 43.6 48.0 52.9 56.1 60.0 63.9 70.6 81.0 U.S. Department Of Labor Bureau of Labor Statistics Washington, D.C. 20212 Consumer Price Index All Urban Consumers - (CPI-U) U.S. city average All items 1982-84=100 May June July Aug. 9.7 9.8 9.9 9.9 9.9 9.9 10.0 10.2 10.1 10.1 10.1 10.1 10.7 10.8 10.8 10.9 12.8 13.0 12.8 13.0 14.5 14.7 15.1 15.4 16.9 16.9 17.4 17.7 20.6 20.9 20.8 20.3 17.7 17.6 17.7 17.7 16.7 16.7 16.8 16.6 16.9 17.0 17.2 17.1 17.0 17.0 17.1 17.0 17.3 17.5 17.7 17.7 17.8 17.7 17.5 17.4 17.4 17.6 17.3 17.2 17.2 17.1 17.1 17.1 17.0 17.1 17.3 17.3 16.9 16.8 16.6 16.5 15.3 15.1 15.1 15.1 13.7 13.6 13.6 13.5 12.6 12.7 13.1 13.2 13.3 13.4 13.4 13.4 13.8 13.7 13.7 13.7 13.7 13.8 13.9 14.0 14.4 14.4 14.5 14.5 14.1 14.1 14.1 14.1 13.8 13.8 13.8 13.8 14.0 14.1 14.0 14.0 14.4 14.7 14.7 14.9 16.3 16.3 16.4 16.5 17.5 17.5 17.4 17.3 17.5 17,6 17,7 17.7 17.9 18.1 18.1 18.1 18.5 18.7 19.8 20.2 21.9 22.0 22.2 22.5 23.9 24.1 24.4 24.5 23.8 23.9 23.7 23.8 23.7 23.8 24.1 24.3 25.9 25.9 25.9 25.9 26.4 26.5 26.7 26.7 26.7 26.8 26.8 26.9 26.9 26.9 26.9 26.9 26.7 26.7 26.8 26.8 27.0 27.2 27.4 27.3 26.0 28.1 28.3 28.3 28.9 28.9 29.0 28.9 29.0 29.1 29.2 29.2 29.5 29.6 29.6 29.6 29.8 29.8 30.0 29.9 30.2 30.2 30.3 30.3 30.5 30.6 30.7 30.7 30.9 31.0 31.1 31.0 31.4 31.6 31.6 31.6 32.3 32.4 32.5 32.7 33.2 33.3 33.4 33.5 34.5 34.7 34.9 35.0 36.4 36.6 36.8 37.0 38.6 38.6 39.0 39.0 40.3 40.6 40.7 40.8 41.6 41.7 41.9 42.0 43.9 44.2 44.3 45.1 48.6 49.0 49.4 50.0 53.2 53.6 54.2 54.3 56.5 56.8 57.1 57.4 60.3 60.7 61.0 61.2 64.5 65.2 65.7 66.0 71.5 72.3 73.1 73.8 81.8 82.7 82.7 83.3 Sep. Oct. 10.0 10.0 10.2 10.1 10.1 10.2 11.1 11.3 13.3 13.5 15.7 16.0 17.8 18.1 20.0 19.9 17.5 17.5 16.6 16.7 17.2 17.3 17.1 17.2 17.7 17.7 17.5 17.6 17.3 17.4 17.3 17.2 17.3 17.3 16.6 16.5 15.0 14.9 13.4 13.3 13.2 13.2 13.6 13.5 13.7 13.7 14.0 14.0 14.6 14.6 14.1 14.0 14.1 14.0 14.0 14.0 15.1 15.3 16.5 16.7 17.4 17.4 17.7 17.7 18.1 18.1 20.4 20.8 23.0 23.0 24.5 24.4 23.9 23.7 24.4 24.6 26.1 26.2 26.7 26.7 26.9 27.0 26.8 26.8 26.9 26.9 27.4 27.5 28.3 28.3 28.9 28.9 29.3 29.4 29.6 29.8 30.0 30.0 30.4 30.4 30.7 30.8 31.1 31.1 31.6 31.7 32.7 32.9 33.6 33.7 35.1 35.3 37.1 37.3 39.2 39.4 40.8 40.9 42.1 42.3 45.2 45.6 50.6 51.1 54.6 54.9 57.6 57.9 61.4 61.6 66.5 67.1 74.6 75.2 84.0 84.8 Nov. 10.1 10.2 10.3 11.5 13.5 16.3 18.5 19.8 17.4 16.8 17.3 17.2 18.0 17.7 17.3 17.2 17.3 16.4 14.7 13.2 13.2 13.5 13.8 14.0 14.5 14.0 14.0 14.0 15.4 16.8 17.4 17.7 18.1 21.3 23.1 24.2 23.8 24.7 26.4 26.7 26.9 26.8 26.9 27.5 28.4 29.0 29.4 29.8 30.0 30.4 30.8 31.2 31.7 32.9 33.8 35.4 37.5 39.6 40.9 42.4 45.9 51.5 55.3 58.0 61.9 67.4 75.9 85.5 Annual Dec. Avg. 10.0 9.9 10.1 10.0 10.3 10.1 11.6 10.9 13.7 12.8 16.5 15.1 18.9 17.3 19.4 20.0 17.3 17.9 16.9 16.8 17.3 17.1 17.3 17.1 17.9 17,5 17.7 17.7 17.3 17.4 17.1 17.1 17.2 17,1 16.1 16.7 14.6 15.2 13.1 13.7 13.2 13.0 13.4 13.4 13.8 13.7 14.0 13.9 14.4 14.4 14.0 14.1 14.0 13.9 14.1 14.0 15.5 14.7 16.9 16.3 17.4 17.3 17.8 17.6 18.2 18.0 21.5 19.5 23.9 22.3 24.1 24.1 23.6 23.8 25.0 24.1 26.5 26.0 26.7 26.5 26.9 26.7 26.7 26.9 26.8 26.8 27.6 27.2 28.4 28.1 28.9 28.9 29.4 29.1 29.8 29.6 30.0 29.9 30.4 30.2 30.9 30.6 31.2 31.0 31.8 31.5 32.9 32.4 33.9 33.4 35.5 34.8 37.7 36.7 39.8 38.8 41.1 40.5 42.5 41.8 46.2 44.4 51.9 49.3 55.5 53.8 58.2 56.9 62.1 60.6 67.7 65.2 76.7 72.6 86.3 82.4 tercent change Dec- Avg- Dec Avg 1.0 1.0 2.0 1.0 12.6 7.9 18.1 17.4 20.4 18.0 14.5 14.6 2.6 15.6 -10.8 -10.5 -2.3 -6.1 2.4 1.8 0.0 0.0 3.5 2.3 -1.1 1.1 -2.3 -1.7 -1.2 -1.7 0.6 0.0 -6.4 -2.3 -9.3 -9.0 -10.3 -9.9 0.8 -5.1 1.5 3.1 3.0 2.2 1.9 1.5 2.9 3.6 -2.8 -2.1 0.0 -1.4 0.7 0.7 9.9 5.0 9.0 10.9 3.0 6.1 2.3 1.7 2.2 2.3 18.1 8.3 8.8 14.4 3.0 8.1 -2.1 -1.2 5.9 1.3 6.0 7.9 0.8 1.9 0.7 0.8 -0.7 0.7 0.4 -0.4 3.0 1.5 2.9 3.3 1.8 2.8 1.7 0.7 1.4 1.7 0.7 1.0 1.3 1.0 1.6 1.3 1.0 1.3 1.9 1.6 3.5 2.9 3.0 3.1 4.7 4.2 6.2 5.5 5.6 5.7 3.3 4.4 3.4 3.2 8.7 6.2 12.3 11.C 6.9 9.1 4.9 S.E 6.7 6.E 9.0 7.E 13.3 11.-- 12.5 13.E ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt 2/5/2009 Page 2 of 2 1981 87.0 87.9 88.5 89.1 89.8 90.6 91.6 92.3 93.2 93.4 93.7 94.0 90.9 8.9 10.3 1982 94.3 94.6 94.5 94.9 95.8 97.0 97.5 97.7 97.9 98.2 98.0 97.6 96.5 3.8 6.2 1983 97.8 97.9 97.9 98.6 99.2 99.5 99.9 100.2 100.7 101.0 101.2 101.3 99.6 3.8 3.2 1984 101.9 102.4 102.6 103.1 103.4 103.7 104.1 104.5 105.0 105.3 105.3 105.3 103.9 3.9 4.3 1985 105.5 106.0 106.4 106.9 107.3 107.6 107.8 108.0 108.3 108.7 109.0 109.3 107,6 3.8 3.6 1986 109.6 109.3 108.8 108.6 108.9 109.5 109.5 109.7 110.2 110.3 110.4 110.5 109.6 1.1 1.9 1987 111.2 111.6 112.1 112.7 113.1 113.5 113.8 114.4 115.0 115.3 115.4 115.4 113.6 4.4 3.6 1988 115.7 116.0 116.5 117.1 117.5 118.0 118.5 119.0 119.8 120.2 120.3 120.5 118.3 4.4 4.1 1989 121.1 121.6 122.3 123.1 123.8 124.1 124.4 124.6 125.0 125.6 125.9 126.1 124.0 4.6 4.8 1990 127.4 128.0 128.7 128.9 129.2 129.9 130.4 131.6 132.7 133.5 133.8 133.8 130.7 6.1 5.4 1991 134.6 134.8 135.0 135.2 135.6 136.0 136.2 136.6 137.2 137.4 137.8 137.9 136.2 3.1 4.2 1992 138.1 138.6 139.3 139.5 139.7 140.2 140.5 140.9 141.3 141.8 142.0 141.9 140.3 2.9 3.0 1993 142.6 143.1 143.6 144.0 144.2 144.4 144.4 144.8 145.1 145.7 145.8 145.8 144.5 2.7 3.0 1994 146.2 146.7 147.2 147.4 147.5 148.0 148.4 149.0 149.4 149.5 149.7 149.7 148.2 2.7 2.6 1995 150.3 150.9 151.4 151.9 152.2 152.5 152.5 152.9 153.2 153.7 153.6 153.5 152.4 2.5 2.8 1996 154.4 154.9 155.7 156.3 156.6 156.7 157.0 157.3 157.8 158.3 158.6 15816 156.9 3.3 3.0 1997 159.1 159.6 160.0 160.2 160.1 160.3 160.5 160.8 161.2 161.6 161.5 161.3 160.5 1.7 2.3 1998 161.6 161.9 162.2 162.5 162.8 163.0 163.2 163.4 163.6 164.0 164.0 163.9 163.0 1.6 1.6 1999 164.3 164.5 165.0 166.2 166.2 166.2 166.7 167.1 167.9 168.2 168.3 168.3 166.6 2.7 2.2 2000 168.8 169.8 171.2 171.3 171.5 172.4 172.8 172.8 173.7 174.0 174.1 174.0 172.2 3.4 3.4 2001 175.1 175.8 176.2 176.9 177.7 178.0 177.5 177.5 178.3 177.7 177.4 176.7 177.1 1.6 2.8 2002 177.1 177.8 178.8 179.8 179.8 179.9 180.1 180.7 181.0 181.3 181.3 180.9 179.9 2.4 1.6 2003 181.7 183.1 184.2 183.8 183.5 183.7 183.9 184.6 185.2 185.0 184.5 184.3 184.0 1.9 2.3 2004 185.2 186.2 187.4 188.0 189.1 189.7 189.4 189.5 189.9 190.9 191.0 190.3 188.9 3.3 2.7 2005 190.7 191.8 193.3 194.6 194.4 194.5 195.4 196.4 198.8 199.2 197.6 196.8 195.3 3.4 3.4 2006 198.3 198.7 199.8 201.5 202.5 202.9 203.5 203.9 202.9 201.8 201.5 201.8 201.6 2.5 3.2 2007 202.416 203.499 205.352 206.686 207.949 208.352 208.299 207.917 208.490 208.936 210.177 210.036 207.342 4.1 2.8 2008 211.080 211.693 213.528 214.823 216.632 218.815 219.964 219.086 218.783 216.573 212.425 210.228 215.303 0.1 3.8 ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt 2/5/2009 T °C U Q, `^1 N ?1 n rv c_ O y G 1 i:.? S"'FT r. Fn SHERIFF'S RETURN - REGULAR CASE NO: 2009-00661 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SHETRON TERRY J VS SHETRON WELDING AND FABRICATIO KENNETH E GOSSERT Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SHETRON WELDING AND FABRICATION INC the DEFENDANT , at 0015:28 HOURS, on the 11th day of February-, 2009 at 85 KUTZ ROAD CARLISLE, PA 17013 by handing to KIRK NAUGLE OWNER OF BUSINESS 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 9.90 ?a4 ??7 Affidavit .00 Surcharge 10.00 R. Thomas Kline Postage .42 38.32 02/12/2009 LATSHA DAVIS YOHE MCKENNA Sworn and Subscibed to By: before me this day D uty e of A.D. r ? Mn Co ?l SHERIFF'S RETURN - REGULAR CASE NO: 2009-00661 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SHETRON TERRY J VS SHETRON WELDING AND FABRICATIO KENNETH E GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon T.1TT1r1_T = VTnV the DEFENDANT , at 0015:28 HOURS, on the 11th day of February-, 2009 at 85 KUTZ ROAD CARLISLE, PA 17013 KIRK NAUGLE DEFENDANT 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: Docketing Service Affidavit Surcharge Sworn and Subscibed to before me this of by handing to 6.00 .00 .00 10.00 .00 16.00 day So Answers: R. Thomas Kline 02/12/2009 LATSHA DAVIS YOHE MCKENNA By: .7 1,52 A. D. J C", SHERIFF'S RETURN - REGULAR CASE NO: 2009-00661 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SHETRON TERRY J VS SHETRON WELDING AND FABRICATIO KENNETH E GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CULLEN RAY the DEFENDANT at 85 KUTZ ROAD at 0015:28 HOURS, on the 11th day of February-, 2009 CARLISLE, PA 17013 by handing to KIRK NAUGLE 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 6.00 Service .00 10, Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 16.00 02/12/2009 LATSHA DAVIS YOHE MCKENNA Sworn and Subscibed to before me this By: day of A. D. ra .,?. ..? "? ? rn ,? .s ?: ,- ;: ?i ? ?' i"`j ??° :';:! ?? r f Dean F. Piermattei, Esquire Attorney I.D. No. 53847 Jillian M. Petrosky, Esquire Attorney I.D. No. 206510 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendants TERRY J. SHETRON Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW SHETRON WELDING & FABRICATION, INC., RAY CULLEN AND KIRK NAUGLE Defendants : No. 09-661 NOTICE TO PLEAD To: Terry J. Shetron c/o Glenn R. Davis, Esquire Latsha Davis Yohe & McKenna, P.C. 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 You are hereby notified to file a written response to the enclosed Preliminary Objections to the Complaint within twenty (20) days from service hereof or a default judgment may be entered against you. Respectfully submitted, RHOADS & SINON LLP By. t;?-p t P- v W-0' -`el S Dean F. Piermattei, Esquir Jillian M. Petrosky, Esquire One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendants 733162.1 . . 11 Dean F. Piermattei, Esquire Attorney I.D. No. 53847 Jillian M. Petrosky, Esquire Attorney I.D. No. 206510 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendants TERRY J. SHETRON, V. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW SHETRON WELDING & FABRICATION, INC., RAY CULLEN AND KIRK NAUGLE, Defendants No. 09-661 DEFENDANTS' PRELIMINARY OBJECTIONS TO COMPLAINT NOW COME Defendants Kirk Naugle ("Naugle"), Ray Cullen ("Cullen") and Shetron Welding & Fabrication, Inc. ("Shetron Welding") (collectively "Defendants"), by and through their attorneys, Rhoads & Sinon LLP, and file the within Preliminary Objections to the Complaint filed by Plaintiff Terry Shetron and state as follows: FACTUAL BACKGROUND 1. Plaintiff, Terry Shetron ("Plaintiff'), is an adult individual residing at 1505 Walnut Bottom Rod, Newville, Cumberland County, Pennsylvania, 17241. 2. Defendant, Shetron Welding, is a Pennsylvania Corporation with a principal place of business located at 85 Kurtz Road, Carlisle, Cumberland County, Pennsylvania, 17013. 633972.1 3. Defendants Cullen and Naugle are officers and owners of Shetron Welding. 4. On February 9, 2009, Plaintiff filed a Complaint charging Defendants with breach of contract and requesting approximately $545,160.00 in damages. (A copy of the Complaint is attached hereto as Exhibit "A" and incorporated herein by reference). 5. Specifically, Plaintiff claims that Defendants breached a Commercial Property Lease Agreement ("Lease") for failing to pay rent monies alleged to be due and owing under the Lease. (A copy of the Lease is attached hereto as Exhibit "B" and incorporated herein by reference). 6. In the Complaint, Plaintiff purports to hold Naugle and Cullen individually liable under the terms of the Lease. (See Exhibit A - Complaint, 16) (stating "Cullen executed the Lease both as an officer of Shetron Welding and in his individual capacity as owner of Shetron Welding"); (Exhibit A - Complaint, 18) (stating "Naugle executed the Lease both as an officer of Shetron Welding and in his individual capacity as owner of Shetron Welding"). 7. For the following reasons, Plaintiff's claim that Naugle and Cullen are individually liable under the Lease is meritless as it is contrary to both the unambiguous provisions of the Lease and well-settled principles of law. Accordingly, Defendants respectfully request that the Court sustain the following Preliminary Objection. COUNT I- DEMURRER 8. Defendants incorporate Paragraphs 1 through 7 above. 9. Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure provides that preliminary objections may be filed to any pleading when the claims alleged therein are legally insufficient. Pa. R. Civ. P. 1028(a)(4). -2- 10. In Pennsylvania, it is well-settled that "one cannot be liable for a breach of contract unless one is a party to that contract." Electron Energy Corp. v. Short, 408 Pa. Super. 563, 567, 597 A.2d 175, 176-77 (1991) (citing Viso v. Werner, 471 Pa. 42, 369 A.2d 1185 (Pa. 1977)). 11. Here, the Lease explicitly provides that the parties thereto are Shetron Welding and Defendant. It was signed by both Naugle and Cullen only as agents for Shetron Welding. The Lease provides, in pertinent and relevant part: THIS AGREEMENT, dated this 12`h day of January, 2004, by and between Shetron Welding and Fabrication, Inc. (hereinafter called Lessee), and Terry J. Shetron (hereinafter called Lessor). IN WITNESS WHEREOF, the parties have executed the foregoing Agreement presents the day and year first above written and intend to be legally bound. By: /s/ Ray Cullen, Owner and Officer For Shetron Welding & Fabrication, Inc. Lessee By: /s/ Kirk Naugle, Owner and Officer For Shetron Wleding & Fabrication, Inc. Lessee By: /s/ Terry Shetron, Lessee (Exhibit B, p. 1, 10) (emphasis added). 12. Because neither Naugle or Cullen are parties to the Lease, Plaintiff's claim that the same are individually liable fails as a matter of law. 13. To the extent that Plaintiff avers that "Plaintiff and Defendants agreed that Defendants would sign the Lease in their individual capacities to provide security for the Lease payments" that allegation does not allow Plaintiff's claim of individual liability to survive. (Exhibit A - Complaint, 125). -3- 14. In order to claim that an agent is liable under a contract when the principal is disclosed, the contract must evidence an intent to bind the agent individually. When no such intent appears in the written contract, an agent should not be held individually liable. Viso, 471 Pa. at 48. 15. Here, the Lease does not contain a single provision that would allow Naugle or Cullen to be individually liable. Furthermore, any alleged oral or written agreement stating that Naugle or Cullen are individually liable is null and void pursuant to Paragraph 19 of the Lease. Paragraph 19 contains an integration clause stating that the Lease serves as the entire agreement between the parties. Paragraph 19 of the Lease provides: Lease Contains All Agreements. It is expressly understood and agreed by and between the parties that this lease and the riders attached to it and forming a part of it set forth all the promises, agreements, conditions and understandings between Lessor or its Agent and Lessee relative to the demised premises, and that there are not promises, agreements, conditions or understandings, either oral or written, between them other than are set forth. It is further understood and agreed that, except as otherwise provided, no subsequent alteration, amendment, change or addition to this lease shall be binding upon Lessor or Lessee unless reduced to writing and signed by them. (Exhibit B - Lease Agreement, § 19). 16. Because the Lease explicitly identifies Shetron Welding as the principal and because any alleged oral or written agreements imposing individual liability on Naugle and Cullen are invalid pursuant to Paragraph 19 of the Agreement, Plaintiff's claim that Naugle and Cullen are individually liable fails as a matter of law. -4- WHEREFORE Defendants, Shetron Welding, Kirk Naugle and Ray Cullen, respectfully request that this Court sustain the within Preliminary Objection, striking Kirk Naugle and Ray Cullen as Defendants in this action. RHOADS & SINON LLP r'6 v-V" "SCD By: Dean F. Piermattei, Esquire Jillian M. Petrosky, Esquire One South Market Square Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendants -5- EXHIBIT A 549937.1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TERRY J. SHETRON, Plaintiff V. SHETRON WELDING AND FABRICATION, INC. and RAY CULLEN and KIRK NAUGLE, in their official and individual capacities 85 Kutz Road Carlisle, Pennsylvania 17013, Defendants NOTICE No. 6 Imo- 4 41 CIVIL TERM CIVIL ACTION - LAW You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You.are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyers Reference Service o Cumberland County Bar Association 32 S. Bedford Street ;:: a Carlisle, PA 17013 r? 800-990-9108 =' 1° u (717) 249-3166 j c'5 ? rn r? 12.8304 n ? i T 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 acci6n dentro de los pr6ximos veinte (20) dias despu6s de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mks aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Lawyers Reference Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 800-990-9108 (717) 249-3166 129304 • , _ t r Glenn R. Davis Attorney I. D. No. 31040 Andrea E. Dean Attorney I.D. No. 86301 Latsha Davis Yohe & McKenna, P.C. 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 (717) 620-2424 Attorneys for Plaintiff, Terry Shetron IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TERRY J. SHETRON, Plaintiff V. SHETRON WELDING AND FABRICATION, INC. and RAY CULLEN and KIRK NAUGLE, in their official and individual capacities 85 Kutz Road Carlisle, Pennsylvania 17013, Defendants COMPLAINT No. 07-6 61 CIVIL TERM CIVIL ACTION - LAW AND NOW, COMES, Plaintiff, Terry J. Shetron, by and through its attorneys, Latsha Davis Yohe & McKenna, P.C., and makes his Complaint against Defendants Shetron Welding and Fabrication, Inc., Ray Cullen and Kirk Naugle (collectively, "Defendants") as follows: 1. Plaintiff, Terry J. Shetron ("Shetron"), is an adult individual residing at 1505 Walnut Bottom Road, Newville, Cumberland County, Pennsylvania 17241. 2. Defendant, Shetron Welding and Fabrication, Inc. ("Shetron Welding"), is a Pennsylvania corporation with a principal place of business located at 85 Kutz Road, Carlisle, Cumberland County, Pennsylvania 17013. 3. Defendant, Ray Cullen ("Cullen"), is an adult individual who, upon information and belief, resides at 609 West King Street, Shippensburg, Cumberland County, Pennsylvania 17257. 4. Defendant, Kirk Naugle ("Naugle"), is an adult individual who, upon information and belief, resides at 1100 Remington Drive, Shippensburg, Cumberland County, Pennsylvania 17257. 5. On or about January 12, 2004, Shetron and Defendants entered into a Commercial Property Lease Agreement ("Lease"). See Lease attached as Exhibit A. 6. Cullen executed the Lease both as an officer of Shetron Welding and in his individual capacity as owner of Shetron Welding. See Exhibit A. 7. Upon information and belief, Cullen has been the President of Shetron Welding from January 12, 2004 to the present. 8. Naugle executed the Lease both as an officer of Shetron Welding and in his individual capacity as owner of Shetron Welding. See Exhibit A. 9. Upon information and belief, Naugle has been the Vice-President of Shetron Welding from January 12, 2004 to the present. 1MO4 2 10. Pursuant to the Lease, Shetron leased to Defendants the real property located at 85 Kutz Road, Carlisle, Pennsylvania, to be used and occupied as a place of business for the term of ten (10) years, beginning the first day of February, 2004, and ending the final day of February 2015. See Exhibit A. 11. The rental payment for the first five (5) years under the Lease is set at $8,250.00 per month, due on or before the first day of each month, with the first installment to have been paid on or before February 1, 2004. See Exhibit A 12. After the first five (5) year term, the rental payment is to be adjusted according to the Consumer Price Index with a maximum increase of 12% for the remaining five (5) year term; the rent is never to be less than $8,250.00 per month. See Exhibit A. 13. The Consumer Price Index, according to the United States Department of Labor, Bureau of Labor Statistics rose 15.9% in the five (5) years between 2004 and 2008. See Exhibit B. 14 The monthly rental payout for the last five (5) years under the Lease would increase by the maximum 12% as of February 1, 2009 to $9,240.00 per month. 15. Rent is defined in the Lease to also encompass damages for default and taxes as set forth in the lease. See Exhibit A, 12. 16. The Lease provides certain remedies to Shetron in the event that payment for rent and/or any other payment is not made in full when due and in the event Defendants violate or fail to perform or otherwise break any covenantor agreement contained in the Lease. See Exhibit A, ¶¶10,12 and 16. inyx 3 17. Under the Lease, the rent for the entire unexpired balance of the term of the Lease, other payments agreed to be paid by Defendants and costs, including five percent (5%) interest, and all rent and any other payment agreed to be paid by Defendants which may be due and payable and in arrears, are due and payable as if the whole balance of unpaid rent and other payments were payable in advance. See Exhibit A, ¶10. 18. The Lease and. the term it creates terminate and become absolutely void upon the failure of payment to pay rent and/or other payments owed and upon the violation or failure to perform any covenant in the Lease; damages are the amount equal to the amount of rent reserved for the balance of the term of the Lease. See Exhibit A, T10. 19. Shetron has not received the monthly rental payments that were due on or before November 1, 2008, December 1, 2008, January 1, 2009, or February 1, 2009. 20. By correspondence dated November 18, 2008, Shetron through counsel notified Cullen and Naugle that Shetron Welding was in default of the Lease. See correspondence dated November 18, 2008 attached as Exhibit B. 21. No response to the November 18, 2008 notice has been received from Defendants and no further payment has been made to Shetron by defendants. 12M 4 . , COUNT I - BREACH OF CONTRACT TeM T. Shetron v. Shetron Welding and Fabrication, Inc., Ray Cullen and Kirk Naugle 22. Paragraphs 1 through 21 above are incorporated herein by reference as though set forth at length. 23. Defendants and Shetron entered into the Lease on or about January 12, 2004, whereby Shetron leased the property at 85 Kutz Road, Carlisle, Pennsylvania to be used and occupied as a place of business to Defendants. See Exhibit A. 24. Cullen and Naugle executed the Lease both on behalf of Shetron Welding in their capacity as officers of the corporation and in their individual capacities as owners of Shetron Welding. 25. Plaintiff and Defendants agreed that Defendants would sign the Lease in their individual capacities to provide security of the Lease payments. 26. Shetron has not received the rental payments that were due on or before November 1 and December 1, 2008 and January 1, 2009 in the amount of $24,740.00. 27. Shetron has not received the rental payment that was due on or before February 1, 2009 in the amount of $9,240.00. 28. Defendants are in default of the provisions of the Lease and Shetron has been harmed and continues to be harmed by Defendants' failure to pay the monthly rent and/or other payments due under the Lease. 29. To date, Defendants have not cured their default of, the Lease. 12R3()4 M 30. Under the Lease, Shetron is entitled to accelerate and receive payment of rent, including monthly payments from March 1, 2009 through January 1, 2014 of $545,160.00. 31. Under the Lease, Shetron is entitled to payment of other charges, payouts, taxes, costs and expenses, including but not limited to, five percent (5%) commission chargeable against such sum owed. WHEREFORE, Plaintiff, Terry J. Shetron, respectfully requests that this Honorable Court enter judgment in his favor and against Defendants in an amount in excess of $50,000.00 together with interest, costs, attorney fees and any other relief that this Court deems to be appropriate. Dated:-ak /,nq 12M Respectfully submitted, LATSHA DAVIS YOHE & MCKENNA, P.C. By ( ?L Glenn R. Davis Attorney I. D. No. 31040 Andrea E. Dean Attorney I. D. No. 86301 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 (717) 620-2424 Attorneys for Plaintiff, Terry J. Shetron 6 VERIFICATION The undersigned hereby verifies that the statements of fact in the foregoing are true a: a. correct to the best of nay knowledge, _,-formation and belief, I understand that any false statements therein: are subject to the YenaltiEs, contained in 19 Pa. C. S. 5 4904, relating to unsworn falsification to authorities. D ?- ated: ._._.? Terry J Shetron EXHIBIT B COMMERCIAL PRQ.PERTYLEASE ACREEmENT THIS AGREEMENT, dated this 12'h day of January, 2004, by and between Shetron Welding and Fabrication, Inc. (hereinafter called Lessee), and Terry J. Shetron (hereinafter called Lessor). Lessor does hereby demise and let unto Lessee all that certain real property at 85 Kutz Road, Carlisle, Cumberland County, Pennsylvania, to be used and occupied as the place of business for Lessee and for no other purpose, for the term of ten (10) years, beginning the 1' day. of February , 2004, and ending the final day of February 2015, for the rental payment set for the first five (5) years at Eight Thousand Two Hundred and Fifty Dollars ($8,250.00), payable in monthly installments, due on or before the 1st day of each month, with the first installment to be paid on or before the 1 st day of February, 2004. After the first five (5) year term, the rental payment shall be adjusted according to the Consumer Price Index (CPI) with a maximum increase of 12% for the remaining five (5) year term. In no event shall the rental payment be adjusted to an amount less than $8,250.00 per month. 2. Additional Rent. (a) Damages for Default. Lessee agrees to pay as rent in addition to the minimum rental for any and all sums which may become due by reason of the failure of Lessee to comply with all of the covenants of this lease and any and all damages, costs and expenses which the Lessor may suffer or incur by reason of any default of the Lessee or failure on his part to comply with the covenants of this lease, and each of them, and also any and all damages to the demised premises*'"'* caused by any act or neglect of the Lessee. (b) Taxes. Lessee further agrees to pay as rent in addition to the minimum rental all taxes assessed or imposed upon the demised premises and/or the building of which the demised premises is a part during the term of this lease, in excess of and over and above those assessed or imposed at the time of making this lease. The amount due hereunder on account of such taxes shall be apportioned for that part of the first and last calendar years covered by the term. The same shall be paid by Lessee to Lessor on or before the first day of July of each and every year. 3. Place of Payment. All rents shall be payable without prior notice or demand- at the office of Lessor at 1505 Walnut Bottom Road, Newville, Pennsylvania 17241, or at such other place as Lessor may from time to time designate by notice in writing. 4. Affirmative Covenants of Lessee. Lessee covenants and agrees that he will perform the following without demand: (a) Payment of bent. Pay the rent and all other charges on the days and times and at the place that they are made payable, without fail, and if Lessor shall at any time or times accept the rent or rent charges after they shall have become due and payable, such acceptance shall not excuse delay upon subsequent occasions, or constitute or be construed as a waiver of any of Lessor's rights, Lessee agrees that any charge or payment agreed to be treated or collected as rent and/or any other charges or taxes, expenses, or costs to be paid by the Lessee may be proceeded i for and recovered by the Lessor by distraint or other process in the same manner as rent due and in arrears. (b) Fire Insurance. Lessee further agrees to maintain and pay all fire insurance premiums upon the demised premises and/or the building of which the demised premises is a part during the entire term of this Agreement. , (c) Liability Insurance, Lessee agrees to maintain and pay all liability insurance premiums for the demised premises during the entire term of this Agreement. (d) Miscellaneous Insurance. Lessee agrees to maintain and pay all insurance premiums necessary as a result of the type of business activity and trade being conducted in or on the demised property during the entire term of this Agreement. (e) Cleaning, Repairing, etc. Keep the demised premises clean and free from all ashes, dirt and other refuse matter, replace all glass windows, doors, etc., broken; keep all waste and drain pipes open; repair all damage to plumbing and to the premises in general; keep the same in good order and repair as they now are, reasonable wear and tear and damage by accidental fire or other casualty not occurring through negligence of Lessee or those employed by or acting for Lessee alone excepted. Lessee agrees to be responsible for all repairs not classified and defined as "major repairs" in paragraph 8(f). The Lessee agrees to surrender the demised premises in the same condition in which Lessee has agreed to keep the same during the continuance of this lease. M. Requirements of Public Authorities. Comply with any requirements of any of the constituted public authorities, and with the terms of any state or federal statute or local ordinance i or regulation applicable to Lessee or his use of the demised premises, and indemnify Lessor from penalties, fines, costs or damages resulting from failure so to do. (g) Fire. Use every reasonable precaution against fire. (h) Rules and Regulations. Comply with rules and regulations of Lessor promulgated as provided in this Agreement. , (i) Surrender of Possession Peaceably deliver up and surrender possession of the `f demised premises to the Lessor at the expiration or sooner termination of this lease, promptly delivering to Lessor at its office all keys for the dernised premises. 0) Notice of Fire, etc. Give to Lessor prompt written notice of any accident, fire, or damage occurring on or to the demised premises. (k) Condition of Pavement. Lessee shall be responsible for the condition of the pavement, curb, cellar doors, awnings and other erections on the pavement during the term of this lease; shall keep the pavement free from snow and ice, and shall be, and hereby agrees that Lessee is solely liable for any accidents, due or alleged to be due to their defective condition, or to any accumulations of snow and ice. (1) Environmental Responsibility. Lessee shall exercise reasonable environmental £_J responsibility and agrees to be held liable for all liability and costs involved for environmental hazards created through the failure of the Corporation or a Corporation employee to exercise reasonable environmental responsibility., . As part of the Purchase Agreement a Phase I Environmental Study is to be completed to ensure that Lessor is not responsible for any environmental hazards or contamination to the demised premises prior to the date of the Purchase Agreement. 5. Negative Covenants of Lessee. Lessee covenants and agrees that he will do none of the following things without the consent in writing of Lessor: (a) Use of Premises. Occupy the demised premises in any other manner or for any other purpose than as above set forth. (b) Assignment and Subletting. Assign, mortgage or pledge this lease or underlet or sublease the demised premises, or any part of it, or permit any other person, firm or corporation to occupy the demised premises, or any part of it; nor shall any assignee or sublessee assign, mortgage or pledge this lease or such sublease, without an additional written consent by the Lessor, and without consent no assignment, mortgage or pledge shall be valid. If the Lessee becomes embarrassed or insolvent, or makes an assignment for the benefit of creditors, or if a petition in bankruptcy is filed by or against the Lessee or a bill in equity or other proceeding for the appointment of a receiver for the Lessee is filed, or if the real or personal property of the Lessee shall be sold or levied upon by any sheriff, marshal or constable, the same shall be a violation of.-this covenant :•. - • : • - (c) Alterations, Improvements. Make any alterations, improvements, or additions to the demised premises without Lessor's prior written consent. All alterations, improvements, additions or fixtures, whether installed before or after the execution of this lease, shall remain upon the premises at the expiration or sooner determination of this lease and become the property of Lessor, unless Lessor shall, prior to the determination of this lease, have given written notice to Lessee to remove such alterations, improvements and additions and restore the premises to the same good order and condition in which they now are. Should Lessee fail to do so, Lessor may do so, collecting, at Lessor's option, the cost and expense from Lessee as additional rent. (d) Fire Insurance. Do or allow to be done, any act, matter or thing objectionable to the fire insurance companies so that the fire insurance or any other insurance now in force or here- after to be placed on the demised premises, or any part of it, or on the building of which the demised premises may be a part, shall become void or suspended, or whereby the same shall be rated as a more hazardous risk than at the date of execution of this lease. In case of a breach of this covenant (in addition to all other remedies given to Lessor in case of the breach of any of the conditions or covenants of this lease) Lessee agrees to pay to Lessor as additional rent any and all increase or increases of premiums on insurance carried by Lessor on the demised premises, or any part of it, or on the building of which the demised premises may be a part, caused in any way by the occupancy of Lessee. (e) Removal of Goods. Remove, attempt to remove or manifest an intention to remove 5. f Lessee's goods or property from :or out of the demised premises otherwise than in the ordinary and usual course of business, without having first paid and satisfied Lessor for all rent which may becdmo due during•the: entire term of this .lease. (f) Vacate Premises. Vacate or desert the.premises during the term of this lease, or permit the same to be empty and unoccupied. 6. Inspection of Premises. Lessor shall at all reasonable times, by itself or its duly authorized agents, have the right to go upon and inspect the demised premises and every part of it, and/or at its option to make repairs, alterations and additions to the-dernised premises. No alterations or additions shall be made by Lessor without first consulting Lessee. 7. Responsibility of Lessee. Lessee agrees to be responsible for and to relieve and hereby relieves the Lessor from all liability by reason of any injury or damage to any person or property in the demised premises, whether belonging to the Lessee or any other person, caused by any fire, breakage or leakage in any part or portion of the demised premises, or any part or portion of the building of which the demised premises is a part, or from water, rain or snow that may leak into, issue or flow from any part of the said premises, or of the building of which the demised premises is a part, from the drains, pipes, or plumbing work of the saute, or from any place or quarter, whether such breakage, leakage, injury or damage be caused by or result from the negligence of Lessor or its servants or agents or any person or person. Lessee also agrees to be responsible for and to relieve and hereby relieves Lessor from all liability by reason of any -=-damage or injury to any person or thing which may arise from or be due to the use, rMsuse or- -- abuse of all or any of the elevators, hatches, openings, stairways, hallways of any kind which may exist or hereafter be erected or constructed on the premises, or from any kind of injury which may be caused on the premises or of which the demised premises is a part, whether such damage, injury, use, misuse or abuse be caused by or result from the negligence of Lessor, its servants or agents or any other person or persons. 8. Responsibility of Lessor. (a) Damage for Interruption of Use. Lessor shall not be liable for any damage, compensation or claim by reason of inconvenience or annoyance arising from the necessity of repairing any portion of the building, the interruption in the use of the premises, or the termination of this lease by reason of the destruction of the premises. (b) Representation of Condition of Premises. The Lessor has let the demised premises in their present condition and without any representations on the part of the Lessor, its officers, em- ployees, servants and/or agents. It is understood and agreed that Lessor is under no duty to make repairs or alterations at the time of letting or at any time thereafter. (c) Zoning. It is understood and agreed that the zoning classification for said property is Industrial. Lessor does not warrant or undertake that the classification will remain Industrial. Should the zoning classification be changed due to circumstances outside the control of the Lessor and Lessee, Lessee agrees that this lease shall not terminate without Lessor's consent, and ? the Lessee shall use the premises only in a manner pennitted under such zoning ordinance or C .y regulatign.. Lessee agrees to incur all expense involved in contesting any and all proposed zoning changes. (d) Water. Lessor agrees to pay all amounts necessary to provide and maintain well water service for *e demised premises. If Lessee has a need for an increased water supply due to trade activity being conducted by Lessee, Lessee agrees to pay all ,amounts necessary to create an increased water supply. .(e) Sewer. Lessor further agrees to pay all amounts necessary to provide and maintain a non-public septic system for the disposal of all sewage created by the demised premises. This excludes payment for repairs to the septic system due to improper use or negligence by Lessee and its agents. (f) Major Repairs. Major repairs are defined as repairs that are in excess of Five Thousand Dollars ($5,000.00). Lessor agrees to be responsible for making and paying for all major repairs that are not due to the negligence or fault of Corporation or an employee or officer of Corporation. 9. Miscellaneous Agreements and Conditions. (a) Effect of Repairs on Rental. No contract entered into or that may be subsequently entered into by Lessor with Lessee, relative to any "alterations, additions, improvements or re airs, .uor,4he. failure. 9f1essq %..make such aherations, additions,-improvementg or repairs as required by -any such contract, nor the making by Lessor or its agents or contractors of such alter- ations, additions, improvements or repairs shall in any way affect the payment of the rent or other charges at the time specified in this lease. (b) Waiver of Custom. It is hereby covenanted and agreed that notwithstanding any law, ? usage or custom, Lessor shall have the right at all times to enforce the covenants and provisions of this lease in strict accordance with its terms, notwithstanding any conduct or custom on the part of the Lessor in refraining from so doing at any time or times; and, farther, that the failure of Lessor ai anytime or times to enforce its rights under these covenants and provisions strictly in accordance with the same shall not be construed as having created a custom in any way or manner contrary to the specific terms, provisions and covenants of this lease or as having in any way or manner modified the same. (c) Conduct of Lessee. This lease is granted upon the express condition that Lessee and/or the occupants of the premises herein leased, shall not conduct themselves in a manner which the Lessor in its sole opinion may deem improper or objectionable, and that if at any time during the term of this lease or any extension or continuation, Lessee or any occupier of the premises shall have conducted himself, herself or themselves in a manner which Lessor in its sole opinion deems improper or objectionable, Lessee shall be taken to have broken the covenants and conditions of this lease, and Lessor will be entitled to all the rights and remedies granted and reserved in this Agreement, for the Lessee's failure to observe any of the covenants and conditions of this lease. (d) Failure of Lessee to Repair. In the event of the failure of Lessee promptly to perform the covenants of Section 4(b), Lessor may go upon the demised premises and perform such covenants, the costs, at the sole option of Lessor, to be charged to Lessee as additional and delinquent rent. 10. Remedies of Lessor. If the Lessee: (a) Does not pay in full when due any and all installments of rent and/or any other charge f or payment reserved, included, or agreed to be treated or collected, as rent and/or any other charge, expense, or cost agreed to be paid by the Lessee; or (b) Violates or fails to perform or otherwise breaks any covenant or agreement herein contained; or (c) Violates or fails to perform or otherwise breaks any covenant or agreement contained in the Stock Purchase Agreement and Promissory Note; or (d) Vacates the demised premises or removes or attempts to remove or manifests an intention to remove any goods or property therefrom other than in the ordinary and usual course of business without having first paid and satisfied the Lessor in full for all rent and other charges then due or that may thereafter become due until the expiration of the then current term, above mentioned; or (e) Becomes insolvent, or makes an assignment for the benefit of creditors, or if a petition in bankruptcy is filed by or against the Lessee or a bill in equity or other proceeding for the appointment of a receiver for the Lessee is filed, or if proceedings for reorganization or for composition with creditors under any state or federal law are instituted by or against Lessee, or if the real or personal property of the Lessee shall be sold or levied upon by any sheriff, marshal or constable, then and in any or either of these events, there shall be deemed to be a breach of this lease, and due to that breach and without entry or other action by Lessor; t. , (i) The rent for the entire unexpired balance of the term of this lease, as well as all other charges, payments, costs and expenses agreed to be paid by the Lessee, or at the op- tion of Lessor any part of it, and also costs andybfficer's commissions including watchman's wages and further including the five percent chargeable by Act of Assembly to the Lessor, shallsin addition to any and all installments of rent already due and payment herein reserved, included or agreed to be treated or collected as rent,. a d/? any other charge, expense or cost agreed to be paid by the Lessee which may be due and payable and in arrears, be taken to be due and payable in arrears as if by the terms and provisions. of this lease, the whole balance of unpaid rent and other charges, payments, taxes, costs and expenses were on that date payable in advance; and if this lease or any part is assigned, or if the premises or any part is sublet, Lessee hereby irrevocably / constitutes and appoints Lessor Lessee's agent to collect the rents due by such assignee or u? sublessee and apply the same to the rent due without in any way affecting Lessee's obligation to pay any unpaid balance of rent due hereunder or in the event of any of the foregoing at any time at the option of Lessor; 6 P a (ii) This lease and the term hereby created shall terminate and become absolutely' void without any right odahe part:of.the-Lessee to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; whereupon, Lessor shall be entitled to.-recover. damages for such breach in an amount equal to the amount of rent reserved for the balance of the term of this lease. 11. Further Remedies of Lessor. In the event of any default as above set forth in Section 10, the Lessor, or anyone acting on Lessor's behalf, at Lessor's option: (a) may without notice or demand enter the demised premises, breaking open locked doors if necessary to effect entrance, without liability to action for prosecution or damages for such entry or for its manner, for the purpose of distraining or levying and for any other purposes, and take possession of and sell all goods and chattels at auction, on three days' notice served in person on the Lessee, or left on the premises, and pay the Lessor out of the proceeds, and even if the rent is not due and unpaid, should the Lessee at any time remove or attempt to remove goods and chattels from the premises without leaving enough thereon to-meet the next periodical payment, Lessee authorizes the Lessor to follow for a period of ninety days after such removal, take possession of and sell at auction, upon like notice, sufficient of such goods to meet the proportion of rent accrued at the time of such removal; and the Lessee hereby releases and discharges the Lessor, and his agents from all claims, actions, suits, damages and penalties, for.or by reason or on account of any entry, distraint, levy, appraisement or sale; and/or (b) may enter the premises, and without demand proceed by distress and sale of the goods there found to levy the rent and/or other charges payable as rent, and all costs and officers' commissions, included watchmen's wages and sums chargeable to Lessor, and further including a sum equal to five percent (5%) of the amount of the levy as commissions to the constable or other person making the levy, shall be paid by the Lessee, and in such case all costs, officers' commission and other charges shall immediately attach and become part of the claim of Lessor for rent, and any tender of rent without the costs, commission and charges made after the issue of a warrant of distress shall not be sufficient to satisfy the claim of1he Lessor. Lessee hereby expressly waives in favor of Lessor the benefit of all laws now made or which may hereafter be made regarding any limitation on the goods upon which, or the time within which, distress is to be made after removal of goods, and further relieves the Lessor of the obligations of proving or identifying such goods, it being the purpose and intent of this provision that all goods of Lessee, whether upon the demised premises or not, shall be liable to distress for rent. (c) The Lessee further waives the right to issue a Writ of Replevin under the Pennsylvania Rules of Civil Procedure No. 1071 et seq. and Laws of the Commonwealth of Pennsylvania under any other law previously enacted or now in force or which may be hereafter enacted, for the recovery of any articles, household goods, furniture, etc., seized under a distress for rent or levy upon an execution for rent, damages or otherwise; all waivers mentioned above are hereby extended to apply to any such action; and/or (d) May lease the premises or any part or parts of it to such person or persons as may in Lessor's discretion seem best and the Lessee shall be liable for any loss of rent for the balance of 7 s the then current term. 12. Ejectment. When this lease shall be terminated by condition broken, either during the original teitn ofthis lease of any renewal 'or extension; and also when and as soon as the term hereby created or any extension shall have expired, it shall be lawful for any attorney as attorney for Lessee -to-f le-an agreement for -entering in any competent court art, amicable action and judgment in ejectment against Lessee and all persons claiming under Lessee for the recovery by Lessor of possession of the demised premises, for which this lease shall be his sufficient warrant, whereupon, if Lessor so desires, a writ of possession may issue, without any prior proceedings whatsoever, and provided that if for any reason after such action shall have been commenced the same shall be determined and the possession of the premises hereby demised remain in or be restored to Lessee. Lessor shall have the right upon any subsequent default or defaults, or upon the termination of this lease, to bring one or more amicable action or actions to recover possession of the said premises. 13. Affidavit of Default. In any amicable action of ejectment and/or for rent in arrears, Lessor shall first cause to be filed in such action an affidavit made by it or someone acting for it setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence, and if a true copy of this lease (and of the truth of the copy such. affidavit shall be sufficient evidence) be filed in such action, it shall not be necessary to file the original as a warrant of attorney, any rule of Court, custom or practice to the contrary. :..14:. Waivers by Lessee of Errors, Right of.Appeal, Stay Exemption, Jnguisition. Lessee expressly agrees that any judgment,. order or decree entered against it by or in any court of magistrate by virtue of the powers of attorney contained in this lease, or otherwise, shall be final, and that it will not take an appeal, certain, writ of error, exception or objection to the same, or file a motion or rule to strike off or open or to stay execution of the same, and releases to Lessor and to any and all attorneys who may appear for Lessee all errors in the proceedings, and all.. liability. Lessee expressly waives the benefits of all laws, now or hereafter in force, exempting any goods on the demised premises, or elsewhere from distraint, levy or sale in any legal proceedings taken by the Lessor to enforce any rights under the lease. Lessee further waives the right to petition for the stay of any execution on any real estate that may be levied upon to collect any amount which may become due under the terms and conditions of this lease, and does voluntarily authorize the prothonotary or clerk of court to issue a writ or writs of execution for the sale of the same. If proceedings shall be commenced by Lessor to recover possession under the Acts of Assembly, either at the end of the term or sooner termination of this lease, or for nonpayment of rent or any other reason, Lessee specifically waives the right to the three months' notice, and/or the fifteen or thirty days' notice required by the Pennsylvania Landlord and Tenant Act of 1951, as amended, and agrees that five days' notice shall be sufficient in either or any such case. 15. Right of Assignee of Lessor. The right to enter judgment against Lessee and to enforce all of the other provisions of this lease may, at the option of any assignee of this lease, be exercised by any assignee of the Lessor's right, title and interest in this lease in his, her or their own name, notwithstanding the fact that any or all assignments of the right, title and interest may not be executed and/or witnessed in accordance with the Act of Assembly of May 28, 1715, Sm. L. 94, and all supplements and amendments that have been or may hereafter be passed and (7, .Lessee hereby expressly waives the requirements of said Act of Assembly and any and all laws regulating manner and/or form in which such assignments shall be executed and witnessed. 16. Remedies Cumulative. All of the remedies herein given to Lessor and all rights and remedies given to it by law and equity shall be cumulative,and.concurrent No termination of this lease or the taking or recovering of the premises shall deprive Lessor of any of its remedies or actions against the Lessee for rent due at the time or which, under its terms, would in the future become due as if there had been no termination, or for sums due at the time or which, under its. terms, would in the future become due as if there had been no termination, nor shall the bringing of any action for rent or breach of covenant, or the resort to any other remedy herein for the recovery of rent be construed as a waiver of the right to obtain possession of the premises. 17. Termination of Lease. It is hereby mutually agreed that either party may terminate this lease at the end of its ten (10) year term by giving to the other party written notice at least ninety (90) days prior thereto, but in default of such notice, this lease shall continue upon the same terms and conditions in force immediately prior to the expiration of its term as for a further, term of one (1) year and so on, unless or until terminated by either party hereto, giving the other ninety (90) days written notice for removal previous to expiration of the then current term; PROVID$D, however, that should this lease be continued for a further period under the terms herein above-mentioned, the rental amount is subject to an increase and the lease conditions are subject to modification for each term beyond the original ten (10) year term, provided that Lessor shall have. given one hundred twenty (120) days written notice prior to the expiration of any term of its intention-to change:the-rental-amount and--conditions-of this-lease. Nothing in this _ .. _. _.:..... Agreement shall be construed as giving the Lessee the option to terminate this lease prior to the expiration of its ten (10) year term. 18. Notice. All notices required to be given by Lessor to Lessee shall be sufficiently given by leaving the same upon the demised premises, but notices given by Lessee to Lessor must be given by registered mail, and as against Lessor the only admissible evidence that notice has been given by Lessee shall be a registry return-receipt signed by Lessor or its agent. 19. Lease Contains All Agreements. It is expressly understood and agreed by and between the parties that this lease and the riders attached to it and forming a part of it set forth all the promises, agreements, conditions and understandings between Lessor or its Agent and Lessee relative to the demised premises, and that there are no promises, agreements, conditions or understandings, either oral or written, between them other than are set forth. It is further understood and agreed that, except as otherwise provided, no subsequent alteration, amendment, change or addition to this lease shall be binding upon Lessor or Lessee unless reduced to writing and signed by them. 20. Heirs and Assignees. All rights and liabilities given to, or imposed upon, the respective parties shall extend to and bind the several and respective heirs, executors, administrators, successors and assigns of the parties; and if there shall be more than one Lessee, they shall all be bound jointly and severally by the terms, covenants and agreements of this Agreement, and the word "Lessee" shall be deemed and taken to mean each and every person or party mentioned as a Lessee, be the same one or more; and if there shall be more than one ti. Lessee, any notice required or permitted by the terms of this lease may be given. by or to anyone of them, and shall have the same force and effect as if given by or to all.:No rights, however, shall inure to the benefit of any assignee of Lessee unless the assignment to such assignee has been approved by Lessor in writing. 21. Headings No Part of Lease. Any headings preceeding the text of the paragraphs and subparagraphs of this Agreement are inserted solely for convenience or reference and shall not affect its meaning, construction, or effect. IN WITNESS WHEREOF, the parties have executed the foregoing Agreement presents the day and year first above written, and intend to be legally bound. Ray Caren, Owner and Officer For Shetron Welding & Fabrication, Inc., Lessee Kirk Naugle, Owner d Officer For Shetron Welding & Fabrication, Inc., Lessee Terry Shetron, Lessor On this ? day of ?e?l urn' , 2004, before me, the undersigned officer, personally appeared Terry,/Shetron, Ray Cullen, and Kirk Naugle, known to me (or satisfactory proven) to be the person whose name is subscribed to the within Agreement and acknowledged that she executed the same for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my-h4nd and official seal. JA40N KMAAM- 4... } ),. ry Pubic Notary Public 10 ! CERTIFICATE OF SERVICE I hereby certify that on March 2, 2009, a true and correct copy of the foregoing document was served by means of Hand Delivery upon the following: Glenn R. Davis, Esquire Latsha Davis Yohe & McKenna, P.C. 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 ?._ _ r?.? ?:s r 3 ?, : ?? ?..: z _ ?' `1 - -::? ? ,a?._? ?? Y ti.? ?'q .y PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) TERRY J. SHETRON vs. SHETRON WELDING AND FABRICATION, INC. and RAY CULLEN and KIRK NAUGLE, in their official and individual capacities No. 09-661 Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.) Defendant's Preliminary Objections to Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Andrea E. Dean Glenn R. Davis 1700 Bent Creek Boulevard, Suite 140, Mechanicsburg, PA 17050 (Name and Address) (b) for defendants: Dean F. Piermattei P. 0. Box 1146, Harrisburg, PA 17108-1146 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: July 22, 2009 Signature Andrea E. Dean Print your name Plaintiff Attorney for Date: _ S 0 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. l CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Praecipe for Listing Case for Argument was served by first-class United States mail, postage prepaid, upon the following: Dean F. Piermattei, Esq. Stephanie E. DiVittore, Esq. Rhoads & Sinon, LLP P. O. Box 1146 Harrisburg, PA 17108-1146 Dated: / Sr g Andrea E. Dean 131405 CAI AL FILDEP 2604 JUN 17 Phi 12: 4 4 Dean F. Piermattei, Esquire Attorney I.D. No. 53847 Jillian M. Petrosky, Esquire Attorney I.D. No. 206510 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Defendants TERRY J. SHETRON Plaintiff v. SHETRON WELDING & FABRICATION, INC., RAY CULLEN AND KIRK NAUGLE Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW No. 09-661 ANSWER IN OPPOSITION TO PLAINTIFF'S MOTION TO DENY AND DISMISS DEFENDANTS' PRELIMINARY OBJECTIONS NOW COME Defendants Shetron Welding & Fabrication, Inc. ("Shetron Welding"), Ray Cullen ("Cullen") and Kirk Naugle ("Naugle") (collectively "Defendants") and submit this Answer in Opposition to Plaintiff's Motion to Deny and Dismiss Defendants' Preliminary Objections stating as follows: 1. Admitted. By way of further answer, the Complaint in this matter alleges Defendants breached a Commercial Property Lease Agreement ("Lease") for failing to pay rent monies alleged to be due and owing under the Lease. The Lease wa.5 between Plaintiff and Shetron Welding. The Plaintiff, however, named Cullen and Naugle, individually, as Defendants in this matter and purports to hold them liable in their individual capacities as owners of Shetron Welding. The Preliminary Objections challenge Plaintiff's attempts to Bold Cullen and Naugle individually liable as they were not named parties to the Lease, instead merely executed the same as agents for Shetron Welding. See Electron Energy Corp. v. Short, 4(18 Pa. Super. 563, 567, 748772.1 597 A.2d 175, 176-77 (1991). For further clarification, this proceeding is only one of three actions pending before the Cumberland County Court of Common Pleas between these parties. In 2006, Shetron Welding, Naugle and Cullen filed an action against Terry Shetron, Docket No. 06-3096, alleging nine counts for money damages based on Terry Shetron's actions in connection with Naugle and Cullen's purchase of Shetron Welding. Following extensive discovery, the parties conducted five days of bench trial before The Honorable J. Wesley Oler, Jr., and remaining trial dates were postponed until fall as a result of a request by Terry Shetron's counsel. Terry Shetron subsequently filed this action for money damages and purported to confess judgment for possession against Shetron Welding under the Lease in a separate action docketed at No. 09-1716. The original action will proceed with additional trial dates, and following oral argument in the confession of judgment case, the iCourt granted Shetron Welding's Petition to Open finding Shetron Welding alleged a meritorious defense so that case will proceed. 2. Admitted. 3. Admitted. 4. Admitted. By way of further response, the failure to file a Brief following Plaintiff's Praecipe to List this matter for argument was not an intentional violation of Local Rule 1028(c), but due to internal errors. Defendants learned of such error when Plaintiff's counsel forwarded the Motion to Deny and Dismiss Defendants' Preliminary Objections on Wednesday, July 15, 2009, requesting concurrence from the undersigned. Immediately upon learning of this omission, Defendants' counsel requested that Plaintiff's counsel stipulate to move the argument to September. When Plaintiff's counsel would not so stipulate, Defendants submitted correspondence requesting permission to file their Brief in Support of Preliminary -2- Objections two days later, on July 17, 2009, together with this Answer to Plaintiff's Motion. Because of the limited time for Plaintiff to respond to Defendants' Brief, Defendants request that this matter be moved to the next argument Court date to allow Plaintiff to respond to Defendants' Brief. 5. Denied as stated. Local Rule 1028(c)(6) states "[i]ssues raised, but not briefed, shall be deemed abandoned." 6. Admitted. By way of further response, Defendants respectfully request that because the error in failing to file the Brief was through no fault of the actual Defendants this Honorable Court refrain from dismissing the Preliminary Obections. If Plaintiff's Motion to Dismiss is granted, Defendants will suffer prejudice, as they will incur costs and fees in unnecessary discovery concerning issues properly resolved through preliminary objection. Further, there is no prejudice to Plaintiff if this matter is moved to the September, 2009 argument Court date allowing Plaintiff to respond to Defendants' Brief. Such action may also be prudent where, as here, the issue to be determined through preliminary objection is a dispositive issue that will have to be then raised again through summary judgment. Moving this matter to the next available argument Court date will conserve judicial resources, as well as shorten the discovery process and expedite resolution of this case. There is also no prejudice to Plaintiff based on very slight delay where, as here, the two other actions involving related matters remain pending -one in trial stage and the other only beginning discovery. 7. Admitted in part, denied in part. It is admitted that Plaintiff requests this Court deny and dismiss Defendants' Preliminary Objections. For the reasons set forth in Paragraph 6 above, however, Defendants deny such action is appropriate. -3- 8. Denied. By way of further response, however, Defendants' concur in removing this matter from the July 22, 2009 Argument List and re-listing the same for September 9, 2009, so that Plaintiff has sufficient time to respond to Defendants' Brief in Support of their Preliminary Objections. 9. Admitted. By way of further response, in addition to ruling on ejectment issues in the case docketed at No. 09-1716, the Honorable J. Wesley Oler, Jr., has conducted approximately five days of bench trial in a matter between these same parties involving related issues, No. 06-3096. 10. Admitted. WHEREFORE Defendants Kirk Naugle, Ray Cullen and Shetron Welding & Fabrication, Inc. respectfully request that this Court deny Plaintiff's Motion to Deny acid Dismiss Defendants' Preliminary Objections, remove this case from the July 22, 2009 argument list and reschedule the same for argument on the September 9, 2009 argument Court date. Respectfully submitted, BROADS & SINON LLP By: ~ ~ e ~ v~t-~f ~-c 5 ~ Dean F. Piermattei Jillian M. Petrosky One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendants -4- CERTIFICATE OF SERVICE I hereby certify that on this ~~ ~~' -flay of July, 2009, a true and correct copy of the foregoing Answer in Opposition to Plaintiff's Motion to Deny anti Dismiss Defendants' Preliminary Objections was served by means of electronic mail and United States mail, first class, postage prepaid, upon the following: Glenn R. Davis, Esquire Andrea Dean, Esquire Latsha Davis Yohe & McKenna, P.C. 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 ~~~ Cindy Santone r`( -~ -,r- r ` v i ~r 2~~~ u~~ f ~ ~'~ I~~ ~~ -t„ r r ~ ;? ~~i , i ~~ v. 1 TERRY J. SHETRON Plaintiff v. SHETRON WELDING & FABRICATION, INC., RAY CULLEN AND KIRK NAUGLE Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CNIL ACTION LAW No. 09-661 n NOTICE TO PLEAD To: Plaintiff Terry Shetron c/o Glenn R. Davis, Esquire Latsha Davis Yohe & McKenna, P.C. 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 ~~ ~ ML J N ' car , ~ E * nr~r ; -~ L L:., ~-G .-. -; ~~ _~ T_ -n t`e`t ~.- - _`? ~~~'~~t r. E': :. `^ , ~~ F -~ YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN kESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, By: BROADS & S1NON LLP J ~-~, ti ~ '~-vu; Dean F. Piermattei Attorney LD. No. 53847 Stephanie E. DiVittore Attorney I.D. No. 85906 One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendants Dean F. Piermattei, Esquire Attorney I.D. No. 53847 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 BROADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Defendants TERRY J. SHETRON Plaintiff v. SHETRON WELDING & FABRICATION, INC., RAY CULLEN AND KIRK NAUGLE Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION LAW No. 09-661 DEFENDANTS' ANSWER & NEW MATTER NOW COME Defendants Shetron Welding and Fabrication, Inc. ("Shetron Welding") and Ray Cullen and Kirk Naugle (in their official capacities),' through their attorneys, Rhoads & Sinon LLP, and file the following Answer and New Matter to the Complaint filed on behalf of Plaintiff Terry Shetron stating as follows: 1. Admitted based on information and belief. 2. Admitted. 3. Admitted. 4. Admitted. ' In the caption of the default notice filed on behalf of Plaintiff, Plaintiff continues to list Ray Cullen and Kirk Naugle as defendants in their individual capacities. By Order of Court dated September 28, 2009, however, this Court dismissed the Complaint as it relates to Defendants Cullen and Naugle in their individual capacities. As a result, this Answer and New Matter is filed on their behalf in their official capacities only. 784741.1 5. Denied as stated. It is admitted that Plaintiff and Shetron Welding entered into a Commercial Property Lease Agreement dated January 12, 2004 ("Lease"). The remaining allegations of this Paragraph are specifically denied. By way of further response, the Lease is a writing that speaks for itself and any attempt to interpret the same is specifically denied. 6. Denied as stated. It is admitted that Cullen executed the Lease in his official capacity as owner and officer of Shetron Welding. It is specifically denied that Cullen executed the Lease in his individual capacity. 7. Admitted. 8. Denied as stated. It is admitted that Naugle executed the Lease in his official capacity as owner and officer of Shetron Welding. It is specifically denied that Naugle executed the Lease in his individual capacity. 9. Admitted. 10. Admitted in part, denied in part. It is admitted that the Lease was for real property located at 85 Kutz Road, Carlisle, Pennsylvania. The remaining allegations are specifically denied, as the Lease is a writing that speaks for itself and any attempt to interpret the same is specifically denied. 11. Denied. The Lease is a writing that speaks for itself and a.ny attempt to interpret the same is specifically denied. 12. Denied. The Lease is a writing that speaks for itself and any attempt to interpret the same is specifically denied. -2- 13. Denied. The allegations of Paragraph 13 are specifically denied and proof thereof is demanded at the time of trial. 14. Denied. The allegations of Paragraph 14 are specifically denied and proof thereof is demanded at the time of trial. 15. Denied. The Lease is a writing that speaks for itself and any attempt to interpret the same is specifically denied. 16. Denied. The Lease is a writing that speaks for itself and any attempt to interpret the same is specifically denied. 17. Denied. The Lease is a writing that speaks for itself and any attempt to interpret the same is specifically denied. 18. Denied. The Lease is a writing that speaks for itself and any attempt to interpret the same is specifically denied. 19. Admitted in part, denied in part. It is admitted that Shetron Welding did not make rental payments for November, 2008, December, 2008, January, 2009 or February, 2009. It is specifically denied that said amounts are due or owing and proof thereof is demanded at time of trial. 20. Denied. It is specifically denied that Shetron Welding was in default under the terms of the Lease and proof thereof is demanded at the time of trial. 21. Admitted in part, denied in part. It is admitted that Shetron Welding has made no further rental payments to Plaintiff for the reasons stated above. It is specifically denied that said amounts are due or owing or that Plaintiff is not aware of the basis for withholding rental -3- payments, and proof thereof is demanded at the time of trial. The remaining allegations of this Paragraph are specifically denied. COUNT I -BREACH OF CONTRACT Terry J. Shetron v. Shetron Welding and Fabrication, Inc., Ray Cullen and Kirk Naugle 22. Defendants incorporate its responses to paragraphs 1 through 21 above. 23. Denied as stated. It is admitted that Plaintiff and Shetron Welding entered into the Lease. The remaining allegations of this Paragraph are specifically denied. By way of further response, the Lease is a writing that speaks for itself and any attempt to interpret the same is specifically denied. 24. Denied as stated. It is admitted that Naugle and Cullen executed the Lease in their official capacities as owners and officers of Shetron Welding. It is specifically denied that Naugle and Cullen executed the Lease in their individual capacities. 25. Denied. It is specifically denied that Defendants agreed that Cullen and Naugle would sign the Lease in their individual capacities, to provide security of the Lease payments or otherwise, and specific proof thereof is demanded at the time of trial. 26. Denied as stated. It is admitted that Shetron Welding did not make rental payments for November, 2008 through January, 2009. It is specifically denied that said amounts are due and owing and proof thereof is demanded at the time of trial. 27. Denied as stated. It is admitted that Shetron Welding did not make the rental payment for February, 2009. It is specifically denied that said amounts are due and owing and proof thereof is demanded at the time of trial. -4- 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. 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. 30. Denied. The Lease is a writing that speaks for itself and any attempt to interpret the same is specifically denied. Further, it is specifically denied that rent from March, 2009 through January, 2014 is due and owing and specific proof thereof is de;manded at the time of trial. 31. Denied. The Lease is a writing that speaks for itself and any attempt to interpret the same is specifically denied. WHEREFORE Defendants Shetron Welding and Fabrication, Inc.., Ray Cullen and Kirk Naugle, in their official capacities as owners and officers of Shetron Welding, specifically request that this Court grant judgment in their favor and against the Plaintiff, together with interest and costs as allowed by law. NEW MATTER 1. 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 Defendants. 2. There is no causal connection between the damages sought by Plaintiff and any conduct or omission by Defendants. -S- 3. Plaintiff s Complaint fails to state a cause of action upon which any relief may be granted. 4. Plaintiff s claims are barred by waiver. 5. Plaintiff s claims are barred by estoppel. 6. Plaintiff s claims are barred by payment or offset. 7. Plaintiff s claims are barred by the statute of frauds. 8. Plaintiff s claims are barred by laches. 9. Plaintiff's claims are barred by the statute of limitations. 10. 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. 11. To the extent Plaintiff is entitled to recover from Defendants, which Defendants expressly deny, Plaintiff is not entitled to interest, costs or attorneys' fees as set forth in Plaintiff's Complaint. -6- WHEREFORE Defendants Shetron Welding and Fabrication, Inc., Ray Cullen and Kirk Naugle, in their official capacities as owners and officers of Shetron Welding, specifically request that this Court grant judgment in their favor and against the Plaintiff, together with interest and costs as allowed by law. By: Respectfully submitted, BROADS & S1NON LLP Dean F. Piermattei Attorney LD. No. 53847 Stephanie E. DiVittore Attorney LD. No. 85906 One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendants -7- CERTIFICATE OF SERVICE I hereby certify that on this ~ day of June, 2010, a true and correct copy of the foregoing Defendants' Answer & New Matter was served by means of United States mail, first class, postage prepaid, upon the following: Glenn R. Davis, Esquire Latsha Davis Yohe & McKenna, P.C. 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 Dara Whistler -"!. Fi~_~=~,- _ ; _-_- Glenn R. Davis Attorney I. D. No. 31040 Latsha Davis Yohe & McKenna, P.C. 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 (717) 620-2424 20f~ ~;~~ ~~ ,,t i~.• ~Y l~1(7 tl ~J'Yl (D ~ ~ (~ ,, t.,~~.~ _ _ :~Y. F',- _ . Attorneys for Plaintiff, Terry J. Shetron IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TERRY J. SHETRON, Plaintiff v. No. 09-661 CIVIL TERM SHETRON WELDING AND CIVIL ACTION -LAW FABRICATION, INC. and RAY CULLEN and KIRK NAUGLE, in their official and individual capacities . Defendants PLAINTIFF'S ANSWER TO NEW MATTER AND NOW, COMES, Plaintiff, Terry J. Shetron, by and through his attorneys, Latsha Davis Yohe & McKenna, P.C., and files this Answer to New Matter and in support thereof states as follows: 1. The averments of this paragraph constitute a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, the averments are denied. 2. The averments of this paragraph constitute a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, the averments are denied. 138885 3. The averments of this paragraph constitute a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, the averments are denied. 4. The averments of this paragraph constitute a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, the averments are denied. 5. The averments of this paragraph constitute a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, the averments are denied. 6. The averments of this paragraph constitute a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, the averments are denied. 7. The averments of this paragraph constitute a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, the averments are denied. 8. The averments of this paragraph constitute a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, the averments are denied. 9. The averments of this paragraph constitute a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, the averments are denied. 138885 2 10. The averments of this paragraph constitute a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, the averments are denied. 11. The averments of this paragraph constitute a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, the averments are denied. WHEREFORE, Plaintiff, Terry J. Shetron, requests that this Honorable Court grant judgment in his favor and against Defendants together with interest and costs as allowed by law. Respectfully submitted, LATSHA DAVIS YORE & MCKENNA, P.C. By ~~.~o Glenn R. Davis Attorney I. D. No. 31040 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 (717) 620-2424 Attorneys for Plaintiff, Terry J. Shetron issss5 3 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Plaintiff's Answer to New Matter was served by first-class United States mail, postage prepaid, upon the following: Dean F. Piermattei, Esq. Rhoads & Sinon, LLP One South Market Square,12th Floor P. O. Box 1146 Harrisburg, PA 17108-1146 Dated ~, 2~ O Helen Samuels Legal Secretary 138885 202 NO`ll - 1 Ali fl: ;5'2 1'�'YE�cf�L AND COUNT' Glenn R. Davis Attorney I.D. No.31040 gdavis @ldylaw.com Andrew P. Dollman Attorney I.D. No. 209466 adollman @ldylaw.com Latsha Davis&McKenna,P.C. 1700 Bent Creek Boulevard,Suite 140 Mechanicsburg,PA 17050 (717)620-2424 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA • TERRY J. SHETRON, • Plaintiff • v. • No. 09-661 CIVIL TERM • SHETRON WELDING AND • CIVIL ACTION - LAW FABRICATION, INC. and RAY CULLEN and : KIRK NAUGLE, in their official and • individual capacities • Defendants PETITION TO REINSTATE UNDER RULE 230.2(d) NOW COMES, Plaintiff, Terry J. Shetron, Petitioner herein, by and through his attorneys, Latsha Davis & McKenna, P.C., and states as follows: 1. Petitioner, Terry Shetron, (hereinafter "Shetron") filed a Complaint on or about February 9, 2009, in which he sought to prosecute a case for breach of a lease 330722v1 contract against Shetron Welding and Fabrication, Inc. (hereinafter "SWFI"), Ray Cullen, and Kirk Naugle. 2. Defendants stopped making monthly rental payments of approximately $9,240 on or about November 1, 2008, and have not made payment since that time. 3. Shetron was entitled to accellerate and receive payments of rent, including monthly payments, through January 1, 2014, in the amount of$545,160. 4. Defendants filed Preliminary Objections on or about March 2, 2009, with this matter being listed for argument on July 22, 2009, and re-listed again on September 9, 2009. 5. This matter was involved with a companion matter seeking ejectment listed at No. 09-1716 before the Honorable J. Wesley Oler, Jr. 6. By Order dated September 28, 2009, Judge Oler sustained the preliminary objections and dimissed the individual defendants, Ray Cullen and Kirk Naugle. 7. A 10-day Notice of Default was issued on or about June 18, 2010. 8. Defendant SWFI filed an Answer with New Matter on June 28, 2010, to which Shetron filed an Answer to the New Matter on August 4, 2010. 9. A Notice of Proposed Termination of Court Case, dated August 30, 2013, was issued in this matter with a response date of October 29, 2013. 10. On October 29, 2013, Petitioner's attorney's office attempted to file the attached Statement of Intention to Proceed under the misunderstanding that it could be accomplished online. 2 11. Petitioner's attorney's office then faxed the Statement of Intention to Proceed to the David D. Buell, Prothonotary of Cumberland County, which was received at 4:42 p.m. 12. Petitioner has been advised that the Prothonotary will not accept the facsimile filing of October 29, and that the instant Petition needs to be filed to reinstate this matter. 13. Pursuant to Pa.R.Civ.P. 230.2(d)(2), this Petition is being filed within thirty (30) days on the anticipated entry of an Order of Termination. WHEREFORE, Plaintiff, Petitioner Terry J. Shetron, requests this Honorable Court issue an Order in his favor reinstating this matter. Respectfully submitted, LATSHA, DAVIS & McKENNA, P.C. Date: October 30, 2013 C -12-WO Glenn R. Davis Attorney I.D. No. 31040 Daniel R. Jameson Attorney I.D. No. 307543 1700 Bent Creek Blvd., Suite 140 Mechanicsburg, PA 17050 (717) 620-2424 Attorneys for Plaintiff, Terry J. Shetron 330722v1 3 CERTIFICATE OF SERVICE I, Glenn R. Davis, hereby certify that this date I have served a true and correct copy of the foregoing, Petition to Reinstate Under Rule 230.2(d), upon the following counsel of record via USPS First-Class Mail,postage prepaid: Dean F. Piermattei, Esquire Rhoads & Sinon, LLP One South. Market Square, 12th Floor P. O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Defendants GiuLA-72.—aziO Glenn R. Davis Dated: October 30, 2013 330722v1 4 ti IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TERRY J. SHETRON, Plaintiff • v. • No. 09-661 CIVIL TERM mom. 2. SHETRON WELDING AND • CIVIL ACTION - LAW FABRICATION, INC. and RAY CULLEN and : -< ' ` ' KIRK NAUGLE, in their official and r- individual capacities • zezt Defendants ORDER OF COURT AND NOW, this g day of /Jo v&-,1,4..-v&-,1,4..- , 2013, upon consideration of Plaintiff's Petition to Reinstate Under Rule 230.2(d), it is hereby ORDERED that this matter should be reinstated. BY THE COURT: 'LL J Distribution: ✓Glenn R.Davis;Latsha Davis &McKenna,P.C.;1700 Bent reek Boulevard,Suite 140;Mechanicsburg, PA 17050;gdavis©ldvlaw.com; (717) 620-2424 ✓ Dean F.Piermattei,Esquire;Rhoads&Sinon,LLP;One South Market Square,12th Floor;P.O. Box 1146; Harrisburg,PA 17108-1146;dpiermattei@rhoads-sinon.com;(717)233-5731 COO es ov,,`/ed ►� � �i3