Loading...
HomeMy WebLinkAbout09-2724IN THE COURT OF COMMON PLEAS CUMBERLANDCOUNTY, PENNSYLVANIA No. bq - d7,14 l?tV , j Civil Action - ? Medical Professional Liability Action COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, 1015 Mumma Drive, 2nd Floor Wormleysburg, PA 17043 and ROTHMAN SCHUBERT AND REED REALTORS LLC d/b/a RSR REALTORS, 3 Lemoyne Drive, Suite 100 Lemoyne, PA 17043 Plaintiffs Plaintiff(s) & Address(es) Defendant(s) & Address(es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. Writ of Summons shall be issued and forwarded toll Attorney ? Sheriff Signature of Attorney Supreme Court ID No. 89277V U Date: q / 2g/ y9 Name/Address/Telephone No. of Attorney: Jeffrey C. Clark, Esq., Wix, Wenger & Weidner, 508 North Second Street, Harrisburg, PA 17101 TO THE ABOVE NAMED DEFENDANT: WRIT OF SUMMONS YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMENCED AN ACTION AGAINST YOU. rothonotary Date: Al30 O? by Deputy ? Check here if reverse is issued for additional information. Prothon. - 55 CAPITAL PLAZA ASSOCIATES, 4464 Spring Hill Drive Schnecksville, PA 18078 Defendant VS. CA ) -rj 20'0!3 A ; 1U Jw.?14 .. ... #78.50 Po AT y Jejfr" C. O ark M* 1701 of a.aHsoo WIX, WENGER & WEIDNER Jeffrey C. Clark, I.D. # 89277 jclark@wwwpalaw.com 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 COMMERCIAL-INDUSTRIAL REALTY IN THE COURT OF COMMON PLEAS, COMPANY d/b/a NAI CIR, and :CUMBERLAND COUNTY, PEN SYLVANIA ROTHMAN SCHUBERT AND REED REALTORS LLC d/b/a RSR REALTORS, Plaintiffs I~ v• N0.09-2724 CAPITAL PLAZA ASSOCIATES, Defendant :CIVIL ACTION -LAW IPE TO RE-ISSUE PRAECIPE FOR WRIT OF To: Prothonotary Kindly re-issue the attached Praecipe for Writ of Summons in order f r the Sheriff to serve the Writ of Summons to the Defendant at Defendant's address of 4 64 Spring Hill Drive, Schnecksville, Lehigh County, Pennsylvania 18078. Respectfully bmitted, II JJ~ WIX, W Rt& WEIDNEF~ l Date: 6l ~/O~j By: // Jeffr rk, I.D. #89 77 508 and Street Post a Box 845 Harrisburg, PA 17108-08 5 (717) 234-4182 Attorneys for Plaintiff Lr ~3 , ~ ~:. 2009 ,~~t~ ~ ~ P~~ Z. ~, ~ ~1~Jr ~~~I.l/,"~Vtl~~tt~ t O . oo P A iAT-ty per' aa~t.a~ 2 COMMERCIAL-INDUSTRIAL REALTY : IN THE COURT OF COMMON PLEAS, COMPANY d/b/a NAI CIR, and :CUMBERLAND COUNTY, PENNSYLVANIA ROTHMAN SCHUBERT AND REED REALTORS LLC d/b/a RSR REALTORS, ~ ~ Plaintiff ~ p -Tl ~ ~ v. .~" f* NO. 09-2724 `y `~~ ` ~ `~'~ r~` ~_ w ~ CAPITAL PLAZA ASSOCIATES, ~ n Defendant :CIVIL ACTION -LAW ~~- ~ ~ ~i ~~ '~ ~ w NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR 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. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 (717) 249-3166 COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, and ROTHMAN SCHUBERT AND REED REALTORS LLC d/b/a RSR REALTORS, . Plaintiff v. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-2724 CAPITAL PLAZA ASSOCIATES, Defendant CIVIL ACTION -LAW COMPLAINT AND NOW, come Plaintiffs, Commercial-Industrial Realty Company d/b/a NAI CIR ("NAI CIR"), by and through its attorneys, Wix, Wenger & Weidner, and Rothman Schubert and Reed Realtors LLC d/b/a RSR Realtors ("RSR"), by and through its attorneys, Knupp Law Offices, and file this Complaint, stating as follows: Facts Applicable to All Counts 1. 2. 3 4. Plaintiff NAI CIR is a Pennsylvania corporation whose business address is 1015 Mumma Road, 2"d Floor, Wormleysburg, PA 17043. Plaintiff RSR is a Pennsylvania limited liability company whose business address is 3 Lemoyne Drive, Suite 100, Lemoyne, PA 17043. Defendant Capital Plaza Associates ("Capital Plaza"), is believed and therefore averred, to be a Pennsylvania limited partnership whose registered office address is 4464 Spring Hill Drive, Schnecksville, PA 18078. This action is not subject to compulsory arbitration because it seeks equitable relief. 2 5. Jurisdiction and venue are proper in this Court because the real property at issue in this case is located in Cumberland County. 6. On or about March 22, 2002, NAI CIR entered into a Listing Contract with Barry Pagliaro ("NAI CIR Listing Contract") whereby, in consideration of NAI CIR locating a lessee for commercial space at 3401 Hartzdale Drive, Camp Hill, PA, Mr. Pagliaro agreed to pay a lease commission of eight (8%) percent of the total aggregate gross rent and six (6%) percent for any renewal option term. A true and correct copy of the NAI CIR Listing Contract is attached hereto as Exhibit "A" and is incorporated herein by reference as if fully set forth. 7. The term of the NAI CIR Listing Contract was twelve months from the date of signing, or in other words, from March 22, 2002, through March 21, 2003. 8. The NAI CIR Listing Contract provides that it is binding upon Mr. Pagliaro's successors and assigns. 9. On or about September 12, 2002, the commercial space subject to the NAI CIR Listing Contract was leased to Global Video, Inc., pursuant to an Addendum to Lease Agreement ("Addendum"), as expansion space to its already existing store. A copy of the Addendum is attached hereto as Exhibit "B," and incorporated herein by reference as though set forth in full. 10. The Addendum contained the following terms, without limitation: a. Global Video agreed to lease the additional 3,600 square feet at the rate of $3,099.54 per month plus CAM charges of $555.00; 3 b. The amount of total rent would increase each year by five (5%) percent; c. At the end of the original lease term, Global Video would have the option to extend the term for twenty years. 11. The Addendum was executed during the term of the NAI CIR Listing Contract. 12. RSR was the listing agent for the original lease with Global Video pursuant to a listing contract executed by RSR and Mr. Pagliaro on April 14, 1997 ("RSR Listing Contract"). A copy of the RSR Listing Contract is attached hereto as Exhibit "C" and incorporated herein by reference as though set forth in full. 13. The RSR Listing Contract included, without limitation, the following applicable provisions: a. That "[t]he fee for the collection of rents will continue for the entire term of any tenancy created under the terms of this agency including the renewal extensions or any additional lease which may result therefrom"; b. That the agency created by the RSR Listing Contract "shall inure to the benefit of and be binding upon the parties hereto, and their respective personal representatives, guardians, assigns and successors." 14. Upon execution of the Addendum to lease the commercial space subject to the NAI CIR Listing Contract, NAI CIR became entitled to a commission. 15. By virtue of its listing contract for the original space leased to Global Video, RSR was entitled to a share of the commission as co-broker. 4 16. From the inception of the Addendum, NAI CIR sent to Mr. Pagliaro invoices for the commissions owed. 17. Mr. Pagliaro dutifully paid each invoice through May, 2004. 18. On or around July 7, 2004, Mr. Pagliaro entered into an agreement to sell the Property to Defendant Capital Plaza. 19. The Sales Agreement contained a clause reading as follows: "sale subject to existing leases and commissions." 20. By virtue of this language, Capital Plaza took assignment of both the benefit of the commercial leases of the Property, and the liability and obligation to pay commissions under existing listing contracts. 21. Accordingly, Capital Plaza is responsible and liable for the commission owed for the additional commercial space leased to Global Video. 22. NAI CIR is entitled to a commission equal to eight (8%) percent of the rent payable pursuant to the Addendum, subject to RSR's co-broker share. 23. NAI CIR is entitled to a commission equal to six (6%) of the rent payable for any renewals, subject to RSR's co-broker share. 24. Upon information and belief, the lease with Global Video has been renewed pursuant to the option in the Addendum. 5 Count I -Declaratory Judgment 25. Paragraphs 1 through 24 hereof are incorporated herein by reference as if fully set forth. 26. The NAI CIR Listing Contract and RSR Listing Contract constitute valid and binding contracts. 27. NAI CIR and RSR have performed all contractual obligations required of them. 28. Capital Plaza has refused to pay the commissions owing under the Listing Contracts, and has indicated that it will not pay the invoices sent to it by NAI CIR. 29. NAI CIR and RSR seek a declaratory judgment that the Listing Contracts are binding and valid contracts pursuant to which Capital Plaza owes a commission for each and every year that the lease with Global Video, as amended by the Addendum, remains in effect. WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter judgment in their favor and against Defendant declaring that the Listing Contracts are binding and valid contracts pursuant to which Defendants owes a commission to NAI CIR and RSR equal to (6%) percent of the gross annual rents for the remaining term of the lease with Global Video, Inc., as amended by the Addendum, and granting such other relief as this Court deems just and appropriate. 6 Count II -Breach of Contract 30. Paragraphs 1 through 29 hereof are incorporated herein by reference as if fully set forth. 31. The NAI CIR Listing Contract and RSR Listing Contract constitute valid and binding contracts between NAI CIR and Capital Plaza and RSR and Capital Plaza. 32. NAI CIR and RSR have performed all contractual obligations required of them. 33. Capital Plaza has failed to pay the commissions due and owing to NAI CIR and RSR pursuant to the Listing Contracts. 34. Capital Plaza's failure to pay the commissions due constitutes a breach of its contractual obligation. 35. Capital Plaza is liable to NAI CIR and RSR for the commissions due and owing on the rent paid to Capital Plaza pursuant to the Listing Contracts. 36. The amount owed as of May 1, 2009, is $16,037.33. 37. On May 1, 2010, an additional commission of $3,296.16 will be due and owing. 38. Pursuant to Paragraph 6 of the NAI CIR Listing Contract, NAI CIR is entitled to all costs and reasonable attorneys' fees in connection with this action. 39. In accordance with Pennsylvania law, NAI CIR and RSR are entitled to pre- judgment interest on the amount of their claim. WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter judgment in their favor and against Defendant for the amount of $19,333.49, plus pre- judgment and post judgment interest at the rate of six percent (6%) per annum from 7 May 15, 2005, costs and attorney's fees, and such other relief as the Court deems just and appropriate. Date: (~2~/i o Date: ~_ ,~~~ ~D Respectfully submitted, WIX, WENGER & WEIDNER By: Jeff Clark, I.D. # 89277 De eidner, I.D. # 06363 508 Nort Second Street Post Office Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Commercial-Industrial Realty Company KNUPP LAW OFFICES, LLC By: Robert L. Knupp, . 407 North Front Street P.O. Box 630 Harrisburg, PA 17108-0630 Attorneys for Rothman Schubert and Reed Realtors LLC 8 VERIFICATION f, Robin Zellers, Chief Operations Officer of Commercial-Industrial Realty Company, Plaintiff in the foregoing Complaint, have read the foregoing Complaint and hereby affirm and verify that it is true and correct to the best of my personal knowledge, information and belief. 1 verify that ail of the statements made in the foregoing Complaint are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Commercial-Industrial Realty Company, d/b/a NAI CIR Date: ~ s ~ 2 2 _ + c~. gy; Robin Zellers, COO VERIFICATION I, William F. Rothman, President of Rothman Schubert and Reed Realtors LLC dJb/a RSR Realtors, Plaintiff in the foregoing Complaint, have read the foregoing Complaint and hereby affirm and verify that it is true and correct to the best of my personal knowledge, information and belief. I verify that all of the statements made in the foregoing Complaint are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Rothman Schubert and Reed Realtors LLC d/b/a RSR Realtors -.~, Date: By: ~= ` ~' ~" ~ CJ ' i o man, President • LLSTING DESCRIPTION SHEET [ COI`s - CL-COMMERCIAL SPACE AVAILABLE FC" ',EASE p j L ~~~ on h!G ., ~ i ° U" ~tL -RETAIL LEASE AVAILABLE FOR LEA INDICATE RL OR CL C ~-~ ^ Check if you DO NOT want this fcle on C.I.R.'s Web page LOCATED _ Street Address: ~ ~ ~ ~ t'~'Z~j,`e , ~ ~ ~ v Zip Code: ~ 7 L' ~ ~ City: ~yn.P k~~~ l ~ .County: Cv-"Y~ ~ f ~Ct ~1 ~ Township: ~,~,(,~~ 1^ J-{- ~(@/'1 Tax Parcel #: ~ ~ -- ? . tl _ ~ p f -~ f Ci NAME OF CENTER BUII,DING DESCRIPTION Total Sq. Ft. Available: 3;s {, k All Contiguous (y_7at): Total Sq. Ft. in bldg.: ` Z , ~ ` ~ Subdividable from S. 3 ~~ sq. ft. (minimum) to ~ ~ =~ ~ ~ sq. ft. (maximum) Space Available located: ~~s ~- Sic4 ~- Construction:S~ ~~~ ~- ~ OC.IC Column Spacing: ~J `~ Year Constructed: ~ r\ tt- Basement: •~G Elevator: !v iJ C'anarity rv ~!~' Rooms & Sizes (If attaching floor plans, summarize here): Gvt• re.}~~7 V~,ft~'~~,~©v~ ~; ~ rPGI Cl ~ S s S ~~ ~~aitC3rv d L~Oyv1 ~sr 2. s F~ OCl e eft ~rrc~-7n~ (t~MC,t, r-eicrY~ , `~ G F~i Cry S , ~~'Ct~ rrcr7~ Lt i-Pm ~- Sl~cnti%j-~~ ~~~~~ Restrooms: O ~'~ Reinforcement Method Floors: J Yl ~- No. Of Floors: C} ~.~ Ceiling Height: ~{ ~ ~ ~ ~~ Sprinklers: ~!p~1E Electrical Capacity: ZC>C} /T ~1.P ~ S (,n Cd f ~ ~ 6tC; s-f' HVAC: V-V-J b1oQ-~-~ ~~ S lrC ~Vr 1 C ~- ~~. Roof: ~.c~ ~~~ ~ i Equipment: , ~ cM{ Is this property in the flood plain? ti Historic district? ti Y/N Y/N Additional Info: DEMOGRAPHICS ' Radu Miles Miles S Miles Population --?~ ~:t6 ~~~ ,~75 ~~ ~;~~~ ~~~ . z~~c Households ~,~(~6 ~~, ~_~~ Household Income ~~;~~~~ ~~ S-~ , C2 `9S ~, S"1U FINISHING SPECIFICATIONS Ceiling Type: O.C~}v_~t, ~ d 1 -}- `, ~ ~ Walls: ~I'Ywcs(t Floor Type: -1-~t 1-~ G v ~ r' C Crnc. ~ P b P ~ c ca r.~~~~ ~ C ~' ~ ~ (. (771 C ti ~? ~--Q Lighting: g'eCA~o{ -rlvor~SC~n ~--- Business ID Sign: C, ~-1 -~ j C$~ . ~ C~t S z..~ ,~; n G~ .(~lr P Y"~1~ ~ ~-S Additional Info: f Paae 1 of 3 INSIDE INFORMATION , Lessor: (~, ~~~ }`~~ I I ~ t ~~ .Contact Name: ~ ~ iii Srx .Phone #: `~ ,~ i _ (bS--S (If Sublease) Owner of Building: .Contact Name: .Phone #: Existing Tenant(s): V~ ~ scx, e ~'~ Listing Agent(s):. §y ~~ ;.. /~ ~~ lt~ Commission: ~ IC fSr-a~C(n O~s ~~F w/ C-~,~sct~eL!~ shah E'av`~ ~~cn ~- Sign: ~ =~ (Size: c' ~ X ;Single-face or uble-f oat or Stand or On Bldg.: ) KeylShowing instructions: ~~ C ,;~ ~l;~~lk ~(,C C+ f t"G r1 r• P~~ ~ ~ -} ,_ f r" ( ~j Gv 1 Jl.-. (~~ ~- 5 ~~ ~e C S 1~ti(.;lti ;J Comments: Cross Ref. G L ~ ? O ~ ~- Mailing address of owner: f (.i ( k=~-t I ~ ~ ~-' f` y ~ ~ 1'G File No.: Date: Exp. Date: Rev. Date: Information concerning this offering is from sources deemed reliable, but no warranty is made as to the accuracy thereof, and it is submitted subject to errors, onussions, change of price or other conditions, prior sale or lease, or withdrawal without notice. (CIrRI.rBLK;PROPERTY LISTWG/kes;22fi/98;REVISED 4/23/99) Page 3 of 3 t- 0 N O --r.- ~~ 4 t _~ r i W M ~W `Jl ~/O v^_/\\ 'W'^^ V, O N L C'7 O ^~ W ,O V J O ^~`` W O O ti N ~_ _~ ;^ T - ~L/ m r _ M r' ~ r T ~ _~ 1 T T i W O ~~ CV 00 ti C'7 NAI/Commercial lldustpial Realty Co.' , ; IR) 761-5070 si n re uest - oYde~ own :SIGN REQ~TES7C~ ~JITI, NOT BE PROCESSED ~VI'I'H®UT _ COIVIPI;ETED IISTING~DESCRIPTION.'SHEET . `; »THIS COMPLETED FORM WII.,L BE FAXED; PLEASE USE BLACK.~IVK TO COMPLETE« File No.: C-l~:% 5 Date ordered: Approved by: LISTING AGENT(S): l,~L~iy~ Z,~ Term of listing: Are there any exclusions? ~ ~' If yes, explain: PROPERTY ADDRESS: (AS IT APPEARS ON THE LISTING DESCRIPTON SHEET) (Street) ~ ~C C} ~ s" :~c~ (~ ,~ r' r v ~. (Nearest intersection) r ~ (~ _~ (` , r .~ ~ - , (CityBoro) r ~ ~ 1~ ~ ~~ (Twp.) _1 ~T7,Uc•=~. r ~- M ~~ r~ (County) ~~iY17'~?f ~(~ ~ ~ If vacant land, Tax Map Parcel # Zoning Classification: (~ c~ ZrirYIP,d'~- tiC:t ~ ~'-PhF. (~C.?c ~ ~O~_ If~vurantll~id,,~g.~vern detailed ,descriptaon of ~Ize location of-the~pr'operly',~along with a plot plan or rlrawin,~; ~~ ~,~ ircdicatingplacenzent~r~flhe saga on the.sife, or~place,a metal GlRtsign to :desrgnate~fhe'exactyspot.~ ~`~V~~~ ry? 3 -. .. y ., New Sign ^ Sold Rider ^ Removal Change to Existing Sign ^ Leased Rider SIGN SPECIFICATIONS Size: 2X3 ~ 4X4 4X8 other (specify) Type: (CIRCLE) STAND OST ON BITIL,DING OLTBI,E AF ~E/SINGLE FACE Sign to read: AVAII..ABLE ~G~NTCS~~ N~r~E~S~ : CA!1~41~C~ ~ ~`, ~~ ('r-I c_~~-i-rrt.r'.~ ~r~ _~ nrlrn~ n ~ ~~~~rr~~ ~r. r~i... ~r~~iH~ uv~ r rcuV i r~rva: uraw a gnet plot plan ana/or give any special instructions ~~h~l ~ ~+ 5~ W~ . ~~ ~~~~ ~~~r r,-~ ~~~~~; .na ~~ Forms/s i q n-req uest: R08/08/01: CRY 3. 4. 5. 6. 7. 8. 9. ]0. 11. 12. 13. 14. 15. 16. 17. 18. 19, 20. 21, 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. S0. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71, 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90: 91 92. 93. 94. 95. 9b. 97. 98 99 I00 101 102 103. 104. 105, white -OWNER'S COPY COMMERCIAL-INDUSTRIAL REALTY COMPANY .canary - ClA COPY P.O. Box 8910, Camp Hill, Penns: is 17001-8910/I'elephone 717-761-5070 pink -FILE COPY LISTING .CONTRACT - EXCLUSIVE AUTHORIZATION'TO LEASE BCOkeC: COMMERCIAL-INOOSTR[AL REALTY COMPANY (CIIZ) BROI[ER'S DESIGNATED AGENT: TAa Mkt ~r The undersigned, hereinafter collectively called Owner, hereby grants COMMERCIAL-INDUSTRIAL REALTY COMPANY (CIR), hereinafter called Broker, the exclusive right to lease the Property as Owners agent. Broker will ac[ as Owners agent (Seller's agwt as defined in the Consumer Notice) and engage its efforts m find a lessee for the Property. Owner will refu all inquiries and offers to Broker. 1. PROPERTY: Address -idf17 it»+~rialp ~p in rho municipality of County of . ,Pennsylvania., consisting of (approximate sin of Property) ,together with the fo awrng rmp vemenrs - Optional identifiers: Tax Parcel # ,Deed Book Page , Othu 2. LIST PRICE: $ 9 _ IYl pu ~' or rental agreed [o by Ownu for a period of not less than _ `iVn~ and not morethan Rental to include; ^ Janitorial Service, D Heal, ^ Au Conditioning, ^ Electric, O Sewer, D Water, ^ Snow Removal, O'Tiash~moval, ^ Real Estate Taxes, 0 Insurance, _ ^ Plumbing. Repairs, ^ Structural Repairs, O Roof Repairs; ^ HVAC Repairs, O Interior Repairs, ^ Lawn/Grounds Care; t7 Other ('m+F Trra~e Ina rrrti C7 F~ ISF 3. LISTING PERIOD; The duration of this Agreement shall be twelve (12) months from the date sigt[ed by Owner, This Agememwt may be extended in writing by the parties hereto. After the termination of this Agreement end any extensions, the Brokers authority shall continue as to negotiations pending a[ time of termination. " The Listing Period and any extensions are collectively referred to as the Tum in this Agreement The duration of this Agreement, as.,set forth above, has bew determined as a result of negofiations betwew Brgker and Owner. - 4. BROKER'S FEE: I¢ exchange for Broker s services, Ownu agrees to pay [o Broker a lease commission of ~_ % of the total aggregate gross rental. This Fee is due and payable at the commenceme¢[ of the lease term. Brokdr's Fee is eamedif theProperty, or e4}) portion of it, is7eased during the Tetra of this Agreement by Broker, Broker's affiliated licensees, any other broker/salesperson, or person, including Ownu. Lease After Term: Owner will pay Broker's Fee if the property is leased after the expiration of the Term and: a, the terms of the lease were agreed to during the Term; or b. negotiations for [he lease wen pending a[ the expiraflon of the Tetra; or c. lease occurs within 180 days of the expiration of the Term, and the lessee was shown or negotiated to lease the Property during the Term of this Agrcement. SALE: If the Property is sold or exchanged du 'ng the Term of this Agreement, or within six (ti) months following the expiration of the Term, Owner agrees to pay to Broker a sate commission of tee-ps[eent{~%) of the purchase price (if no sales price, then on the fair market value), or $2,000, whichevu is grea[ec Broker's Fee is earned if the Property, or any interest m i[, is sold, conveyed, or exchanged during the term of this Agreement by Broker, Brokers affiliated Licensees, any other broker/salesperson, or"person, including Owner. Lease/Sale Does Not Occur: Owner will pay Brokers Fee (for lease: lease commission rate stated above applied to the List Price) if Broker, Broker's affiliated licensees, any other broker/salesperson, or puson, including Owner procuses a ready, willing, and able lessee for the Property. A wi/ling lesseeis one who will pay the List Price or more, qr one who has submitted an offer at any lease price that has been accepted by Owner. Broku's Fee in the event of lessee/buyer default is 50% of/from ]essee'sPouyers depgsi[ monies or such gthu sums as are deemed to be a liquidated damage due Owner by lessee/buyu. Owner will pay Broker s Fee, based on the lease commission stated above, if [he Property is withdrawn from dre market, or if Brokers authorization is revoked during the Term hereof or if the Ownu otherwiseprevents or impairs [he performance herwnder by the Broker. Renewals etc: If Owner enters info a lease for which Broker is entitled to Broker's Fee, and if said ]ease is rwewed or extended beyond the initial term; or if the premises aze expanded resulflng in increased rentals; or if the said Lessee remains in possession pursuant to a new or modified lease for any term of time following [he initial term, renewal term, or the extended tern[; or if the said Lessee relocates to anothu property owned by Owner, Owner's subsidiaries, or in which Owner holds an ownership interest of whatever nature; Broker shall be entitled to a commission, renewal commission or increased commission; as appropriate, equal to six percent (6%) of [be aggregate gross rental for the new term, renewal term, exteadtd term, period of holding over, or increased rental for the expanded premises as the case may be. In the event of a sale or assignment of rho Property which includes lessee's demised premises, thw a[ Broker's option, eithu (i) all commissions not already paid to Broku shall immediately become due and payable; or (ii) Owner will, without being released from Owner's liability hereunder, secure from the purchaser or assignee's written recordable agreement under which the new owner or assignee assumes payment to Broker of all commissions payable hereunder. The Fees due under this provision are payable beyond the Term of [his Agreemwt ~ _ Collection from Lessee: Owner agrees that if Owner fails [o remit tq Brokuany Fee due under this Agreement or otherwise rela[u[g [o [he Property, which non- . payment is not cured with tw (10) days of such non-paymwt, Broker shall have the right, but not the obligation, m accelerate the payment of all commissions due Broker, and to collect such paymwt from sums otherwise due to Owner from any lessee or sub-lessee of [he Property. Owner agrees that a written statement frgm Broker exercising its rights pursuant to this paragraph together with Broker's writteh.Certification of [he amount(s) due from Ownu shall be sufficient authority to duect said lessee orsub-lessee to pay direc$y to Broker any rent or other gbligation otherwise due to Owner, ro the extent of the Owner's default under the Agreemwt Owner further agrees that in dte evw[ Broker invokes the provisions of this pazagraph, Owner "'shall hold the lessee or sub-lessee harmless for and [o the extent of any payment made by lessee directly to Broker. Owner agrees to include this provision in all leasesnegotiated for the Property. The amount of the Broker's Fees se[ forth above have been determined as a result of negotiations between the Broku and [he Owner. 5. DEPOSITS: AIt payments made on account of [he real estate tr9nsaction contemplated by this Agreement, regardless of the form in which said paymwts are made, whether it be cash, judgment note or othu instrument, and regazdless~of the person designated as payee, shall be retained by the Broker in an escrow account in accor- dance with the Real Estate Licensing and Registration Act of the Commonwealth of Pennsylvania and Rules anti Regulations issued [hereunder, and shall be distributed as required therwnder. In the event of a dispute over entitlement to deposit, Broker will maintain the same in an escrow account until a resolution of the dispute by agree- went r final order of court. 49 Pa. Code §35.333(a)(8). Ownu agrees that if Owner joins Broker in a suit over-entitlement to deposit, Owner shall pay Broker s costs and f s, including attorney fees. Any uncashed check tendered as deposit may be held pending the acceptance of an offer by Owner. 6. A ORNEY'S FEES: If Broker institutes suit to collect any compensation due hueunder which results in any award or judgement or if Broker successfully defends any actio¢ brought against Broker by the Owner arising out of execution of this Agreement ar any contract or odru transfer relating to the Property, or if Broker elects to pay any disputed deposits or other funds being held by Broker into court, then Owner agrees [o pay all costs incutred by Broker in connection with any such action, including Broker's reasonable attorney's fees. 7. 04}'NER'S AUTHORITY TO LEASE: Ownu warrants that Ownu bas good and marketable fee simple title to the Property and/or exclusive options to purchase or other binding agreements of interest in the Property that are in good standing and eXpire on or after the expiration date set forth in this Agreement. Owner further war- rants that Owner has all necessary power and authority to enter into and perform [he terms of the Agreement and hereby agrees to furnish and/or execute documents that reasonably evidence Owner's authority as set forth herein. To the extent tbat the Property is subject to opgon(s) to purchase oche[ agreements vesting equitable title in Owner, Owner shall ac[ diligently and in good faith to maintain such agreements in good standing during the term of this.Sgreement 8. INFORMATION/APPROVAL: Owner agrees to make availabte to Broku all data, records and documwts pertaining to the Property, to allow Broku to show the Property at reasonable times and upon reasonable notice, to execute and delivrs any documwts reasonably required by Broku to enable Broku [o effectuate the Terms of this Agrcemem, and to commit no acts nor to permit any inactio¢ which would prevem or impair the Broker's performance hereunder. Ownu shall, additionally, be responsible for, diligently pursue and pay the expense of satisfying any ordinance and approval requirements necessary to convey, lawfully, the Property, or any portion thueof. 9. SIGNS/COOPERATION: Broku is hueby authorized to place "For Rent/Lease" and similaz signs on the Property, to remove all othu signs [huefrom, and in Broku's sole discretion, to advertise and [o promote lease of the Property. Ownu has been advised of Brokers policies of coopua[ing with other brokers and agrees that Broku may pay from Broker's Fee a cooperating commission to such othu broker-who acts as a subagwt for Owner, lessee/buyu agent, or transacpon licensee far lessee. 10. HAZARDOUS WASTE: Owner represwts and warrants that Owner has no actual knowledge nor any reason m believe that hazardous waste or contaminants (including asbestos and radon), that might result in liability [o an owner of the Property for costs and expenses incurred to remediate suchcondition, have evu bcea, or are prese¢tly found, orare being disposed of on the Property. Ownu agrees not to dispose of any hazardous waste or contaminants on the property during the Term of this Agreement. Ownu agrees [o assume any and all liability and costs as a result of a breach of this or any other representation and/or warranty and will indemnify Broku against any loss or claims against Broku in connection therewith. 11. UNDERGROUND STORAGE TANKS: Ownu represents and warrants that all storage tanks located on the Property (if any), whether aboveground or underground, have been reported and registered with [he appropriate state and/or local agency and/or depaztrnent as required by law and have bew and are being maintained as rt:quired by law. I¢ the event that the Ownu has no[ complied with any applicable statutory provision, Ownu hereby agrees to assume any and all liability and costs incurred as a result of a breach or noncompliance with the applicable statute, and to indemnify Broker against any loss or claims against Btoker in connecton therewith. 12. ASSIGNS: This Agreement shall be binding upon the undusigned Owou and Broker, thetr heirs, executors, administrators, successor and assigns. 13. JOINT LIABILITY; COPIES: The Owner, having carefully read and considered the within Agreement, hereby acknowledges receipt of an exact copy of this Agreement. If executed by more-than one Owner, the obligations of Owners hueunder shall be joint and several. 14. AGENCY: Owner has received and reviewed the Consumer Notice adopted by the State Real Estate Commission at 49 Pa. Code §35.336. The definitions of business relationships and the duties required of licwsees as set for8r in the Notice are incorporated here as though set forth at length. Broker is acting as Ownu's agwt as defined in [he Consumer Notice (Bello A wt) Broku also re resents Le ed by Broku entertains the leasing of Owner's prgperty, Broku will au as a dual~agent as defined in t1ieConsuroerlNotice,,OwRatonsen [ Broku serving as asd~ r agent. Broker may, with Owners consent dysi ~. ate,arr agent to represent, Owner, and with lessees's consent, deli ate an e wt tore ~ ~ ~~ B g ` p' B - ~n g present lessee A Desi ated A tit is a dual a enf when re resennn Both' bwrier d lessee: - 'i I5. ADDITIONAL TERMS: Ownu has read the Consumer Notice prepazed by the Rea] Estate Commission. The definitions and duties and disclosures set forth in the Notice are iucorpi,raied uereiri by reference. Tha Civii Rights Notice and [he neat Estate I:ecovery Puod L:otice ~ and on the ::.verse sides of d»s Agreement are an inte- gral part huwf. -,~:- _~-/-) WITNESS: (OR ATTEST) OWNER(S) `~ ',„~~'~~.»y' ~~ (Name of Corporan or pr}t ersh p, i~ rep tcp able• BY~ J J (SEAL) Print Name: Title: Date: Print Name: Date: Tide: Print Name: 106. Date: 107, By: 108. COMMERCIAL-INDUSTRIAL DATE tno ncetmv r`nx.rnewty n......~..x. r..____._~._.,.._~_~n__,.-. .._ ~nnd Title: - 9R-i46flnfi9fi EXHIBIT "B' 20 ' d ~1ti101 Septcmbei' 1Z, ZOC32 Global Video, lnc. 2740 South Front St. Fhiladelphla, Pa. 19148 Rk: AJ~A>r>`ti)tJM TO LEft,5E A(}ltI:ENLENT at 3401 Hartzdale Urive, Camp Hill, Pa. Dear N,(r. Merman, This letter will act os an addendum to your lease dated March 1, 1998 botwoen l3exry Pagliaro, LartdlorSl, and Qlobal Video, Inc. Tenant, giving you an additiona13,600 sy, ft. of adjoiain& space. Exhibit A New ttlttrt9 are as aollows: at the end of the original lcsa~, you will have one 20 year ~ptiun to extend fir the total '1,200 sq, ft., with a sn/a increase per year with the same tests ar-d conditions contaizt in the original lease. 'You will loa~o tho total 7,200 sq, fl. from Octrober i, 2402 to April 30, 2003 and thetotal 7,?.00 sq. ft, with a 5% increaseper year for tho last fire year option in the original lease with the same terms and rartdltlotu contained in the lease. Except forthc additional space, the conditions and torrrts will stay the same in your origins! lease. Also, you will be leasitt$ ba,lf the pylon sign indicated bq ttse Golf Shop signago for an additional 5100 per moath starting October 1, 2002 with a 5"/o increase starting May ], 2003 end every yrtar after that as long as you continue to lease the 7,7.00 sq. ft. Tenant shill have the rigltt to Sublease the 3,6Q0 additional sq. fl. for any lawful use, with the approVSl of th®Landlurd which approval shall not be unrea3onably withheld or delaysd with the same terms acid wnditions in your ori,~inal lease. ?meant shall be eatltled to retain a.ll rent from any subtenant 1n excess o;f thfl amount payable to I.aadlord. Your rant for the eddition~t space will he 53,099.54 plus s cam of aS55.00 for a total of 53,654.54, plu' a sec~cer'ity deposit of $3,099.54. Please sib a copy and roturncd it with a check for 56,754.08 attd keep a copy for your files. ..- s~att xormnn, Tcaattt ..,~~ ~ d ar Lan r Clabal Video, Inr:. Z0iz0'd 9S9t £9L 9S9Z f:9L Z0 :0Z z00Z-9I-ddS ~r~.~ ~.iHr~r ~c+r rr~A7 qt •daq AAplb+1.x.9+SIZ 'ON ~NOHd ~iS121ki15 8 ~101d~lSNSO S,NISIS WO~Id EXHIBIT "C" 10/13/2004 11:07 FAX 717 753 1556 R3R REALTORS LISTING I . FOR RENT OWNERS OCCUPANTS (4-82) TE&~IlPOSSESS (4-82)' BLIILDINGS & II~IPROVEhIENTS (482) DEFECTS • DISCLOSURE (4.82) EXCLUSIONS (4-82) FEATURES INCLUDED (4-83) ~~,LAND rMPROYEb4ENTS .#ND SERVICES (4-82) UTILITIES B SERVICES (4-82) CONVET`TENCES (4-82) P.~1Y"ylENT INSTRUCTIONS OCCUPANCY (10-91) . ... AUTHORIZED ` (4-82) AGENT'S FEE & EXPIRATION (10-91) ~J002/003 ' ' This-form recommended and approved `for; but:not rer'~ sled to use by Resideptial members of the Penttsy yani.a Association of `tors® XLR-1970 (Rev. 10-91) GENT: ~. ~~~t/1M ~ ~ bC r C„7 t.~?UIe.J 'PROPERTY DESCRIPTION, RMS & STATISTICAL INFORMATION FOR RENTAL u OFFICE 0 HOUS APARTMENT' b STORE. ' • ~ . ~~ C~ ~~ PROPERTY LISTED / ZLI^Q~t .D.2- b'IONTHLY RENTALS t'O MIJNICIP4LITY / ~ SECUI{ITY:DEPOSIT E ' OWNERS ~ ~ MAILING ADDRE - B S L. #k I r G ! Ct OCCUPANT $FS TEL. # 73D=- 2~6' TERM OBSESSION A.t~M ~ TYPE BLRLDING ANDD~ I'>:EC?L'RE ~~ .YEAR BU[LT ~ D CANS7RIICTInN ~ (/ ~~/l C.>/ .,• .. . PROPERTY DEFECTS IG`IOwN TO Ow~-ER; ff ANY:_~/ L L/L1 f ^ COMB. ST. DOORS ^ AIB.COND. UNIT ^ SU,N DECK ~ C(~APERIES ~ O _ A SERVICE ~ • _ r1 COMB. ST. WINDS. ^ CENT AIR CON. O Tv. ANTENNA .= DRAB 8005& HDW. U 220V SERVICE U FENCIN6~ ~ ~ O CHANDELIER ~ I:'~ ROTOR'ISYSTEMS ~ ^ GARB. DISPOSAL ~ D -SUMP PUMP ' CJ VEN. BLINDS O PORCH ~~ ~ CORNICES J DISHWASHER ~'~~ ,, D RANOErOVEN .. , O RADIATOR COVERS O PATIO ' ~. J CUR.ROixS,B, HDw. , .'C UUJNO. FACfI. ~ 0 REFRIG.' •, ^ CARPETING ~ ~ ~ ~ ~ ~ SMOKE.DElECTOA _ ;', INSULATION;, - ~7 WALLS R- p. CEILINGS R- ~ • ~ ~O FLOOR6 R- ^ . LOT SIZE Z /kC.La~e. ~ ZONING ,, •:. _ 1'5 PUBLIC'HI'ATER. PUBLIC SEWER ^ SAND MOUNp C SIDENlALKS ^ PFjiVATE DRNE O WELL (_ paptn) O CESSPOOL. C STREET LIGHTS =REAP ALLEY D COMMON DRIVE ^ OAS O SEP.TANK (_ gel.) ~~~ D PAVED.STREETS a OFFSTREET PARK. 7 TP.ASH/GAR. COLL, SUPPLIED BY OZ~?IER: U GAS ~. L HEAT ..., ~ ~~C ELEC7RIGITY ~ p~HOTWATER .. O LAWN CARE i.~ JANITOR ^ CALD WATER '`.~.' •' 17 YEARL MI yMUF,r WATER:BIL•L' :. • L ~ ~~ (' ~ ' C SNOW REMOVAL ~- • • kB-t.2_ ~ ~(l2Q,1 SCHOOLS TRAN~PORTAT~ON~`" ~• ~. SHbPPTivG O PAY OWNER . G PAY MORTGAGEE 3 •• ti~ TAXES S Q ~ 7.~ "' 0 FIRE INSURA.'JCB PREbfIUMS 0' OTHER ,NIOR7GAGEE ~ ACCT. k. aDDRESS I~•fO. PMT. •S NUMBER OF OCCUPANTS , ' ~~PETS: `," - ~ ' • .RESTRICTIONS 1 '1`7 RENT STGi`T RENTED SIGN ' KE1R IN'OFFICE 0 ICY LOCK BOX ON.I)QOR , IHE AGENT`S FEE AND EXP1ILtT10`1 DATE OF THIS AGR6EFIEN7NAYE w $EEN ESTAHLISHEp OR RECO)vIPIENDED BY ANYI' ASSOCLI= ® TION OF REALTORS , OR SY ANY OII{ER ORGAwIZATTON OR.L~D NAVE BEfiN DfiTERh1L'IfED AS A RESL2T OF \BGOTIAT/ONS DET~tiEEN THEAGEtiTAND THE OWNER. lg Plan "A" RENT COLLECTED B~QA9SlCT" .. .. ....... .. obtaining tenant FEE O /O rent coilcction monthly FEE A', b Plan "B" RENT COLLECTED BY 0«'KER .......... . ,obtaining tenant F7='E Plan "C" SPECIAL FEATUB>rS AND INSTRCCTIONS CONTRACT NEGOTIATION 4ND OR DIAINT NANCE A,'~ID SUPERVISION .......FEE SALES FEE (if purchased by tenant): ~ nf/from the sgrted>;alea price. EXPIRATION DATE OF AGENCY ti ,l AGE'N7"S FEE YROTECTIZ~ERIOD f~ospeetive tenantsPonyers after expiration of Agency -~'v f !/~,- , ~ ~ o~~-y ~.~.-fit -~•~ ~o ~ ~ PR~r~ '~ t. ~S 1~~~t.-~•Ly ~. ! _ nom(. ~~~~ _~~~ V ~L VER)- PennsylVenla Aaealclatlon oI COPYRIGHT PENNSYLV.~NIA ASSOCLaTTON OF kEACtORS>a 1ST! ® REALTOR" ~ cOP1E,i: W`IJJTE-OwKER:XL•CLOwI'-AGENT, r~;~•ca~ n.w.Mtiw.•e,~.r+,.. ~ 8LL'E- 7!96 BASEMENT OR ROUND LEUPL ~ ~ ' ' '•' FIRST LEVEL 77J ~'7q'~ OF / ,~ ~3L o o c"1 /7J"U f~~J~ 0 s~a~,svt:I. GG~rC~ FLa~C 'FFI~B-bEYEL _ - 10/13/2004 11:08 FAX 717 763 1656 R.iR REALTORS AGENCY B TERM (4.83) EMERGENCY REPAIRS POSSESSION (7-87) AGEr`~r's LIABILITY (7-87) DEPOSIT (7-87) RECOVERY FUND (4-89) TITLE ASSIG\S, ETC x0) CE TO PERSONS OFE'£RING TO SELL OA RENT HOUSING IN PENNSYLVA~L4 (io-9i) NO OTHER CONTRACTS (z•se) AUTAORTTY TO SIGN APPROVAL Gj? OG3/G03 'E3COP:IiSNE~L'IS'FING1riGRF,EMENT ROR-LE~iSF r1F REAL ESTATE ... .,: j ~ °'COPYRIGHT•PENNSYLu~lIA ASSOCIATION OF LTORS®1973 ~ " ~ :. , ' 1. In eonsideradon of your agreement m endeavor to pttxyra a unanc ihetefote; I hereby employ you as the sole and exclusive agrnt for the renal.-of the property described on the-reveree side-of this, form and gran[ you the sole and 'exclusive tight so rrnt dte ssud propeny (h«cinehu refented to as ttgeney) for the ti:rms imd' mdnthly reheat see forth hcmiv, or for or upon any other terms w which I may agr«. This s~gency shall evntinue in eff«t until the "E%?1R.4Trl]N DATE OF AGE'*tCY"'a9 specified on the tover3e side of this form uLless utcnded, pr wriattg~by the parties hereto Afar the 'EXPj)rATION DA37s OF'ACIENCY'='otany extension [hereof, the Agent's authority shall eon- tinuc as m ncgoaations pending at time of such expiration. Z agree that if property is reared during the term of the said agency, WHETHER EFFECTED BY WHOMSOEvE'R INCLUDING DfYSELP, THE OWNER. I will pay yoUthc "AGE`dT'.S Fh'Ti" and 1 sill pay you [lie lathe fee if: • ,(A,t. yw alotuip7 in cooperation with soothes agent produce arenam who is ready, walBag. and ehle'tp lease dte property. (H) during eha,"AOBNT'S FEE PRO'IF.C.'I{ON PPR10D" spreifind on the reverse side vf.this farm, ! shaII tent a in whole or in part to anyone; or she "SALES FEE" if I ahoald scH ar contract m sell it co any tcrtant with whom you or any ocher agent or I shall have negotiated during the term of thin ageay aYid providing the property, is-not listed exclusively with another Hroker.az the time. Tjle f« for the rnlkcdon•af rents; will eoatinve for the entire [earn of any tenancy created under dtc.tervts of'.this agency including the mnewal,•tixronsions or say additional leases which may reauk rherefiom. • It i. agreed that the agent's f« for maintrnana supervision and or maintenance contatt negotiattnna shall be the percentage of ctie con- traet price or the lowest contract price negotiated and secured by the Agent on my behalf az my request u specified und: r `Agcnt'e Fee" on the reverse aide of [his form. said fee [o be'dne and,psyable u the time of the compladon oP.agats services had the .4gcnt is authorixcd to deduct any such fee From the a«ouvt of the huein drsaibed property. 2. As my Agent, you stn hereby' audtariud, but not obligsud or responsible, to contract on my belulf for any repairs which in your opinion tie of m emugrncy nature for the protection of dtc property or strt'1Cea to (tie property' which may be required ondeY soy lenses I racy subacquatly approve. 1 Atnher authorty you to contact on my behalf Tot any repair which may be oeassary is wmplian« .with notices or direetivu issued by any miltlioipal or governmental authority. 3. It is agreed that possession will be given m any lessee ss specified on the rn-etse side under 'TERWPOSSESS" and upon the terms set forth in obis Agency- It u further agreed chat I will hoc enter ipso or renew any lease for any urns during the trsm'of this Agency except as hated herein. 4. It is expressly understood end agreed chat the Agrnt, his selcspcaans, and employees of any afBcu okputner of the Agent are acting as Agar only sad will in no cast be held ]iablccithvjoindy or severally ttx danaageS or repairs to the subject promises or Por the perfortnance of any term or covenant of amt lease resulting from this agency or for damages fotaonperfottaance thereof. 5. I agree that any deposits or head monies secured Crow any unant obtained by you or arty athu Agrat, shell be rctaincd by you in an escrow account in aeeordanx with the Aeai Estate Licensing and Registration .tit until the consummation or termination of any lease including rcnewsla, extensions of additional leases, inhere the original tease resulted from ymu seniccs or any adrerAgrnt during the term of your agency in confo[- mity with all eyplicable laws and rcguladons, The Agent for the Lessor may, erhis/her sole op[ion hold sny'uncasheA chock [endued as depositor hand monies, prnding the acccpesnce of say offers obtained on the property. 6. A Real Estate Recovery Fund zxisu [o reimburse any person who has obtained a fins) civil judgment against a Pansyhania real estate licgrtsee6widg to feud, snisrcpreuntation or dxcit in a real csrate trsttsaction and who has been unabls to collect Ne judgment afar exhausting all legal•and equitable remedies. For compleu details about the Pund, taIl (717) 783-3653, 7, I further ttRify thee I oven the subject psopcny with fu simply tide cxcrpr at noted on this form, sad that I ant legally able tv execute a valid lease for the property as offered. S. This Agrnq~ alisll inure to the bcncfie of and be binding upon, the parties hereu, and their respective personal representatives, guudixns, aasigm and r.,.^.csorx. :-~: 9. CML RIGHTS ACTS: State end Federal, Jaws regarding civil righu in real estate transactions apply primarily m the Owacr and Agam. However, [hc laws also apply to other persons involved in the taasacdon. The provisipns of two Federal end three State laws tie of special signif- 1CanCC: (A) TF1E CNIL RIGHTS ACT OF 1866: This set provides that ell ciduns of the United States shall have the same sigh[ to inherit. purchase, Icase, sell, hold, sad cowry real or pusonel property rcgardlass of tax. (B) THE CIVLL RIGHTS ACT OF 1968: (1) TITLE VIII, which applies to all aspects of a housing transacdvo, prohibits discrimmeuon in renting, selling, yr ]rasing h~us- ing on the basis of RACE, COLOR, RELIGION, SEX, HANDICAP, F/~M1LfAL STATUS (CHILDRE:N UNDPA 1Z3). OR NATIONAL ORIGIN. NO PROPERTY IS EXEMPT•WHEN IdSTED w1TH!- BROKER. (Z) T]TLE ITC prohibiu the willful or attempted injuy, intimidation, or interference with any person h«atru of his/her A.4f/Pr COLOR RELIGION, SEX, HANDICAP, FAMII.IAL STATUS, or NATIONAL ORIGtN'in the selling, puichasing, renang, • financing, or oaupyiag of any dwelling or in wntractiag or negotiating for the sale, purchase, rental, financing. or constzuc• tiov of any dwelling, , (C) TffE PHIdNSYLVANIA HUMAN RbLATtONS ACT: This law prohibits disuimiriation. Neither 1 nor my bml;u or salesprxson ', may steer, diroct, or initiate a discussion or engage in any form of solicitation !n regard to RACE, COLOR RELIGION, CREED, ANCESTRY, SE7C. N.4TION.9L ORIGIN. HANDICAP OR DISABILITY OA THE USE OF A GUIDE OR SUPPORT ANIMAL BECAUSE OF THE BL .1\'DNESS, DEAFNESS, OR PHYSICaG HANDICAP OF THE USER OR BECAUSE THE USER IS A HANDLER OR TRAQ.'ER OF GUIDE OR SUPPORT.4NII.iALS. The An applies ro: (1) Prospective owaets, oceupanu or users of housing actommodadons or eommereial propcties; (2) The selling, ]easing, or financing, of housing eaommodarions or commercial property; (3) Agreemrnts, showing of properties, deposit rogvircmen[s, lasses, sales agreameats, applicadtms, selection procedures; mort- gsges, conawcrion loans, rehabilimrion loans, repair loans, and/or maintenance loans; (a) Pusons who aid, abet. recite or compel another ro commit any of the discriminatory sets oudincdabove. (D) THE PENNSYLVANLA REAL ESTATE LICENSING AND REGISTRaIION ACT. This act makes it unlawful for a real estau broker or selesprrson to violaze the PENNSYLVANIA HCM~hI RELATIONS ACT, including accepting a listing with an under' standing that illegal diserunirration is the'~ca]e or rental of the property is co be practiced. (E) PENNSYLVANIA ETHNIC INTTbiIDATTO'd ACT: This Act provides for an inaeese in the severity of the underlyins criminal charge and may rtsult in the imposition of a fine and/or Imprisonment far harassment by eommtmicndon. criminal tnisebief. arson, cnmmal tespasa, or desmlttlon of propem when motivated by R~CE,COLOR, RELCGION, OR NATIONAL ORIGIN. 10. No listing agreement for a term beginning before the expiration date of this listing may be entered into by owner with another agent dur- ,ng the term of this agreetneat. 11. Q I hereby also appoint you to ea u my agent for the puipose of signing the leases for this propeny on my behalf with the acme forte and :ffcet ae if it has been signed by myself Ind affutn this authority by'rny initials affixed hereto. this authori ndt vtdid v cs ale . s~~ _ (S) OweCt Y .Dart I9{~. Owner. S) ( ~A~S~ ~ (S P05SESSIOCI `- REN[9L, PROPERTY ~P7~0~ ERMS Br STATISTICAL R~'FORMATION ON REVERSE;SIDE ., COMMERCIAL-INDUSTRIAL REALTY : IN THE COURT OF COMMON PLEAS, COMPANY d/b/a NAI CIR, and :CUMBERLAND COUNTY, PENNSYLVANIA ROTHMAN SCHUBERT AND REED REALTORS LLC d/b/a RSR REALTORS, : Plaintiff v. N0.09-2724 CAPITAL PLAZA ASSOCIATES, Defendant :CIVIL ACTION -LAW CERTIFICATE OF SERVICE I hereby certify that the foregoing Complaint was sent by first class mail, postage prepaid this day to the following: Capital Plaza Associates 4933 Ancinetta Drive Schnecksville, PA 18078 Ily Submitted, ix, W,e~ger & W Date: 31Z~~~® f~auld Cribben, Paralegal 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff, Commercial-Industrial Realty Company d/b/a NAI CIR 10 e~/~c. .~ COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, and ROTHMAN SCHUBERT AND REED REALTORS LLC d/b/a RSR REALTORS, Plaintiff v. CAPITAL PLAZA ASSOCIATES, Defendant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA c ~ - ~, , - c c:-, :.~ r ,--- - ; m .,,:.. ,~. N O 09-2724 ~ ~ `~`' ~ ~ ,~rv . ~' ~,_ ~ '~' °~^ ~ 'y A 1.M ~ CIVIL ACTION -LAW ~~ ~ ~. ~ =~ ~_ ~ ~~ PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the above matter for the next Argument Court. The matter to be argued is the Motion for Summary Judgment of Plaintiff Commercial-Industrial Realty Company d/b/a NAI CIR. The following counsel will argue the case: For Plaintiff: Jeffrey C. Clark, Esquire Wix, Wenger & Weidner 508 North Second Street P.O. Box 845 Harrisburg, PA 17108 For Defendant: Samuel L. Andes, Esquire 525 Twelfth Street Lemoyne, PA 17043. All parties will be notified within two days that this case has been listed for argument. Argument Court Date: August 18, 2010. DATE: 7/27/ v By: P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff Respectfully submitted, WIX, WENGER & WEIDNER J~ y lark, I.D.#89277 5 Nort Second Street ~ ~ ~ ' COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, and ROTHMAN SCHUBERT AND REED REALTORS LLC d/b/a RSR REALTORS, Plaintiff v. CAPITAL PLAZA ASSOCIATES, Defendant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-2724 CIVIL ACTION -LAW CERTIFICATE OF SERVICE I hereby certify that the foregoing Praecipe was sent by first class mail, postage prepaid this day to the following: Samuel L. Andes, Esquire 525 Twelfth Street Lemoyne, PA 17043 Attorney for Defendant Robert L. Knupp, Esquire 407 North Front Street P.O. Box 630 Harrisburg, PA 17108-0630 Attorneys for Rothman Schubert and Reed Realtors LLC Respectfully Submitted, Date: ~ lo~~ I ~~~ W}af Winger & Weid Sul Cribben, aralegal 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff 3 d;to 10 f?vG ?3 VM v 4 tv F i COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, and ROTHMAN SCHUBERT AND REED REALTORS, LLC d/b/a RSR REALTORS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. CAPITAL PLAZA ASSOCIATES, Defendant NO. 2009-2724 AFFIDAVIT OF GASPARE DiCARLO GASPARE DiCARLO, being duly sworn according to law, deposes and says as follows: 1. He is the officer of the Defendant Capital Plaza Associates who was responsible to investigate the purchase of the commercial real estate which is the subject of this litigation. 2. He was made aware of this property, and its availability for purchase, by William McCall, a real estate agent then working for the Plaintiff Commercial-Industrial Realty Company ("CIR"). 3. He had dealt with Mr. McCall in previous real estate and business transactions and trusted Mr. McCall to provide him with complete and accurate information, about the property.. 4. During his investigation of the property and its potential purchase, he was advised by Mr. McCall that the owner of the property was obligated to pay a commission to Rothman Schubert and Reed Realtors, LLC, ("RSR") as a result of a lease between Mr. Pagliaro and Global Video which had been negotiated and arranged by RSR dating from 1997. 5. At no time during his investigation of the property and his potential purchase of it, was he advised, by Mr. McCall or any other person, that there was a claim by CIR for additional commission as a result of a second lease, or an expansion of the initial lease, with Global Video. 6. He inquired about the financial operations of the building and the obligations Mr. Pagliaro paid during his ownership and operation of the building, as part of his investigation of the property and his consideration of purchasing it. . , 7. At no time was it disclosed or made known to him, despite his inquires, that there was any additional commission payment due to any parry or person other than the commission due to RSR for the-1997 lease. 8. He would not have agreed to purchase the property, or committed Capital Plaza Associates to purchase the property, had he been aware of the claim by CIR for the additional commission which CIR nova claims. 9. The cost of the commission now claimed by CIR is such that the profits from the operation of the building are insufficient to justify purchase of the property by Capital Plaza Associates. 10. The failure by CIR's own representative to disclose to him, after inquiry, the claim for the additional commission by CIR was a representation which was material to his decision, and that of Capital Plaza Associates, to purchase the building. Gaspare DiCarlo Capital Plaza Associates Swom to and subscribed before me this *4 04 day of J fl, A r , 2010. Notary Public. Now?rAL uAL MATMEW A W MUR Notary P.Ibk NORTH WWEHALL TW. LEHIGH C? My commadcn bpfts Doe 7? 201 1 COMMERCIAL- INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, and ROTHMAN SCHUBERT AND REED RSR REALTORS, Plaintiffs V. CAPITAL PLAZA ASSOCIATES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 09-2724 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF COMMERCIAL-INDUSTRIAL REALTY COMPANY BEFORE HESS, P.J., OLER and MASLAND, JJ. ORDER OF COURT AND NOW, this 20" day of August, 2010, upon consideration of the Motion for Summary Judgment filed on behalf of Plaintiff Commercial-Industrial Realty Company, and following oral argument held on August 18, 2010, the motion for summary judgment is denied. BY THE COURT, J. Wesley Oler, Jr., J. '"' Jeffrey C. Clark, Esq. Dean A. Weidner, Esq. 508 N. Second Street ° P.O. Box 845 Harrisburg, PA 17108-0845 Attorneys for Plaintiffs - s Samuel L. Andes, Esq. P.O. Box 168 G Lemoyne, PA 17043 Attorney for Defendant '6v 1 I~ ILED-0 ATE' Clr THE PROI*H, 0!40 T, 2011 MAY --C AM 10. 0 CUMBERLAND CGt, JF ' PEN ISYLVA?d COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, and ROTHMAN SCHUBERT AND REED REALTORS, LLC d/b/a RSR REALTORS, Plaintiff vs. CAPITAL PLAZA ASSOCIATES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2009-2724 PETITION TO AMEND ANSWER AND NEW MATTER TO ADD COUNTERCLAIM AND NOW comes Capital Plaza Associates, the Defendant in the above matter, by its attorney, Samuel L. Andes, and petitions the court for leave to amend its pleadings in this matter, based upon the following: 1. The Petitioner herein is the original Defendant. The Respondents herein are the original Plaintiffs. 2. Plaintiffs filed their Complaint in this matter on 3 March 2010. Thereafter, on 6 April 2010, Defendant filed an Answer with New Matter. 3. Since the filing of its Answer and New Matter, Defendant has investigated the matter further and determined that it has a claim against the Plaintiff Commercial-Industrial Realty Company d/b/a NAI CIR, for a breach of that company's fiduciary duty as Defendant's real estate agent. 4. Although Defendant raised, in its New Matter, the factual basis of its claim that Commercial-Industrial Realty Company d/b/a NAI CIR, as Defendant's agent, failed to disclose the obligations which Plaintiffs now seek to enforce, it did not raise a counterclaim against Commercial-Industrial Realty Company d/b/a NAI CIR. 5. Defendant now seeks to raise that claim against Commercial-Industrial Realty Company d/b/a NAI CIR so that, in the event that any award is entered against Defendant and in favor of Rothman Schubert and Reed Realtors, LLC d/b/a RSR Realtors, the other Plaintiff, Defendant can recoup that claim from Commercial-Industrial Realty Company d/b/a NAI CIR, for its breach of its duty to Defendant. 6. To clarify this matter, Defendant wishes to amend its Answer and New Matter by adding the Counterclaim which is attached hereto and marked as EXHIBIT A. 7. Prior orders in this matter have been entered by the Honorable J. Wesley Oler, Jr. 8. Plaintiffs, through their counsel have indicated that they do/do not concur in the relief requested in this Petition. WHEREFORE, Defendant prays this court to grant it leave to amend its Answer and New Matter to add the attached Counterclaim to the pleadings in this matter. Samuel L. Andes Attorney for Defendant Supreme Court ID 17225 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unswom falsification to authorities). CAPITAL PLAZA ASSOCIA y Date: GA ARE DiCARLO 4 --a 1-?? EXHIBIT A COMMERCIAL-INDUSTRIAL REALTY ) COMPANY d/b/a NAI CIR, and ) ROT -I AN SCHUBERT AND REED ) REALTORS, LLC d/b/a RSR REALTORS, ) Plaintiff ) VS. ) CAPITAL PLAZA ASSOCIATES, ) Defendant ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2009-2724 COUNTERCLAIM OF DEFENDANT AGAINST PLAINTIFF COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR AND NOW comes the above-named Defendant, by its attorney, Samuel L. Andes, and makes the following counterclaim against Commercial-Industrial Realty Company d/b/a NAI CIR, based upon the following: 1. The party making this counterclaim is the Defendant Capital Plaza Associates ("Capital"). 2. Capital asserts its claim against one of the original Plaintiffs in this matter, Commercial-Industrial Realty Company d/b/a NAI CIR ("CIR'D. 3. Plaintiffs' claim arises out of a series of real estate transactions in which Plaintiffs claim they became entitled to the payment of certain commissions for their services in arranging tenants for a property in Lower Allen Township (the "Property"). 4. Capital purchased the Property from the prior owner who had entered into the real estate commission agreements with Plaintiffs. Plaintiffs claim that, pursuant to the agreements signed between that prior owner and Capital, Capital became obligated to pay the commissions arising out of the agreements between Plaintiffs and the prior owner. At the time Capital purchased the Property from the prior owner, Capital was not aware of the commission arrangements or obligations. 6. In the transaction in which Capital purchased the Property from its prior owner, Capital was represented by CIR as Capital's agent in the transaction. 7. CK by virtue of the very agreements on which they have commenced this action, was aware, or should have been aware, of the real estate commissions they now seek to collect and the agreements which they claim entitled them to those real estate commissions. Capital believes that CIR and its representatives were aware of such obligations or claims at the time that CIR represented Capital in the purchase of the Property. 8. CIR failed to disclose or make known to Capital the existence of the agreements which create the alleged obligation which Plaintiffs now seek to enforce. 9. CK as an agent of Capital, had an obligation to disclose and make known to Capital the existence of the agreements and the alleged obligations for the payment of real estate sales commissions on the Property. 10. Because CIR failed to perform its obligations and duties as an agent to Capital, Capital has incurred significant losses and expenses, in the form of attorneys fees and may incur additional losses in the event that Capital is required to make payment of commissions to Plaintiffs as Plaintiffs now demand. 11. CIR, by its conduct, and by its failure to perform its fiduciary duty to Capital to disclose to Capital the real estate commission obligations, has injured Capital. WHEREFORE, Capital Plaza Associates demands judgment against Commercial- Industrial Realty Company d/b/a NAI CIR for all damages or sums it becomes obligated or required to pay to Plaintiffs in this action, plus pre judgment and post judgment interest on said sum at the rate of 6% per annum, plus the attorneys fees and costs which it has incurred as a result of CIR's conduct in this matter. C?? Samuel L. An es Attorney for Defendant Supreme Court ID 17225 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unworn falsification to authorities). Date: Q CAPITAL PLAZA ASSOCIATE , by G ARE DiCARLO t , COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, and ROTHMAN SCHUBERT AND REED REALTORS, LLC d/b/a RSR REALTORS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. CAPITAL PLAZA ASSOCIATES, Defendant NO. 2009-2724 ORDER OF COURT AND NOW this day of y V 1 7 : , 2011, upon consideration of the attached Petition, a Rule is hereby issued upon the Plaintiffs, to show cause, if any they have, why the petition should not be granted. Said Rule shall be returnable o days from the date of service upon counsel for Plaintiffs. BY THE COURT, rc 'ma'r= f vT ; ; ? j- i Distribution: 'Jeffrey C. Clark, Esquire (Attorney for Plaintiff) Wix, Wenger & Weidner 508 North Second Street, P.O. Box 845, Harrisburg, PA 17108-0845 Robert Knupp, Esquire (Attorney for Plaintiff) mojo 407 North Front Street, Harrisburg, PA 17108 Copies '' t/ _5-411 Samuel L. Andes, Esquire (Attorney for Defendant) 525 North 12 th Street, P.O. Box 168, Lemoyne, PA 17043 a . r. FILED-OFFICE O THE PROTHONOTARY 2011 JUL -8 PH 2: 03 CUMBERLAND CULINT',' PENNSYLVANIA COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, and ROTHMAN SCHUBERT AND REED REALTORS, LLC d/b/a RSR REALTORS, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CAPITAL PLAZA ASSOCIATES, Defendant CIVIL ACTION - LAW NO. 2009-2724 PETITION TO AMEND ANSWER AND NEW MATTER TO RAISE DEFENSE OF RECOUPMENT AND NOW comes Capital Plaza Associates, the Defendant in the above matter, by its attorney, Samuel L. Andes, and petitions the court for leave to amend its pleadings in this matter, based upon the following: 1. The Petitioner herein is the original Defendant. The Respondents herein are the original Plaintiffs. 2. Plaintiffs filed their Complaint in this matter on 3 March 2010. Thereafter, on 6 April 2010, Defendant filed an Answer with New Matter. 3. Defendant has investigated this matter and determined that it has a right of recoupment against Plaintiff Commercial-Industrial Realty Company d/b/a NAI CIR ("CIR"), for a breach of that company's fiduciary duty as Defendant's real estate agent. 4. The factual basis for Defendant's defense of recoupment was raised in the New Matter Defendant originally filed to Plaintiffs' Complaint. Defendant now seeks to identify and raise formally the claim of recoupment based upon the facts set out in Defendant's New Matter and in the proposed Amended Answer and New Matter which are attached hereto. 5. Prior orders in this matter have been entered by the Honorable J. Wesley Oler, Jr. 6. Plaintiffs, through their counsel have indicated that they do not concur in the relief requested in this Petition. WHEREFORE, Defendant prays this court to grant it leave to amend its Answer and New Matter to add the defense of recoupment. Sa el L. Andes Attorney for Defendant Supreme Court ID 17225 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). CAPITAL PLAZA ASSOCIATES, by Date: _ i? t: ZG N ?. 1 GASOARE DiCARLO COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, and ROTHMAN SCHUBERT AND REED REALTORS, LLC d/b/a RSR REALTORS, Plaintiffs VS. CAPITAL PLAZA ASSOCIATES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2009-2724 DEFENDANT'S AMENDED ANSWER AND NEW MATTER AND NOW comes the above-named Defendant, by its attorney, Samuel L. Andes, and makes the following Amended Answer, with New Matter, to Plaintiffs' Complaint: 1. The averments set forth in Defendant's original Answer, including Paragraphs 1 through 39, are incorporated herein by reference. WHEREFORE, Defendant prays this Court to dismiss Plaintiffs' Complaint and enter judgment in this matter for Defendant. NEW MATTER By way of further answer, Defendant avers the following New Matter: 2. The averments set forth in Paragraphs 40 through 45 of the New Matter in Defendant's original Answer and New Matter are incorporated herein by reference. 3. Defendant hereby adds the following paragraphs to its original Answer and New Matter: 46. NAI CIR failed to disclose or make known to Defendant the existence of the agreements which created the alleged obligation which Plaintiffs now seek to enforce. 47. NAI CIR, as Defendant's agent, had an obligation to disclose and make known to Defendant the existence of the agreements and the alleged obligations for the payment of real estate sales commissions on the property which is the subject of this litigation. 48. Because NAI CIR failed to perform its obligations and duties as an agent of Defendant, Defendant has incurred significant losses and expenses, in the form of attorney's fees and other expenses, and will continue to incur additional losses and expense in the event that Defendant is required to continue this litigation or to make payment of commissions to Plaintiffs as Plaintiffs now demand. 49. As a result of the conduct of NAI CIR, Defendant is entitled to the defense of recoupment and to recoup from NAI CIR any losses it incurs in this action as a result of the failures of NAI CIR. 50. The averments set forth in Paragraphs 46 through 49 of Defendant's original New Matter, now renumbered as Paragraphs 51 through 54, are incorporated herein by reference. WHEREFORE, Defendant prays this Court to dismiss Plaintiffs' Complaint and to enter judgment in favor of Defendant in this matter or, in the alternative, to enter judgment against Plaintiff NAI CIR as recoupment for any losses suffered by Defendant as a result of this litigation. Sam I L. Andes Attorney for Defendant Supreme Court ID 17225 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). CAPITAL PLAZA ASSOCIATES, by 11 ? f Date: .,lt'',' a yam' / °? GA? S I rAR' E D'iCARLO I COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, and ROTHMAN SCHUBERT AND REED REALTORS, LLC d/b/a RSR REALTORS, Plaintiffs VS. CAPITAL PLAZA ASSOCIATES, Defendant ORDER OF COURT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2009-2724 AND NOW this IJ l day of ? U L1 , 2011, upon consideration of the attached Petition, a Rule is hereby issued upon the Plaintiffs, to show cause, if any they have, why the petition should not be granted. Said Rule shall be returnable :? () days from the date of service upon counsel for Plaintiffs. J. Distribution: Jeffrey C. Clark, Attorney for Plaintiff, P.O. Box 845, Harrisburg, PA 17108-0845 /Robert Knupp, Attorney for Plaintiff, 407 North Front Street, Harrisburg, PA 17108 >/ Samuel L. Andes, Attorney for Defendant, P.O. Box 168, Lemoyne, PA 17043 fl, ?, rn?; l Pd 7/ 13 /ll r, . C ter-- ? ?: C= 2°: ` y --.f CJ? BY THE COURT, COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, and ROTHMAN SCHUBERT AND REED REALTORS LLC d/b/a RSR REALTORS, Plaintiff V. CAPITAL PLAZA ASSOCIATES, Defendant IN THE COURT OF COMMON PLEATS, ,_ , P CUMBERLAND COUNTY, PENNSYEVANIA? NO. 09-2724 . E3 : CIVIL ACTION -LAW RESPONSE TO DEFENDANT'S PETITION TO AMEND ANSWER AND NEW MATTER TO RAISE DEFENSE OF RECOUPMENT AND NOW, come Plaintiff, Commercial-Industrial Realty Company, and files this Response to Defendant's Petition to Amend Answer and New Matter to Raise Defense of Recoupment, stating as follows: Statement of Opposition Defendant's Petition should be denied because (1) the defense is not actually for recoupment, and is only termed so in order to get around the fact that the claim is barred by the statute of limitations; and (2) though termed as "defense," the amendment is actually an affirmative action against NAI CIR, and is therefore barred by the statute of limitations. Defendant first filed a Petition To Amend Answer and New Matter to Add Counterclaim for breach of fiduciary duty. NAI CIR filed a Response, raising the statute of limitations. A copy of Defendant's Petition and the Response are attached hereto as Exhibits "A" and "B." Likely because Defendant's counsel realized that the statute of limitations barred the counterclaim, Defendant filed this Petition to raise the defense of 1 recoupment. Importantly, the first Petition and this Petition are nearly identical but for the fact that Defendant now characterizes it as a defense for recoupment rather than a counterclaim for breach of fiduciary duty. However, the bases are virtually identical. In essence, Defendant is calling its defense "recoupment," but it is nothing more than the breach of fiduciary counterclaim re-characterized to get around the statute of limitations. The main case setting forth and explaining recoupment is Household Consumer Discount Company v. Vespaziani, 490 Pa. 209, 415 A.2d 689 (1980). In this case, the Pennsylvania Supreme Court explained recoupment as follows: Under it a defendant is entitled to claim, by way of deduction, all just allowances or demands, accruing to him in respect of the same transaction that forms the ground of the action. This is not a set-off in the strict sense, because it is not in the nature of a cross demand, but rather it lessens or defeats any recovery by the plaintiff. It goes to the existence of plaintiff's claim, and is limited to the amount thereof .... It is a doctrine of an intrinsically defensive nature founded upon an equitable reason, inhering in the same transaction, why the plaintiff's claim in equity and good conscience should be reduced. Id. at 219, 415 A.2d 689. The defining characteristic of the defense of "recoupment" is that "[r]ecoupment differs from setoff mainly in that the claim must grow out of the identical transaction that furnishes the plaintiff's cause of action and, being in the nature of a claim of right to reduce the amount demanded, can be had only to the extent sufficient to satisfy the plaintiff's action." Id. Essentially, and typically, recoupment applies when the defendant to a breach of contract claim seeks to recover for overpayments, to reduce the claim of the plaintiff. See e g. Bull v. United States, 295 U.S. 247, 55 S.Ct. 695 (defense of recoupment for taxes paid in excess of actual liability in suit for additional tax due); Kline v. Blue Shield of Pennsylvania, 383 Pa.Super. 347, 2 556 A.2d 1365 (1989) (defense of recoupment for previous overpayment in suit for withheld fees); Commonwealth v. Berks County, 364 Pa. 447, 72 A.2d 129 (1950) (defense of recoupment for costs of maintaining insane persons in institution in suit for cost for maintenance of criminally insane in institution)). Here, Defendant does not seek recoupment for overpayments made to Plaintiff, NAI CIR. In point of fact, Defendant has not paid NAI CIR anything and Defendant's proposed Amended Answer with New Matter makes no claim that Defendant is entitled to recoupment because it has overpaid Plaintiff. Accordingly, the defense raised is not actually "recoupment." As aforesaid, Defendant is simply calling it recoupment in order to get around the statute of limitations that bars any amendment that raises an counterclaim against Plaintiff. Moreover, a defense of "recoupment" goes only to the existence of plaintiff's claim, and is limited to the amount thereof. See Household Consumer, 490 Pa. 209, 415 A.2d 689. Defendant's proffered defense, however, seeks recovery of attorneys' fees, expenses, and other additional losses, and, thus, is not limited to the claim of NAI CIR (importantly, Defendant already raised a set-off defense). Defendant's Petition to Amend Answer should also be dismissed because it seeks to raise an affirmative action against NAI CIR, and is barred by the statute of limitations. Defendant's "defense" actually seeks affirmative recovery for attorneys' fees, costs, and "other expenses" and "losses". Under Household Consumer, an affirmative action for recoupment is subject to a statute of limitations defense: "[recoupment] is available as a defense, although as an affirmative cause of action it may be barred by limitation." Household Consumer, 490 Pa. at 219, 415 A.2d 689. The 3 Supreme Court also cited a 7th Circuit case with approval, which dismissed a "recoupment" counterclaim filed in a foreclosure action because the statute of limitations had run - the debtors in that action were seeking "affirmative" damages and not a mere reduction in their loan obligation, and accordingly it was not recoupment. Household Consumer, 490 Pa. at 220, 415 A.2d at 695 (citing Basham v. Finance American Corp., 583 F.2d 918 (7th Cir. 1978)). Because Defendant is seeking affirmative damages, the petition to amend must be denied on the basis of statute of limitations. Pursuant to the Pennsylvania Supreme Court holding in Hoare v. Bell Tel. Co., 509 Pa. 57 (1985), the Petition must be denied: "[w]here the statute of limitations has run, amendments will not be allowed which introduce a new cause of action ... " Id. at 59. Answers 1. Admitted. 2. Admitted. 3. Denied. No investigation revealed a right of recoupment claim for breach of fiduciary duty. The claim for breach of fiduciary duty had been known to Defendant and its counsel as of no later than April 8, 2009. 4. It is admitted only that Defendant seeks to raise the claim of recoupment. 5. Admitted. 6. Admitted. 4 WHEREFORE, Plaintiffs respectfully request that this Honorable Court deny the Petition. Date: PljI Respectfully submitted, WIX, WENGER & WEIDNER By: Jeffreice C k, I . D. # 89277 508 Se and Street Post Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Commercial-Industrial Realty Company COMMERCIAL-INDUSTRIAL REALTY : IN THE COURT OF COMMON PLEAS, COMPANY d/b/a NAI CIR, and : CUMBERLAND COUNTY, PENNSYLVANIA ROTHMAN SCHUBERT AND REED REALTORS LLC d/b/a RSR REALTORS, Plaintiff V. : NO. 09-2724 CAPITAL PLAZA ASSOCIATES, Defendant CIVIL ACTION -LAW CERTIFICATE OF SERVICE I hereby certify that the foregoing Response to Defendant's Petition to Amend Answer was sent by first class mail, postage prepaid this day to the following: Samuel L. Andes, Esquire 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 Robert L. Knupp, Esquire Knupp Law Offices, LLC 407 North Front Street Post Office Box 630 Harrisburg, PA 17108-0630 Respectfully Submitted, r & Weidne Date: t Wtol\ .dula' Cribbenj Paralegal 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff, Commercial-Industrial Realty Company 6 EXHIBIT "A" FILED-OFFICE CAF TH_ PR0TEi0'?OTIVI? i` 2011 SAY -2 AM 10: 0c CCUMBERLAI4J COUr` ',' PENNSYLVAtl A COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, and ROTHMAN SCHUBERT AND REED REALTORS, LLC d/b/a RSR REALTORS, Plaintiff vs. CAPITAL PLAZA ASSOCIATES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2009-2724 PETITION TO AMEND ANSWER AND NEW MATTER TO ADD COUNTERCLAIM AND NOW comes Capital Plaza Associates, the Defendant in the above matter, by its attorney, Samuel L. Andes, and petitions the court for leave to amend its pleadings in this matter, based upon the following: 1. The Petitioner herein is the original Defendant. The Respondents herein are the original Plaintiffs. 2. Plaintiffs filed their Complaint in this matter on 3 March 2010. Thereafter, on 6 April 2010, Defendant filed an Answer with New Matter. 3. Since the filing of its Answer and New Matter, Defendant has investigated the matter further and determined that it has a claim against the Plaintiff Commercial-Industrial Realty Company d/b/a NAI CIF, for a breach of that company's fiduciary duty as Defendant's real estate agent. 4. Although Defendant raised, in its New Matter, the factual basis of its claim that Commercial-Industrial Realty Company d/b/a NAI CIR, as Defendant's agent, failed to disclose the obligations which Plaintiffs now seek to enforce, it did not raise a counterclaim against Commercial-Industrial Realty Company d/b/a NAI CIR. 5. Defendant now seeks to raise that claim against Commercial-Industrial Realty Company d/b/a NAI CIR so that, in the event that any award is entered against Defendant and in favor of Rothman Schubert and Reed Realtors, LLC d/b/a RSR Realtors, the other Plaintiff, Defendant can recoup that claim from Commercial-Industrial Realty Company d/b/a NAI CIR, for its breach of its duty to Defendant. 6. To clarify this matter, Defendant wishes to amend its Answer and New Matter by adding the Counterclaim which is attached hereto and marked as EXHIBIT A. 7. Prior orders in this matter have been entered by the Honorable J. Wesley Oler, Jr. 8. Plaintiffs, through their counsel have indicated that they do/do not concur in the relief requested in this Petition. WHEREFORE, Defendant prays this court to grant it leave to amend its Answer and New Matter to add the attached Counterclaim to the pleadings in this matter. Samuel L. Andes Attorney for Defendant Supreme Court ID 17225 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unworn falsification to authorities). CAPITAL PLAZA ASSOCIA y Date: ?3 3 GA ARE DiCARLO COMMERCIAL-INDUSTRIAL REALTY ) COMPANY d/b/a NAI CIR, and ) ROTHMAN SCHUBERT AND REED } REALTORS, LLC d/b/a RSR REALTORS, ) Plaintiff ) VS. ) CAPITAL PLAZA ASSOCIATES, ) Defendant ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2009-2724 COUNTERCLAIM OF DEFENDANT AGAINST PLAINTIFF COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR AND NOW comes the above-named Defendant, by its attorney, Samuel L. Andes, and makes the following counterclaim against Commercial-Industrial Realty Company d/b/a NAI CIR, based upon the following: 1. The party making this counterclaim is the Defendant Capital Plaza Associates ("Capital"). 2. Capital asserts its claim against one of the original Plaintiffs in this matter, Commercial-Industrial Realty Company d/b/a NAI CIR ("CIR" ). 3. Plaintiffs' claim arises out of a series of real estate transactions in which Plaintiffs claim they became entitled to the payment of certain commissions for their services in arranging tenants for a property in Lower. Allen Township (the "Property"). 4. Capital purchased the Property from the prior owner who had entered into the real estate commission agreements with Plaintiffs.. Plaintiffs claim that, pursuant to the agreements signed between that prior owner and Capital, Capital became obligated to pay the commissions arising out of the agreements between Plaintiffs and the prior owner. 5. At the time Capital purchased the Property from the prior owner, Capital was not aware of the commission arrangements or obligations. 6. In the transaction in which Capital purchased the Property from its prior owner, Capital was represented by CIR as Capital's agent in the transaction. 7. CIR, by virtue of the very agreements on which they have commenced this action, was aware, or should have been aware, of the real estate commissions they now seek to collect and the agreements which they claim entitled them to those real estate commissions. Capital believes that CIR and its representatives were aware of such obligations or claims at the time that CIR represented Capital in the purchase of the Property. 8. CIR failed to disclose or make known to Capital the existence of the agreements which create the alleged obligation which Plaintiffs now seek to enforce. 9. CIR, as an agent of Capital, had an obligation to disclose and make known to Capital the existence of the agreements and the alleged obligations for the payment of real estate sales commissions on the Property. 10. Because CIR failed to perform its obligations and duties as an agent to Capital, Capital has incurred significant losses and expenses, in the form of attorneys fees and may incur additional losses in the event that Capital is required to make payment of commissions to Plaintiffs as Plaintiffs now demand. 11. CIR, by its conduct, and by its failure to perform its fiduciary duty to Capital to disclose to Capital the real estate commission obligations, has injured Capital. WHEREFORE, Capital Plaza Associates demands judgment against Commercial- Industrial Realty Company d/b/a NAI CIR for all damages or sums it becomes obligated or required to pay to Plaintiffs in this action, plus pre judgment and post judgment interest on said sum at the rate of 6% per annum, plus the attorneys fees and costs which it has incurred as a result of CIR's conduct in this matter. Samuel L. An es Attorney for Defendant Supreme Court ID 17225 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unworn falsification to authorities). Date: w CAPITAL PLAZA ASSOCIATE , by G i401-/ E DiCARLO EXHIBIT "B" COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, and ROTHMAN SCHUBERT AND REED REALTORS LLC d/b/a RSR REALTORS, Plaintiff V. CAPITAL PLAZA ASSOCIATES, Defendant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA mco i" z: ;a N? N O w -^ NO. 09-2724 Z - (7 "? CD n _.,. w .., CIVIL ACTION -LAW U RESPONSE TO DEFENDANT'S PETITION TO AMEND ANSWER AND NEW MATTER TO ADD COUNTERCLAIM AND NOW, come Plaintiff, Commercial-Industrial Realty Company, and files this Response to Defendant's Petition to Amend Answer and New Matter to Add Counterclaim, stating as follows: Statement of Opposition Defendant's Petition should be denied for the following reasons: (1) the new breach of fiduciary duty cause of action that Defendant now seeks permission to assert is barred by the statute of limitations; and (2) undue prejudice will result from the filing of a counterclaim at this late date. First, Defendant seeks to file a new cause of action for breach of fiduciary duty. The statute of limitations for this claim is two years. See Brodie v. Morgan, Lewis & Bockius, 70 Pa. D. & C. 4th 240 (Phila. Cty. 2005); Koken v. Colonial Ins. Co., 885 A.2d 1078 (Pa. Commw. Ct. 2010); 42 Pa.C.S. § 5524. The breach of fiduciary claim is not a newly discovered one. As Defendant points out, the "factual basis of its claim" for breach of fiduciary duty has been raised in 1 its Answer (meaning that it was not uncovered through discovery). See Petition to Amend, ¶ 4. Moreover, there was extensive communication prior to the filing of the Complaint wherein Defendant's prior counsel threatened to file a claim against Plaintiff for the alleged breach of fiduciary duty. Attached as Exhibit "A" and incorporated by reference are those communications. The first letter is dated March 5, 2009, and is from the undersigned to Defendant's prior counsel, William C. Malkames, Esquire. The letter outlines the claims that both NAI CIR and RSR Realtors have for a commission. On April 8, 2009, Attorney Malkames responded on behalf of his client and alleged that his client was not informed of the commission obligation (the basis of the breach of fiduciary claim). Moreover, he states that any action filed against his client would be defended on the basis that NAI CIR allegedly withheld the information or failed to use reasonable diligence (i.e., breach of fiduciary duty). Lastly, Attorney Malkames warned that if NAI CIR and/or RSR sued Defendant, then NAI CIR would be sued in return. In summation, Defendant and its counsel believed, no later than April 8, 2009, that it had a claim against NAI CIR for breach of fiduciary duty and had threatened one. The Petition to Amend at issue was filed on May 2, 2011, more than two years later. Pursuant to the Pennsylvania Supreme Court holding in Hoare v. Bell Tel. Co., 509 Pa. 57 (1985), the Petition must be denied: "Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action ... " Id. at 59. Secondly, the Petition should be denied because the action was initiated more than one year ago, the parties have performed discovery, and taken depositions of all 2 (or nearly all) relevant parties. It would cause unfair prejudice to NAI CIR to add a new cause of action to the proceedings, which would entail further discovery and delay. Answers 1. Admitted. 2. Admitted. 3. Denied. No investigation revealed a claim for breach of fiduciary duty. The claim had been known to Defendant and its counsel as of no later than April 8, 2009 and had been threatened then as set forth in more detail in the statement above. 4. Admitted. 5. It is admitted only that Defendant seeks to file a claim against NAI CIR. 6. Admitted. 7. Admitted. 8. Admitted that the undersigned does not concur in the relief requested. WHEREFORE, Plaintiffs respectfully request that this Honorable Court deny the Petition. Date: Respectfully submitted, WIX, WENGER &MEIDNER By: I Jeffrey Pice I .D. # 89277 508 No econd Street Post O Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Commercial-industrial Realty Company 3 COMMERCIAL-INDUSTRIAL REALTY : IN THE COURT OF COMMON PLEAS, COMPANY d/b/a NAI CIR, and : CUMBERLAND COUNTY, PENNSYLVANIA ROTHMAN SCHUBERT AND REED REALTORS LLC d/b/a RSR REALTORS, Plaintiff V. NO. 09-2724 CAPITAL PLAZA ASSOCIATES, Defendant CIVIL ACTION -LAW CERTIFICATE OF SERVICE I hereby certify that the foregoing Response to Defendant's Petition to Amend Answer was sent by first class mail, postage prepaid this day to the following: Samuel L. Andes, Esquire 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 Robert L. Knupp, Esquire Knupp Law Offices, LLC 407 North Front Street Post Office Box 630 Harrisburg, PA 17108-0630 Ily Submitted, Wix, \/Venger Date: ?IIZ?II Sy:' - Paula Cribben, Paralegal 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff, Commercial-Industrial Realty Company 4 WIX, WENGER & WEIDNER A PROFESSIONAL CORPORATION RICHARD H. WIX ATTORNEYS AT LAW STEVEN C, WILDS 5D8 NORTH SECOND STREET THERESA L SHADE WIX - DAVID R. GETZ POST OFFICE BOX 845 . STEPHEN J. DZURANIN HARRISBURG, PENNSYLVANIA 17108-0845 JEFFREY G CLARK PETER G. HOWLAND Also kiiw ftl M3532chu efts Bar (717) 234-4182 FAX (717) 234-4224 www.wwwpalaw.com March 5, 2009 William G. Malkames, Esquire Malkames Law Offices 509 Linden Street Allentown, PA 18101 THOMAS L WENGER DEAN A. WEIDNER ROBERT C. SPITZER Of Counsel Suburban Office: 4705 DUKE STREET HARRISBURG, PA 17109-3041 (717) 652-3455 RE: NAI CIR and RSR Realtors- Capital Plaza Associates • 340.1 Hartzdale Drive,.Camp Hill,.PA N.Q.: OurFFile: Dear.?tilr..Mallca• es: `'..:i:.. - . • . .:..._ `;-:. _. =i?:• ;`:;. ?., ._ _ .. _ ., ... . We write in Yelation to your client; Capital Plaza'Associates, and ;6 property known as.3401, Hartzdale Drive, Camp Hill, Pennsylvania. Please confirm that Capital Plaza remains your client at this time. On or about March 22, 2002, NAI CIR entered into a lease commission with Barry Pagliaro for commercial space (approximately 3,600 square feet) located at 3401 Hartzdale Drive.. This space was ultimately leased.to Global Video as expansion space on or about Septemlae.r12>20.022..Because_RS.RRealtoc,%- .as,:.the...existing..agent.for......__... Global.Video, they are the co=brokerfor this lease. W.'Pagliaro, from inception-of the lease through May, 2004, dutifully paid each commission invoice. By virtue of your client's purchase of the property, it became the party responsible to pay the lease commission. In fact, the agreement between your client and Pagliaro• specifically so, provided..:. Your client has failed to pay the May 1'5,`2005, invoice and all subsequent i?voicesjor,the,cgmmissions owed. The listing contract requires payment of an 8% commi'ssionrand a 6% commission for renewals. Accordingly, demand is hereby made for $12,921.45, (commissions owed to. present). Additionally, we demand confirmation that Capital Plaza. Will pay futur6 commissions upon receipt of invoices for the same, WIX, WENGER & WEIDNER William G. Malkames, March 5, 2009 Page 2 Esquire We note that you have previously opined that your client was not aware of the commission obligation. However: (1) we have been informed that the information was provided to Bill McCall, your client's agent; and (2) Mr. Pagliaro's alleged failure to inform your client of this obligation does not affect our client's, and RSR's, right to be paid. If your client refuses to pay, NAI CIR and RSR Realtors will bring suit within twenty days from the date of this letter. Sincerely, JCCmJob cc: Robert L. Knupp, Esquire Mr. Robin Zellers Wix, Wen er eidner By: Jeffr ark 1 AT-IrA Lsw Q r?S 5oo E.nmzw STsxzr PA_ IM01-14M w*3 • T•M a Mar E MEi; -2 (610) M-8327 DELMN Y1A Y av Rc FAX {610) 821-sssi Vvx r. " XWEr MA r a?* ES lE-XAn.: m)wf[tce tie April €l, 2009 WK Wenger & Weidner Attn: Jeffrey C..Clark, Esquire 548 North Second Street P.O. Box 845 Harrisburg, PA 17108-OW Re: W. CIR and RSR Realtors - Capital Plaza Associates 3401 Harizdale Drive, Camp HUI, PA Our Fide No.: 1627-14986 Dear Mr. Claris I discussed your letter of March 55, 2009 with Gaspare DiCado of Capital Plaza Associates concerning the claim of your clierrts, NAI CIR and RSR Realtors, for a commission with respect to the Global Video lease. Your letter states that the iriforrnation with respect to this claim for commission was "provided to Bill McCall, your client's anenf°_ I am sure that you realize that NAI CIR was the agent for the Seiler (not Capital Plaza Associates) and that NAI CIR was paid a commission by-the Seller. NAl CIR was represented at all times is this snag -by ils agent 871 Mill who has confkmed to Mr. DiCadc that he was not aware of this cdakn fbr comrrfiss and that he never advised Mr. Dicado of this claim for corr mission Mr. McCal did advise Mr. DiGarto of odw rental commissions which Capital Plaza has paid aid which it continues to pay on a regular basis': I am enclosing a copy of a May 24, 2007 letter which NAI CIR received from RSR which acknowledges that Capital Plaza "were not told of our leasing o Dmmission, due each June, until 2028." Under the cireiu=tances, we will defend any snit filed by NA1 CIR andfoE € on all available legal bases including but not w rifted to the fact that NAI CIR effiw withheld this lrifonoation from our client or failed to use reasonable diligence to discover any arrangernent which the previous owner had with RSR. If NAI CIR an€dfor RSR sue Gapr'tal Plaza, we YAD loin bof€a N A.1 CI12 and the Seller as additional defertdaitts. Please advise. Very truly yours, William G. Malkames WGM/ims By E-mail and Facsimile Aftachrnent(s) cc.. Gaspare DiCarlo, by e-mail (wtonc L) Mar 18 as 01:02P P. 2 copy RSRREALTORS® 3 Lemoyne Drive, subs l00 18y 24, 20Q7 Lemoyne, PA 17043 Photo (717) 763-2212 Mr. Robin Zellers Fax (717) 763-1656 NAI/CIR 10I511unma Drive WormleyAurg, PA 17043 Re: 3442 HmtzMe Drive Dear Rabin: On September 22, 20021 leased the 36M square feet adjoining (Robal video's mnW* space. The fisting agent was I& Ma&ff ay of your office . Global Video mated new lease terns for add space nest to their existing unk taking 1t to 202% and this lease for the vm paralleled. I received two checim Ear our 9* tae 16,2M and kma 17, 2804, In January 2005, the owner, sold fire bvM ftto Capital Plaza Associates_ They wer not tDId of our leasing c onmt dm die each June, 2028. It is in our opinim*a NAVM is responsible to collect from either of your clients or pay us chtiy.1 expect io receive the 2083, 2WIb sad 208? paymemft by Iune 17,2M, or will t mutbis matter M r ft aftratiOn is not resolved. Si?ul f, - f P: cle Barry Psgii?ro, Capital Plaza Associates t 4<~ f ~jCTNCNOTA~' °. ?~1i2 ~l~G 30 PM 2~ 22 t~~}M~RLAND COUNTY PENN5YlVANiA COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, and ROTHMAN SCHUBERT AND REED REALTORS, LLC d/b/a RSR REALTORS, Plaintiff IN THE COURT OF CC PLEAS OF CUM~ERL~ COUNTY, PENN$YLV CIVIL ACTION -LAW vs. CAPITAL PLAZA ASSOCIATES, Defendant NO. 2009-2724 OBJECTION O CAPITAL PLAZA ASSOCIATES TO PLAINTIF'F'S INTENDED SUBPOENAS AND NOW comes the above-named Defendant, by its attorney, Samuel L. Ande objects to the Subpoena which the Plaintiffs intend to serve upon Caldwell & learns, P. the Malkames Law Office, for the following reasons: 1. Despite the language of the Subpoena, any documents produced in response Subpoena will violate Defendant's attorney-client privilege and reveal information confidential to Defendant. and '. and the is 2. Any documents provided in response to the Subpoena will violate Defendant' ~ right to the protection of his attorney's work product. Samuel L. Andes Attorney for Defendant Supreme Court ID 17225 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 (717) 761-5361 r ~ _. _ _ CERTIFICATE OF SERVICE I hereby certify that I served an original of the foregoing document upoin counsel for the Plaintiffs herein by regular mail, postage prepaid, addressed as follows: Jeffrey C. Clark, Esquire 508 North Second Street P.O. Box 845 Harrisburg, Pa 17108-0845 Date: g~aC~/ao~o~ Amy M. I~rkins Secretary for Samuel L. Andes COMMERCIAL-INDUSTRIAL REALTY COMPANY d/b/a NAI CIR, and ROTHMAN SCHUBERT AND REED REALTORS LLC d/b/a RSR REALTORS, Plaintiffs v. CAPITAL PLAZA ASSOCIATES, Defendant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLV NO.09-2724 CIVIL ACTION -LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS To: Malkames Law Office, 509 West Linden Street, Allentown, PA 18101 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all documents relating to the performance of due diligence of Capital Plaza Associates for the purchase of'real property known as 3401 Hartzdale Drive, Camp Hill, Pennsylvania from Barry! Pagliaro pursuant to a sales agreement dated July 7, 2004. Importantly, this subpoena should be understood to expressly not require any documents containing protected a'ttorney- client communications. In the context of this subpoena, "documents" shall include any electronically stored information and electronic communications, such as email and text messages. You may deliver or mail legible copies of the documents or produce things requested by this subpoena together with the cert~cate of compliance, to Jeffrey C. Clark, esquire, Wix, Wenger & Weidner, 508 North Second Street, P.O. Box 845, Harrisburg,, PA 17108. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, withiin twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING: Name: Jeffrey C. Clark, Esquire Address: Wix, Wenger & Weidner, P.C. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108 Telephone Number: (717) 234-4182 Supreme Court I.D.: 89277 Attorney for: NAI CIR BY THE COURT: Date: Prothonotary Deputy 2 COMMERCIAL-INDUSTRIAL REALTY COMPANY dlb/a NAI C1R, and ROTHMAN SCHUBERT AND REED REALTORS LLC d/b/a RSR REALTORS, Plaintiffs v. CAPITAL PLAZA ASSOCIATES, Defendant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVAN NO.09-2724 CIVIL ACTION -LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS To: Caldwell & Kearns, P.C. 3631 North Front Street, Harrisburg, PA 17110 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the foNowing documents or things: Any and all documents relating to the performance of due diligence of Capital Plaza Associates for the purchase of real property known .as 3401 Hartzdaie Drive, Camp Hill, Pennsylvania from Barry Pagliaro pursuant to a sales agreement dated July 7, 2004. Importantly, this subpoena should be understood to expressly not require any documents containing protected a~torney- client communications. In the context of this subpoena, "documents" shall include any electronically stored information and electronic communications, such as email and text messages. You may deliver or mail legible copies of the documents or produce things requested by this subpoena together with the certificate of compliance, to Jeffrey C. Clark, Lsquire, Wix, Wenger & Weidner, 508 North Second Street, P.O. Box 845, Harrisburg, PA 17108. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING: Name: Jeffrey C. Clark, Esquire Address: Wix, Wenger & Weidner, P.C. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108 Telephone Number: (717) 234-4182 Supreme Court I.D.: 89277 Attorney for: NAI CIR BY THE COURT: Date: Prothonotary Deputy 2