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HomeMy WebLinkAbout09-3558John G Milakovic, Esquire Attorney No. 34843 Charles O. Beckley, II, Esquire Attorney No. 47564 BECKLEY & MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 DAVID E. RICKER, : IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. THOMAS J. AHRENS and AHRENS LAW LAW FIRM, P.C., Defendants CIVIL ACTION -LAW NO. QQ- 35s8 1..1u?? : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 John G Milakovic, Esquire Attorney No. 34843 Charles O. Beckley, II, Esquire Attorney No. 47564 BECKLEY & MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 DAVID E. RICKER, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. THOMAS J. AHRENS and AHRENS LAW LAW FIRM, P.C., Defendants CIVIL ACTION -LAW NO. 4 9 - 5( ?cw•, JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiff, David E. Ricker, who, by and through his attorneys, John G. Milakovic, Esquire, Charles O. Beckley, II, Esquire, and Beckley & Madden, of Counsel, files this Complaint, and in support thereof avers as follows: PARTIES 1. Plaintiff is David E. Ricker ("Ricker"), an adult individual who maintains a place of business at 325 Eastern Drive, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant Thomas J. Ahrens ("Ahrens") is an adult individual and an attorney licensed to practice law in the Commonwealth of Pennsylvania. Ahrens resides at 3017'/2 Dickinson Avenue, Camp Hill, Cumberland County, Pennsylvania 17011, and maintains a place of business at 52 Gettysburg Pike, Mechanicsburg, Cumberland County, Pennsylvania 17055. 1 3. Defendant Ahrens Law Firm, P.C. ("Ahrens Law), is a Pennsylvania professional corporation, which maintains offices at 52 Gettysburg Pike, Mechanicsburg, Cumberland County, Pennsylvania. Upon information and belief, Ahrens is both an officer and an employee of Ahrens Law. BACKGROUND FACTS 4. In November, 2008, while Ricker and Jeffrey Mealey, one of Ricker's business partners, were traveling outside of the Commonwealth, they spoke to Ahrens by cell phone. They asked him to do legal work for them in connection with the development of a laser-guided hunting bow with built-in rangefinder. Ahrens agreed, and subsequently an attorney at Ahrens Law prepared a Nondisclosure Agreement for Ricker and Mealy and outside parties, and arranged a meeting for them with patent counsel. 5. During the cell phone call, Ahrens also spoke with Ricker and Mealy about a possible investment opportunity. The deal Ahrens described involved the purchase of gold. Ahrens indicated that the investment guaranteed a 100-percent profit and presented no risk, because the funds Ricker invested would be secured by a note and a mortgage on real property. 6. When he returned to Pennsylvania, Ricker contacted Ahrens about the investment opportunity. Ahrens told him that the investment which promised a 100-percent return was fully-subscribed, but that another opportunity existed which would guarantee a 50-percent return. Ahrens again represented that the deal presented no risk. The funds which Ricker invested would be secured by a note and a mortgage on real property. When gold hit its "target number" the deal would be "locked" and the funds would be paid to the investors. Ahrens told Ricker, however, that he had to meet with him the next day or the deal might be lost. 2 7. On December 10, 2008, Ricker caused $400,000.00 to be wire transferred from his account at Citigroup into Ahrens Law's account. Ricker then went to Ahrens' office at Ahrens Law on December 10, 2008, and met with Ahrens. 8. During their meeting, Ahrens explained to Ricker that Ahrens would transfer Ricker's $400,000.00 into the account of Alfred L. Madeira ("Madeira"), of Chambersburg, Franklin County, Pennsylvania, and that Madeira would then transfer the funds into an account maintained by Sean Healy ("Healy") in Florida. Healy would then make the investment. Ahrens showed Ricker a document which Ahrens represented to be a statement for one of Healy's trading accounts, which indicated that the account had a balance of in excess of $79,000,000.00. Ahrens also allegedly spoke to Madeira twice by telephone in Ricker's presence. 9. At the meeting at Ahrens Law Ahrens executed on Madeira's behalf a Note, dated December 11, 2008, in favor of Ricker. Ahrens claimed to have a power of attorney issued to him by Madeira which authorized him to sign documents on Madeira's behalf. According to the terms of the Note, Madeira agreed to pay to Ricker, on or before March 31, 2009, the principal sum of $400,000.00, plus "total fees and interest of Two Hundred Thousand Dollars ($200,000.00)," or a total amount of $600,000.00. (Note, p. 1) A copy of the December 11, 2008 Note is attached hereto as Exhibit A. 10. Ahrens later substituted a new Note, dated December 17, 2008, for the December 11, 2008, Note executed by Ahrens on Madeira's behalf. The new December 17, 2008, Note was allegedly signed by Madeira himself. The December 17, 2008, Note refers to, but does not specifically identify, "Mortgaged Property," and has attached to it a description of real property in Monroe Township, Cumberland County, Pennsylvania. A copy of the December 17, 2008, Note is attached hereto as Exhibit B. 3 I 1. Ahrens also provided to Ricker a Mortgage ("the Ricker Mortgage") dated December 17, 2008, executed by Madeira on behalf of Madeira Operations, LLC ("Madeira Operations"), a Pennsylvania limited liability company, in favor of Ricker, on two parcels of real property in Monroe Township, Cumberland County, Pennsylvania (`the Property"). A copy of the Ricker Mortgage is attached hereto as Exhibit C. Ahrens, in his capacity as a notary public, acknowledged Madeira's signature on behalf of Madeira Operations on the Ricker Mortgage. A notation appearing on the upper left hand corner of the Mortgage's first page directs the Recorder to return the Mortgage to Ahrens Law after recording. 12. Because Ahrens had agreed to represent Ricker and Mealey in connection with the laser-guided bow, and because Ricker on several occasions had spoken with Ahrens concerning estate planning matters, at the December 10, 2008, meeting with Ahrens at Ahrens Law, and at all times thereafter, Ricker believed that Ahrens was representing Ricker's interests in the transaction with Madeira. Ahrens did nothing to dispel this impression. He prepared the Notes and the Ricker Mortgage and provided them to Ricker. He did not advise Ricker to have the Notes and the Ricker Mortgage reviewed by independent counsel, nor did Ahrens ever indicate that he did not represent Ricker in the transaction. Ahrens directed Ricker to transfer the $400,000.00 into Ahrens Law's account, instead of directly to Madeira. 13. Ahrens told Ricker that the Note and the Ricker Mortgage would secure the repayment of Ricker's $400,000.00. Ahrens knew, or should have known, this statement to be false, however, particularly with regard to the Mortgage, because when Madeira executed the Ricker Mortgage Ahrens knew that the Property was already subject to three other mortgages. 14. First, on August 15, 2006, Madeira Operations granted an Open-End Mortgage on the Property to The First National Bank of Mercersburg ("the Mercersburg I Mortgage"), in the 4 principal amount of $700,000.00, which was recorded in the Cumberland County Recorder of Deeds' Office on August 16, 2006, in Mortgage Book 1962, Page, 2811, and re-recorded on October 20, 2006, in Mortgage Book 1970, Page 273. Madeira executed the Mercersburg I Mortgage on behalf of Madeira Operations. Ahrens' father, Judd M. Ahrens, a notary public and an officer and employee of Ahrens Law, acknowledged Madeira's signature on the Mercersburg I Mortgage. 15. On May 31, 2007, Madeira Operations issued a second mortgage on the Property to The First National Bank of Mercersburg ("the Mercersburg II Mortgage"), in the principal amount of $450,000.00, which was recorded in the Cumberland County Recorder of Deeds' Office on June 1, 2007, in Mortgage Book 1994, Page 1576. Again, Madeira executed the Mercersburg II Mortgage on behalf of Madeira Operations and, again, Judd Ahrens acknowledged Madeira's signature. 16. Finally, on December 15, 2008 -just two days before executing the Ricker Mortgage - Madeira Operations gave a mortgage on the Property to Angela Hickey ("the Hickey Mortgage"), in the principal sum of $590,000.00. Ahrens himself acknowledged Madeira's signature on the Hickey mortgage. The Hickey mortgage was recorded in the Cumberland County Recorder of Deeds' Office on March 29, 2009, as Instrument Number 200908665. 17. In summary, prior to granting the Ricker Mortgage to Ricker on December 17, 2008, Madeira Operations had already granted three previous mortgages on the Property - the August 15, 2006, Mercersburg I Mortgage ($700,000.00); the May 31, 2007, Mercersburg II Mortgage ($450,000.00; and the December 15, 2008, Hickey Mortgage ($590,000.00) - the principal amounts of which together totaled $1,740,000.00. Upon information and belief, the total amount of these first three mortgages far exceeds the fair market value of the Property. 5 18. Upon information and belief, Ahrens knew of the existence of these three mortgages on the Property when Madeira signed the Ricker Mortgage. Ahrens did not tell Ricker about the mortgages, however, nor did Ahrens advise Ricker to have the Property's title searched before Ricker advanced the $400,000.00 to Ahrens Law, nor did Ahrens afford Ricker time to do so, since Ahrens insisted that the funds had to be transferred to Madeira immediately for the deal to close. 19. Instead, exploiting the heightened credibility that attended his status as an attorney, Ahrens told Ricker that the investment which he advised Ricker to make carried "no risk" - it was a sure thing, a "no brainer." 20. After their meeting on December 11, 2008, Ricker spoke with Ahrens periodically to monitor the progress of the investment. In February, 2009, Ahrens told Ricker that gold had "hit its mark," and that Ahrens expected an early pay-off on the investment. Ricker telephoned Ahrens again in late February, 2009, and Ahrens again indicated that gold had hit its mark and that he planned to meet with Madeira and Healy to discuss payouts on the investment. 21. During their telephone call in late February, 2009, Ahrens solicited Ricker to invest another $250,000.00, to buy more gold. Ricker refused to invest any additional funds, however, until he received the full return of his first investment. 22. On March 12, 2009, Ahrens emailed Ricker and asked Ricker to call him the next day to talk about the Ricker Mortgage. Ricker spoke by telephone with Ahrens on March 13, 2009, and Ahrens advised Ricker to record the Ricker Mortgage. That same day, Ahrens emailed to Ricker a substitute legal description of the Property subject to the Ricker Mortgage, indicating only that the original description was incorrect. Ricker telephoned Ahrens to discuss the reason for the substitute description and Ahrens suggested that Ricker contact Madeira. 6 23. Ricker telephoned Madeira. Madeira told Ricker that Madeira had negotiated a deal with Healy, pursuant to which all of the investors, including Ricker, would receive back the principal amount of their investment, but nothing more, i.e. no 50-percent profit. Ricker asked Madeira why Madeira believed that Healy would in fact return the investors' money. Madeira responded, "20 years of prison." 24. Taking Ahrens' advice, Ricker recorded the Ricker Mortgage in the Cumberland County Recorder of Deeds' Office on March 13, 2009, as Instrument Number 200907326. When he did so, he learned that the Property was already subject to three other mortgages, which together totaled $1,350,000.00. Ricker's Mortgage increased the total of the liens recorded against the Property to $1,750,000.00. (The three mortgages recorded ahead of Ricker's were the Mercersburg I and II Mortgages and a mortgage which Madeira Operations had granted to Neil Barr the previous day, March 12, 2009 ("the Barr Mortgage"), in the principal amount of $200,000.00, and which was recorded on March 12, 2009, in the Cumberland County Recorder of Deeds' Office as Instrument Number 200907326. Like the Ricker Mortgage, the Barr Mortgage contains a notation on the upper left hand corner of the first page directing the Recorder to return it to Ahrens Law. Although the Hickey Mortgage predated the Ricker Mortgage, it was not recorded until March 29, 2009, as Instrument Number 200908665.) 25. Despite repeated demands therefor, Ricker has yet to receive the return of any of his $400,000.00. 26. On April 14, 2009, Madeira filed a voluntary petition for bankruptcy under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Middle District of Pennsylvania in Harrisburg. Madeira's petition is docketed to No. 1:09-bk-02819-MDF. 7 27. Given Madeira's bankruptcy and the three mortgages which have priority over the Ricker Mortgage, the Note and the Ricker Mortgage which Ahrens prepared to secure the $400,000.00 advanced by Ricker are of no value. COUNT I - FOR PROFESSIONAL LIABILITY AGAINST AHRENS 28. Ricker hereby incorporates herein by reference as thought set forth in full the preceding Paragraphs 1-27 of this Complaint. 29. Ahrens is an attorney licensed to practice law in the Commonwealth of Pennsylvania with offices in Cumberland County, Pennsylvania. Ricker is asserting a professional liability claim against Ahrens. 30. Ahrens acted as Ricker's attorney in the transaction with Madeira and Healy by drafting the Note and the Ricker Mortgage which Ahrens said would secure the repayment of Ricker's investment. Preparation of the Note and the Ricker Mortgage was well within Ahrens' competence as an attorney. 31. Ahrens directed Ricker to transfer the $400,000.00 which was to be used to fund the transaction with Madeira into Ahrens Law's account. Ricker agreed to wire $400,000.00 into Ahrens Law's account based on Ahrens' assurances that the Note and Mortgage which Ahrens would prepare would secure the repayment of the funds advanced by Ricker. 32. Ahrens directed Ricker to come to Ahrens' law office to finalize the transaction and to obtain the documents prepared by Ahrens which would secure the repayment of Ricker's $400,000.00. 33. Ahrens never advised Ricker to obtain independent counsel, or to have independent counsel review the documents, i.e. the Note and the Ricker Mortgage, prepared by Ahrens. 8 Ahrens never indicated to Ricker that Ahrens did not represent Ricker's interests in the transaction with Madeira and Healy. 34. Ahrens conveyed the impression to Ricker, and under the circumstances it was reasonable for Ricker to believe, that Ahrens was acting as Ricker's attorney and representing Ricker's interests in the transaction with Madeira and Healy. 35. Ricker accepted and relied upon the advice and legal services provided to him by Ahrens in connection with the transaction with Madeira and Healy. 36. Ahrens failed to exercise ordinary skill and knowledge in his representation of Ricker in the transaction with Madeira and Healy when Ahrens represented to Ricker that the transaction with Madeira represented a "no risk," fully secure investment opportunity. 37. Ahrens failed to exercise ordinary skill and knowledge in his representation of Ricker in the transaction with Madeira and Healy when Ahrens failed to ensure that the documents which he drafted would in fact secure the repayment of Ricker's investment, and when he failed to advise Ricker of the three mortgages on the Property which Madeira Operations had granted to other parties before Madeira Operations executed the Ricker Mortgage. 38. Ahrens failed to exercise ordinary skill and knowledge in his representation of Ricker in the transaction with Madeira and Healy when Ahrens failed to advise Ricker to obtain an examination of the title to the Property owned by Madeira Operations before transferring $400,000.00 to Ahrens, to ensure that the Ricker Mortgage would have priority over any other liens against the Property, and when Ahrens failed to advise Ricker to obtain an examination of Madeira's and Healy's credit history. 9 39. Ahrens failed to exercise ordinary skill and knowledge in his representation of Ricker in the transaction with Madeira and Healy because the documents drafted by Ahrens failed to contain such standard provisions as a clause authorizing the confession of judgment against Madeira (the Note) or against the Property (the Ricker Mortgage), thereby rendering it more difficult and more expensive for Ricker to recover any portion of his investment in the event of a default. 40. Alternatively, Ahrens failed to exercise ordinary skill and knowledge by failing to advise Ricker to have independent counsel examine the Note and the Ricker Mortgage before Ricker wired $400,000.00 into Ahrens Law's account, and by failing to advise Ricker that Ahrens did not represent Ricker's interests in the transaction with Madeira and Healy. 41. By reason of Ahrens' negligence, as aforesaid, Ricker has suffered damage by the loss of the $400,000.00 which he advanced through Ahrens Law to Madeira and Healy. 42. The amount sought by Ricker in this action exceeds the amount required for submission of the matter to compulsory arbitration. WHEREFORE, Plaintiff, David E. Ricker, respectfully requests the Court to enter judgment in his favor and against Ahrens, and to direct Ahrens to pay to Ricker damages in the amount of $400,000.00, plus prejudgment and post judgment interest, costs of suit, and to award to Ricker such other and further general relief which the Court deems appropriate. COUNT II - PROFESSIONAL LIABILITY AGAINS AHRENS LAW 43. Ricker hereby incorporates herein by reference as thought set forth in full the preceding Paragraphs 1-27 and 29-42 of this Complaint. 10 44. Upon information and belief, when Ahrens represented Ricker in the transaction with Madeira, Ahrens was an officer and employee of Ahrens Law. 45. Upon information and belief, when Ahrens represented Ricker in the transaction with Madeira, Ahrens was acting within the scope of his employment with, and as an agent of, Ahrens Law. 46. Ahrens Law is liable for the actions of its officer, agent and employee Ahrens. 47. Consequently, Ahrens Law is liable to Ricker for the damages caused to Ricker by Ahrens while acting within the scope of his employment with Ahrens Law. WHEREFORE, Plaintiff, David E. Ricker, respectfully requests the Court to enter judgment in his favor and against Ahrens Law, and to direct Ahrens Law to pay to Ricker damages in the amount of $400,000.00, plus prejudgment and post judgment interest, costs of suit, and to award to Ricker such other and further general relief which the Court deems appropriate. COUNT III - FOR NEGLIGENT MISREPRESENTATION AGAINST AHRENS AND AHRENS LAW 48. Ricker hereby incorporates herein by reference as thought set forth in full the preceding Paragraphs 1-27, 29-42 and 44-47 of this Complaint. 49. Ahrens represented to Ricker that the investment opportunity with Ahrens, Madeira and Healy carried no risk and promised a guaranteed return. 50. Ahrens represented to Ricker that the Note and the Mortgage would fully secure the $400,000.00 which Ricker invested. 51. Ahrens represented to Ricker that Ricker would receive repayment in full of his $400,000.00 investment, plus a 50 percent profit of $200,000.00, within less than four months. 11 52. Ahrens knew, or should have known, that these representations were false. 53. Ahrens made all of these representations to Ricker in order to induce Ricker to transfer $400,000.00 through Ahrens Law's account to Madeira and Healy. 54. When Ahrens made these representations, he did so in the course of his employment, and as an officer and agent of Ahrens Law. 55. Given Ahrens' status as an attorney representing Ricker in the transaction, Ricker justifiably relied on Ahrens' representations. 56. As a direct result of his justifiable reliance on Ahrens' representations, Ricker has suffered the loss of $400,000.00. WHEREFORE, Plaintiff, David E. Ricker, respectfully requests the Court to enter judgment in his favor and against Ahrens and Ahrens Law, and to direct Ahrens and Ahrens Law to pay to Ricker damages in the amount of $400,000.00, plus prejudgment and post judgment interest and costs of suit, and to award to Ricker such other and further general relief which the Court deems appropriate. COUNT IV - FOR BREACH OF FIDUCIARY DUTY AGAINST AHRENS AND AHRENS LAW 57. Ricker hereby incorporates herein by reference as thought set forth in full the preceding Paragraphs 1-27, 29-42, 44-47 and 49-56 of this Complaint. 58. As his attorney, Ahrens owed a fiduciary duty to Ricker. 59. Ahrens breached his fiduciary duty to Ricker by making the false representations to Ricker set forth in Paragraphs 49 through 51 of this Complaint. 60. Ahrens breached his fiduciary duty to Ricker by failing to ensure that Ricker's investment of $400,000.00 was fully secured. 12 61. Ahrens breach of his fiduciary duty to Ricker caused Ricker to suffer damages in the amount of $400,000.00. 62. Ahrens breached his fiduciary duty to Ricker while acting within the scope of and during the course of his employment with Ahrens Law. WHEREFORE, Plaintiff, David E. Ricker, respectfully requests the Court to enter judgment in his favor and against Ahrens and Ahrens Law, and to direct Ahrens and Ahrens Law to pay to Ricker damages in the amount of $400,000.00, plus prejudgment and post judgment interest, costs of suit, and to award to Ricker such other and further general relief which the Court deems appropriate. Dated: May 28, 2009 submitted, Of Counsel BECKLEY & MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 ,!ftn G. Milakovic, Esquire Atto N 34843 arles O. Beckl , I s re Attorney No. 47564 Attorneys for Plaintiff David E. Ricker 13 FROM :HOTEL DIUJW DOMINICAL FAX NO. :506 27870098 May. 28 2009 05:10PM P5 1 v=FiCATION I, David E. Ricker, hereby verify that I am an adult imdMdual and that I am the Plaintiff m tbo foregoing Complaint; and that the facts set forth therein are ne to the best of my kmowledge ad information. I understand that false statements herein are made subject to the penalties of 18 Pa.C.5.14904, relating to unswom falsification to authorities. Dated: S? g David E. Ricker . Exh,?j NOTE December 11, 2008 Mechanicsburg, Pennsylvania FOR VALUE RECEIVED, Alfred L. Madeira (hereinafter referred to as the "Maker") hereby promises to pay to the order of David E. Ricker (the "Payee"), the principal sum of Four Hundred Thousand Dollars ($400,000.00) in lawful money of the United States of America. Maker hereby promises to pay total fees and interest of Two Hundred Thousand Dollars ($200,000.00) in lawful money of the United States on or before the Maturity Date as defined below in Section 1.1 of this Note. Total money returned is $600,000.00. Payment of Principal and Interest I . Principal and interest shall be payable, in lawful money of the United. States of America, at the office of the Payee or such other place as the holder of this Note may designate, in the following manner: 1.1 On March 31, 2009, all amounts owed are due in full, which is called the Maturity Date. Late Charges 2. The Maker agrees that in the event any payment shall be overdue for a period in excess of thirty (30) days, the Maker shall pay to the Payee a late charge of five percent (5%) of the amount overdue to cover the additional expense incident to delinquency. This shall not be construed to obligate the Payee to accept any overdue installment nor to limit the Payee's rights and remedies for the Maker's default as set forth in this Note. No Transfer 3. If the Maker shall, without in each instance obtaining the prior written consent of the Payee, sell, transfer, lease, or convey (herein all called "Transfer") the Mortgaged Property or any interest in it, whether voluntarily or by operation of law, then, at the option of the Payee, the maturity of this Note shall be advanced to the date of the Transfer, and the obligations of the Maker under this Note shall immediately be due and payable. For purposes of this paragraph, if the Maker is a corporation, the sale or transfer of any stock of the Maker or the issuance of additional stock of the Maker that results in a transfer of control of the Maker shall constitute a Transfer of the Mortgaged Property; if the Maker is a partnership, the sale or transfer of any partnership interest in the Maker shall constitute a Transfer of the Mortgaged Property. Events of Default 4. If the Maker fails to pay any sum when due or if the Maker shall in any other way be in default under this Note or if any certification, warranty, or representation made by the Maker to the Payee proves to be materially false, then the entire unpaid principal balance of this Note, together with interest accrued and with all other sums due or owed by the Maker under this Note shall at the option of the Payee and without notice to the Maker become due and payable immediately with interest. After the default and acceleration and until the Maker's indebtedness to the Payee is paid in full, including the period following entry of any judgment, the interest shall accrue at a rate of eight percent (8%) per year. The Maker shall also be liable for attorneys' fees for collection of the Note in the amount of five percent (5%) of the total amount then due by the Maker to the Payee, but in any event not less than $3,000.00 and the cost of any title search incurred by the Payee in connection with the proceedings. Payment of these amounts may be enforced and recovered by the entry of judgment on this Note and the issuance of execution on the judgment. Time is of the essence. Cumulative Remedies 5. The remedies of the Payee provided in this Note or otherwise available to the Payee at law or in equity and the warrants of attorney herein or therein contained, shall be cumulative and concurrent, and may be pursued singly, successively, and together at the sole discretion of the Payee, and may be exercised as often as occasion therefore shall occur. The failure to exercise any right or remedy shall in no event be construed as a waiver or release of the right or remedy. Waivers 6. The Maker hereby releases the Payee and the attorney or attorneys from all errors, defects, and imperfections in entering judgment by confession, issuing any process, or instituting any proceedings relating to the confession of judgment. Parties 7. The words "Payee" and "Maker" in this Note shall be deemed and construed to include the respective heirs, personal representatives, successors, and assigns of the Payee and the Maker. The obligation of the persons named as Maker shall be joint and several Construction 8. This instrument shall be construed according to and governed by the laws of the Commonwealth of Pennsylvania. Consent to Jurisdiction 9. Maker hereby consents to the exclusive jurisdiction of the Court of Common Pleas of Cumberland County, Pennsylvania, and/or for the United States District Court for the Middle District of Pennsylvania, in any and all actions or proceedings arising hereunder or pursuant hereto, and irrevocably agrees to service of process by certified mail, return receipt requested, to the address for Maker set forth above or to such other address as Maker may direct by notice to Payee. IN WITNESS WHEREOF, the Maker has duly executed this Note under seal on the day and year first written above. WITNESS( T EST): (Seal) Alfred L. Madeira, Borrower COMMONWEALTH OF PENNSYLVANIA : SS COUNTY OF CUMBERLAND On this, the day of December A.D., 2008, before me the undersigned officer, personally appeared Alfred Madeira, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledge that he/she executed the same for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary NOTE December 17, 2008 Mechanicsburg, Pennsylvania FOR VALUE RECEIVED, Alfred L. Madeira (hereinafter referred to as the "Maker") hereby promises to pay to the order of David E. Ricker (the "Payee"), the principal sum of Four Hundred Thousand Dollars ($400,000.00) in lawful money of the United States of America. Maker hereby promises to pay total fees and interest of Two Hundred Thousand Dollars ($200,000.00) in lawful money of the United States on or before the Maturity Date as defined below in Section 1.1 of this Note. Total money returned is $600,000.00. Payment of Principal and Interest 1. Principal and interest shall be payable, in lawful money of the United States of America, at the office of the Payee or such other place as the holder of this Note may designate, in the following manner: 1.1 On March 31, 2009, all amounts owed are due in full, which is called the Maturity Date. Late Charges 2. The Maker agrees that in the event any payment shall be overdue for a period in excess of thirty (30) days, the Maker shall pay to the Payee a late charge of five percent (5%) of the amount overdue to cover the additional expense incident to delinquency. This shall not be construed to obligate the Payee to accept any overdue installment nor to limit the Payee's rights and remedies for the Maker's default as set forth in this Note. No Transfer 3. If the Maker shall, without in each instance obtaining the prior written consent of the Payee, sell, transfer, lease, or convey (herein all called "Transfer") the Mortgaged Property or any interest in it, whether voluntarily or by operation of law, then, at the option of the Payee, the maturity of this Note shall be advanced to the date of the Transfer, and the obligations of the Maker under this Note shall immediately be due and payable. For purposes of this paragraph, if the Maker is a corporation, the sale or transfer of any stock of the Maker or the issuance of additional stock of the Maker that results in a transfer of control of the Maker shall constitute a Transfer of the Mortgaged Property; if the Maker is a partnership, the sale or transfer of any partnership interest in the Maker shall constitute a Transfer of the Mortgaged Property. Events of Default 4. If the Maker fails to pay any sum when due or if the maker shall in any other way be in default under this Note or if any certification, warranty, or representation made by the Maker to the Payee proves to be materially false, then the entire unpaid principal balance of this Note, together with interest accrued and with all other sums due or owed by the Maker under this Note shall at the option of the Payee and without notice to the Maker become due and payable immediately with interest. After the default and acceleration and until the Maker's indebtedness to the Payee is paid in full, including the period following entry of any judgment, the interest shall accrue at a rate of eight percent (8%) per year. The Maker shall also be liable for attorneys' fees for collection of the Note in the amount of five percent (5%) of the total amount then due by the Maker to the Payee, but in any event not less than $3,000.00 and the cost of any title search incurred by the Payee in connection with the proceedings. Payment of these amounts may be enforced and recovered by the entry of judgment on this Note and the issuance of execution on the judgment. Time is of the essence. Cumulative Remedies 5. The remedies of the Payee provided in this Note or otherwise available to the Payee at law or in equity and the warrants of attorney herein or therein contained, shall be cumulative and concurrent, and may be pursued singly, successively, and together at the sole discretion of the Payee, and may be exercised as often as occasion therefore shall occur. The failure to exercise any right or remedy shall in no event be construed as a waiver or release of the right or remedy. Waivers 6. The Maker hereby releases the Payee and the attorney or attorneys from all errors, defects, and imperfections in entering judgment by confession, issuing any process, or instituting any proceedings relating to the confession of judgment. Parties 7. The words "Payee" and "Maker" in this Note shall be deemed and construed to include the respective heirs, personal representatives, successors, and assigns of the Payee and the Maker. The obligation of the persons named as Maker shall be joint and several Construction 8. This instrument shall be construed according to and governed by the laws of the Commonwealth of Pennsylvania. Consent to Jurisdiction 9. Maker hereby consents to the exclusive jurisdiction of the Court of Common Pleas of Cumberland County, Pennsylvania, and/or for the United States District Court for the Middle District of Pennsylvania, in any and all actions or proceedings arising hereunder or pursuant hereto, and irrevocably agrees to service of process by certified mail, return receipt requested, to the address for Maker set forth above or to such other address as Maker may direct by notice to Payee, IN WITNESS WHEREOF, the Maker has duly executed this Note under seal on the day and year first written above. WITNESS (ATTEST): (Seal) Alfred . Madeira, B mower COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND : SS !4 On this, the 7 day of December A.D., 2008, before me the undersigned officer, personally appeared Alfred Madeira, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledge that he/she executed the same for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. QOMbtONWMTH of M NMVANIA Notary NOTARIAL SEAL 7bomas J. Al?rd:s, Notary Public UF1ff Mlkn TMdip, Q=bmW Cbwq 112011 ?xkid?"! C AFTER RECORDING RETURN TO: AHRENS LAW FIRM, P.C. Prepared By: 52 C.ettyebarg Pike Mechanicsburg, PA 17055 Parcel No.: -?--?-------------- ---(Space Above This Line for Recording Data)- MORTGAGE THIS MORTGAGE is made this 17th day of December, 2008, between the Mortgagor, Madeira Operations, LLC a Pennsylvania Limited Liability Company, (herein "Borrower" or "Mortgagor") whose address is 1124 Kennebec Drive, Chambersburg, Pennsylvania, and the Mortgagee, David Ricker, (herein "Lender" or "Mortgagee"). WHEREAS, Borrower is indebted to Lender in the principal sum of Four Hundred Thousand Dollars ($400,000.00), which indebtedness is evidenced by Borrower's note dated December 17, 2008 (herein "Note"), due and payable on March 31, 2009. TO SECURE to Lender (a) the repayment of the indebtedness evidenced by the Note, with interest thereon, the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Mortgage, and the performance of the covenants and agreements of Borrower herein contained, and (b) the repayment of any future advances, with interest thereon, made to Borrower by Lender pursuant to paragraph 21 hereof (herein "Future Advances"), Borrower does hereby mortgage, grant and convey to Lender certain property located in the County of Cumberland, Commonwealth of Pennsylvania which is more fully described in Exhibit "A" attached hereto, which has the address of 277 Stoner Road, Mechanicsburg, PA 17055 (herein "Property Address"); TOGETHER with all the improvements now or hereafter erected on the property, and all easements, rights, appurtenances, rents, royalties, mineral, oil and gas rights and profits, water, water rights, and water stock, and all fixtures now, or hereafter attached to the property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the property covered by this Mortgage; and all of the foregoing, together with said property (or the leasehold estate if this Mortgage is on a leasehold) are herein referred to as the "Property." Borrower covenants that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property, that the Property is unencumbered, and that Borrower will warrant and defend generally the title to the Property against all claims and demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions to coverage in any title insurance policy insuring Lender's interest in the Property. Initials UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1. Payment of Principal and Interest. Borrower shall promptly pay when due the principal of and interest on the indebtedness evidenced by the Note, prepayment and late charges as provided in the Note, and the principal of and interest on any Future Advances secured by this Mortgage. 2. Funds for Taxes and Insurance. Subject to applicable law or to a written waiver by Lender, Borrower shall pay to Lender on the day monthly installments of principal and interest are payable under the Note, until the note is paid in full, a sum (herein "Funds") equal to one- twelfth of the yearly taxes and assessments which may attain priority over this Mortgage, and ground rents on the Property, if any, plus one-twelfth of yearly premium installments for hazard insurance, plus one-twelfth of yearly premium installments for mortgage insurance, if any, all as reasonably estimated initially and from time to time by Lender on the basis of assessments and bills and reasonable estimates thereof. The Funds shall be held in an institution the deposits or accounts of which are insured or guaranteed by a Federal or state agency (including Lender if Lender is such an institution). Lender shall apply the Funds to pay said taxes, assessments, insurance premiums and ground rents. Lender may not charge for so holding and applying the Funds, analyzing said account, or verifying and compiling said assessments and bills, unless Lender pays Borrower interest on the Funds and applicable law permits Lender to make such a charge. Borrower and Lender may agree in writing at the time of execution of this Mortgage that interest on the Funds shall be paid to Borrower, and unless such agreement is made or applicable law requires such interest to be paid, Lender shall not be required to pay Borrower any interest or earnings on the Funds. Lender shall give to Borrower, without charge, an annual accounting of the Funds showing credits and debits to the Funds and the purpose for which each debit to the Funds was made. The Funds are pledged as additional security for the sums secured by this Mortgage. If the amount of the Funds held by Lender, together with the future monthly installments of Funds payable prior to the due dates of taxes, assessments, insurance premiums and ground rents, shall exceed the amount required to pay said taxes, assessments, insurance premiums and ground rents as they fall due, such excess shall be, at Borrower' option, either promptly repaid to Borrower or credited to Borrower on monthly installments of Funds. If the amount of the Funds held by Lender shall not be sufficient to pay taxes, assessments, insurance premiums and ground rents as they fall due, Borrower shall pay to Lender any amount necessary to make up the deficiency within 30 days from the date notice is mailed by Lender to Borrower requesting payment thereof. 2 Initials Upon payment in full of all sums secured by this Mortgage, Lender shall promptly refund to Borrower any Funds held by Lender. If under paragraph 18 hereof the Property is sold or the Property is otherwise acquired by Lender, Lender shall apply, no later than immediately prior to the sale of the Property or its acquisition by Lender, any Funds held by Lender at the time of application as a credit against the sums secured by this Mortgage. 3. Application of Payments. Unless applicable law provides otherwise, all payments received by Lender under the Note and paragraphs 1 and 2 hereof shall be applied by Lender first in payment of amounts payable to Lender by Borrower under paragraph 2 hereof, then to interest payable on the Note, then to the principal of the Note, and then to interest and principal on any Future Advances. 4. Charges; Liens. Borrower shall pay all taxes, assessments and other charges, fines and impositions attributable to the Property which may attain a priority over this Mortgage, and leasehold payments or ground rents, if any, in the manner provided under paragraph 2 hereof or, if not paid in such manner, by Borrower making payment, when due, directly to the payee thereof. Borrower shall promptly furnish to Lender all notices of amounts due under this paragraph, and in the event Borrower shall make payment directly, Borrower shall promptly furnish to Lender receipts evidencing such payments. Borrower shall promptly discharge any lien which has priority over this Mortgage; provided, that Borrower shall not be required to discharge any such lien so long as Borrower shall agree in writing to the payment of the obligation secured by such lien in a manner acceptable to Lender, or shall in good faith contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Property or any part thereof. 5. Hazard Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within the term "extended coverage," and such other hazards as Lender may require and in such amounts and for such periods as Lender may require; provided, that Lender shall not require that the amount of such coverage exceed that amount of coverage required to pay the sums secured by this Mortgage. The insurance carrier providing the insurance shall be chosen by Borrower subject to approval by Lender; provided, that such approval shall not be unreasonably withheld. All premiums on insurance policies shall be paid in the manner provided under paragraph 2 hereof or, if not paid in such manner, by Borrower making payment, when due, directly to the insurance carrier. All insurance policies and renewals thereof shall be in form acceptable to Lender and shall include a standard mortgage clause in favor of and in form acceptable to Lender. Lender shall have the right to hold the policies and renewals thereof, and Borrower shall promptly furnish to Lender all renewal notices and all receipts of paid premiums. In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of loss if not made promptly by Borrower. 3 Initials Unless Lender and Borrower otherwise agree in writing, insurance proceeds shall be applied to restoration or repair of the Property damaged, provided such restoration or repair is economically feasible and the security of this Mortgage is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Mortgage would be impaired, the insurance proceeds shall be applied to the sums secured by this Mortgage, with the excess, if any, paid to Borrower. If the Property is abandoned by Borrower, or if Borrower fail to respond to Lender within 30 days from the date notice is mailed by Lender to Borrower that the insurance carrier offers to settle a claim for insurance benefits, Lender is authorized to collect and apply the insurance proceeds at Lender's option either to restoration or repair of the Property ar to the sums secured by this Mortgage. Unless Lender and Borrower otherwise agree in writing, any such application of proceeds to principal shall not extend or postpone the due date of the monthly installments referred to in paragraphs 1 and 2 hereof or change the amount of such installments. If under paragraph 18 hereof the Property is acquired by Lender, all right, title and interest of Borrower in and to any insurance policies and in and to the proceeds thereof resulting from damage to the Property prior to the sale or acquisition shall pass to Lender to the extent of the sums secured by this Mortgage immediately prior to such sale or acquisition. 6. Preservation and Maintenance of Property; Leaseholds; Condominiums; Planned Unit Developments. Borrower shall keep the Property in good repair and shall not commit waste or permit impairment or deterioration of the Property and shall comply with the provisions of any lease if this Mortgage is on a leasehold. If this Mortgage is on a unit in a condominium or a planned unit development, Borrower shall perform all of Borrower' obligations under the declaration or covenants creating or governing the condominium or planned unit development, the by-laws and regulations of the condominium or planned unit development, and constituent documents. If a condominium or planned unit development rider is executed by Borrower and recorded together with this Mortgage, the covenants and agreements of such rider shall be incorporated into and shall amend and supplement the covenants and agreements of this Mortgage as if the rider were a part hereof. 7. Protection of Leader's Security. If Borrower fails to perform the covenants and agreements contained in this Mortgage, or if any action or proceeding is commenced which materially affects Lender's interest in the Property, including, but not limited to, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then Lender at Lender's option, upon notice to Borrower, may make such appearances, disburse such sums and take such action as is necessary to protect Lender's interest, including, but not limited to, disbursement of reasonable attorney's fees and entry upon the Property to make repairs. If Lender required mortgage insurance as a condition of making the loan secured by this Mortgage, Borrower shall pay the premiums required to maintain such insurance in effect until such time as the requirement for such insurance terminates in accordance with Borrower' and Lender's written agreement or applicable law. Borrower shall pay the amount of all mortgage insurance premiums in the manner provided under paragraph 2 hereof. 4 Initials Any amounts disbursed by Lender pursuant to this paragraph 7, with interest thereon, shall become additional indebtedness of Borrower secured by this Mortgage. Unless Borrower and Lender agree to other terms of payment, such amounts shall be payable upon notice from Lender to Borrower requesting payment thereof, and shall bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts shall bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph 7 shall require Lender to incur any expense or take any action hereunder. 8. Inspection. Lender may make or cause to be made reasonable entries upon and inspections of the Property, provided that Lender shall give Borrower notice prior to any such inspection specifying reasonable cause therefor related to Lender's interest in the Property. 9. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of the Property, or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender. In the event of a total taking of the Property, the proceeds shall be applied to the sums secured by this Mortgage, with the excess, if any, paid to Borrower. In the event of a partial taking of the Property, unless Borrower and Lender otherwise agree in writing, there shall be applied to the sums secured by this Mortgage such proportion of the proceeds as is equal to that proportion which the amount of the sums secured by this Mortgage immediately prior to the date of taking bears to the fair market value of the Property immediately prior to the date of taking, with the balance of the proceeds paid to Borrower. If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the condemnor offers to make an award or settle a claim for damages, Borrower fail to respond to Lender within 30 days after the date such notice is mailed, Lender is authorized to collect and apply the proceeds, at Lender's option, either to restoration or repair of the Property or to the sums secured by this Mortgage. Unless Lender and Borrower otherwise agree in writing, any such application of proceeds to principal shall not extend or postpone the due date of the monthly installments referred to in paragraphs 1 and 2 hereof or change the amount of such installments. 10. Borrower Not Released. Extension of the time for payment or modification of amortization of the sums secured by this Mortgage granted by Lender to any successor in interest of Borrower shall not operate to release, in any manner, the liability of the original Borrower and Borrower' successors in interest. Lender shall not be required to commence proceedings against such successor or refuse to extend time for payment or otherwise modify amortization of the sums secured by this Mortgage by reason of any demand made by the original Borrower and Borrower's successors in interest. S Initials 11. Forbearance by Lender Not a Waiver. Any forbearance by Lender in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by Lender shall not be a waiver of Lender's right to accelerate the maturity of the indebtedness secured by this Mortgage. 12. Remedies Cumulative. All remedies provided in this mortgage are distinct and cumulative to any other right or remedy under this Mortgage or afforded by law or equity, and may be exercised concurrently, independently or successively. 13. Successors and Assigns Bound; Joint and Several Liability; Captions. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of Lender and Borrower, subject to the provisions of paragraph 17 hereof. All covenants and agreements of Borrower shall be joint and several. The captions and headings of the paragraphs of this Mortgage are for convenience only and are not to be used to interpret or define the provisions hereof. 14. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Borrower provided for in this Mortgage shall be given by mailing such notice by certified mail addressed to Borrower at the Property Address or at such other address as Borrower may designate by notice to Lender as provided herein, and (b) any notice to Linder shall be given by certified mail, return receipt requested, to Lender's address stated herein or to such other address as Lender may designate by notice to Borrower as provided herein. Any notice provided for in this Mortgage shall be deemed to have been given to Borrower or Lender when given in the manner designated herein. 15. Uniform Mortgage; Governing Law; Severability. This form of mortgage combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. This Mortgage shall be governed by the law of the jurisdiction in which the Property is located. In the event that any provisions or clause of this Mortgage or the Note conflicts with applicable law, such conflict shall not affect other provisions of this Mortgage or the Note which can be given effect without the conflicting provision, and to this end the provisions of the Mortgage and the Note are declared to be severable. 16. Borrower's Copy. Borrower shall be furnished a conformed copy of the Note and of this Mortgage at the time of execution or after recordation hereof. 17. Transfer of the Property; Assumption. If all or any part of the Property or an interest therein is sold or transferred by Borrower without Lender's prior written consent, Lender may, at Lender's option, declare all the sums secured by this Mortgage to be immediately due and payable. Lender shall have waived such option to accelerate if, prior to the sale or transfer, Lender and the person to whom the Property is to be sold or transferred reach agreement in 6 Initials writing that the credit of such person is satisfactory to Lender and that the interest payable on the sums secured by this Mortgage shall be at such rate as Lender shall request. If Lender has waived the option to accelerate provided in this paragraph 17, and if Borrower's successor in interest has executed a written assumption agreement accepted in writing by Lender, Lender shall release Borrower from all obligations under this Mortgage and the Note. If Lender exercises such option to accelerate, Lender shall mail Borrower notice of acceleration in accordance with paragraph 14 hereof. Such notice shall provide a period of not less than 30 days from the date the notice is mailed within which Borrower may pay the sums declared due. If Borrower fails to pay such sums prior to the expiration of such period, Lender may, without further notice or demand on Borrower, invoke any remedies permitted by paragraph 18 hereof. NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows: 18. Acceleration; Remedies. Upon Borrower's breach of any covenant or agreement of Borrower in this Mortgage, including the covenants to pay when due any sums secuied by this Mortgage, Lender prior to acceleration shall mail notice to Borrower as provided by applicable law specifying: (1) the breach; (2) the action required to cure such breach; (3) a date, not less than 30 days from the date the notice is mailed to Borrower, by which such breach must he cured; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Mortgage, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the breach is not cured on or before the date specified in the notice, Lender at Lender's option may declare all of the sums secured by this Mortgage to be immediately due and payable without further demand and may foreclose this Mortgage by judicial proceeding. Lender shall be entitled to collect in such proceeding all expenses of foreclosure, including, but not limited to, reasonable attorney's fees, and costs of documentary evidence, abstracts and title reports. 19. Borrower's Right to Reinstate. Notwithstanding Lender's acceleration of the sums secured by this Mortgage, Borrower shall have the right to have any proceedings begun by Lender to enforce this Mortgage discontinued at any time prior to at least one hour prior to the commencement of bidding at a sheriffs sale or other sale pursuant to this Mortgage if (a) Borrower pay Lender all sums which would be then due under this Mortgage, the Note and notes securing Future Advances, if any, had no acceleration occurred; (b) Borrower cures all breaches of any other covenants or agreements of Borrower contained in this Mortgage; (c) Borrower pay all reasonable expenses incurred by Lender in enforcing the covenants and agreements of Borrower contained in this Mortgage and in enforcing Lender's remedies as provided in paragraph 18 hereof, including, but not limited to, reasonable attorney's fees; and (d) Borrower takes such action as Lender may reasonably require to assure that the lien of this Mortgage, Lender's interest in the Property and Borrower' obligation to pay the sums secured by this Mortgage shall continue unimpaired. Upon such payment and cure by Borrower, this Mortgage 7 Initials and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred. 20. Assignment of Rents; Appointment of Receiver, Lender in Possession. As additional security hereunder, Borrower hereby assign to Lender the rents of the Property, provided that Borrower shall, prior to acceleration under paragraph 18 hereof or abandonment of the Property, have the right to collect and retain such rents as they become due and payable. Upon acceleration under paragraph 18 hereof or abandonment of the property, Lender, in person, by agent or by judicially appointed receiver, shall be entitled to enter upon, take possession of and manage the property and to collect the rents of the Property including those past due. All rents collected by Lender or the receiver shall be applied first to payment of the costs of management of the Property and collection of rents, including, but not limited to, receiver's fees, premiums on receiver's bonds and reasonable attorney's fees, and then to the sums secured by this Mortgage. Lender and the receiver shall be liable to account only for those rents actually received. 21. Future Advances. Upon request of Borrower, Lender, at Lender's option prior to release of this Mortgage, may make Future Advances to Borrower. Such Future Advances, with interest thereon, shall be secured by this Mortgage when evidenced by promissory notes stating that said notes are secured hereby. At no time shall the principal amount of the indebtedness secured by this Mortgage, not including sums advanced in accordance herewith to protect the security of this Mortgage, exceed the original amount of the Note. 22. Release. Upon payment of all sums secured by this Mortgage, Lender shall discharge this Mortgage, without charge to Borrower. Borrower shall pay all costs of recordation, if any. 23. Purchase Money Mortgage. If all or part of the sums secured by this Mortgage are lent to Borrower to acquire title to the Property, this Mortgage is hereby declared to be a purchase money mortgage. 24. Hazardous Substances. (a) Mortgagors shall not hereafter use, store, generate or discharge, or cause or permit to be used, stored, generated or discharged, any toxic or hazardous waste or materials at the Property, nor allow a lien to be imposed on the Property pursuant to any applicable environmental law. If it shall be determined that any predecessor in title to the Property caused or permitted any such discharge, and action by Mortgagors to clear the Property of such waste or material is not instituted and completed within such periods of time as may be allowed to Mortgagors by the governmental authorities with jurisdiction over the Property, such failure shall constitute an "Event of Default" under this Mortgage. (b) If Mortgagors receive any notice of (1) the happening of any event involving the use, storage, spill, discharge or cleanup of any hazardous or toxic waste or material or any oil or 8 Initials pesticide on or about any property of Mortgagors, including without limitation, the property, or any portion thereof, or caused by Mortgagors (a "Hazardous Discharge"), or (ii) any complaint, order, citation or notice with regard to air emissions, water discharges, noise emissions or any other environmental, health or safety matter affecting Mortgagors, the Property, or any portion thereof, or its or Mortgagors' operations (an "Environmental Complaint') from any person or entity including without limitation, the Department of Environmental Protection of the Commonwealth of Pennsylvania (the "DEP"), the United States Environmental Protection Agency (the `EPA"), the United States Army Corps of Engineers (the "Corps"), or the United States Coast Guard (the "Coast Guard'), then Mortgagors will immediately give written notice of same to Mortgagee and shall promptly comply with its obligations under law with regard to such Hazardous Discharge or Environmental Complaint. (c) Without limiting Mortgagee's rights under this Mortgage, Mortgagee shall have the right, but not the obligation, to exercise any of its rights as may be provided for elsewhere in this Mortgage or to enter onto the Property or to take such other actions as it deems necessary or advisable to clean up, remove, resolve, or minimize the impact of or otherwise deal with, any such Hazardous Discharge or Environmental Complaint upon its receipt of any notice from any person or entity, including without limitation, the DEP, the EPA, the Corps, the Coast Guard or Mortgagors, asserting the happening of a Hazardous Discharge or Environmental Complaint which, if true, could result in any order, suit or other action against Mortgagors and/or the Property; or any portion thereof, by any governmental agency or otherwise which, in the sole opinion of Mortgagee, could jeopardize its security under this Mortgage or any portion thereof; provided, however, that Mortgagors have not immediately commenced and is diligently pursuing either (x) the cure or correction, in form, scope and substance acceptable to Mortgagee and the agency or entity asserting the happening of the Hazardous Discharge or Environmental Complaint, or of the event which constitutes the basis for the Hazardous Discharge or Environmental Complaint, and is continuing diligently to pursue such cure or correction to completion, or (y) proceedings for an injunction, a restraining order or other appropriate emergency relief preventing such agency or entity from asserting such claim, which relief is granted within ten (10) days of the occurrence giving rise to the claim and the injunction, order or emergency relief if not thereafter dissolved or reversed on appeal, and in either of the foregoing events, Mortgagors have posted cash, a bond, letter of credit or other security satisfactory in form, substance and amount to both Mortgagee and the agency or entity asserting the Hazardous Discharge or Environmental Complaint to secure the proper and complete cure or correction of the event which constitutes the basis for the claim. All costs and expenses, including without limitation, legal fees and expenses, incurred by Mortgagee in the exercise of any such rights shall be payable by Mortgagors upon demand with interest thereon at the Default Rate as defined in the Note, from the date of payment to the date Mortgagee is reimbursed by Mortgagors, and shall be secured by this Mortgage and all other collateral granted to Mortgagee by Mortgagors. (d) In addition to those events previously specified, the occurrence of any of the following events shall constitute an Event of Default under this Mortgage, entitling Mortgagee to all of the rights and remedies provided, therefore: 9 Initials (I) If Mortgagee receives its first notice of a Hazardous Discharge or Environmental Complaint other than from Mortgagors, and Mortgagee does not receive a required notice (which must be given in written form as required by this Mortgage) of such Hazardous Discharge or Environmental Complaint from Mortgagors within ten (10) business days of the date Mortgagee first receives said notice other than from Mortgagors; provided, however, that Mortgagors have in fact received such notice, or (ii) If the DEP, EPA or any other state or federal agency asserts or creates a lien upon any or all of the Property by reason of the occurrence of a Hazardous Discharge or Environmental Complaint or otherwise; or (iii) If the DEP, EPA or any other state or federal agency asserts a claim against the Mortgagors, the Property or Mortgagee for damages or cleanup costs related to a Hazardous Discharge or Environmental Complaint. (e) Mortgagors hereby agree to defend, indemnify, and hold Mortgagee harmless from and against any and all claims, losses, liabilities, damages and expenses (including without limitation, cleanup costs and attorneys' fees and expenses, including those arising by reason of any of the aforesaid or an action against Mortgagors under this indemnity) arising directly or indirectly from, out of, or by reason of any Hazardous Discharge, Environmental Complaint or any environmental, health or safety law governing Mortgagors, its operations or the Property, or any portion thereof. This subparagraph (e) shall survive the foreclosure, expiration or sooner termination of this Mortgage. 25. Consent to Jurisdiction. Mortgagors hereby consent to the exclusive jurisdiction of the Court of Common Pleas of Cumberland County Pennsylvania, and/or the United States District Court for the Middle District of Pennsylvania in any and all actions or proceedings arising hereunder or pursuant hereto, and irrevocably agrees to service of process by personal service upon Mortgagors wherever Mortgagors may be then located, or by certified or registered mail, return receipt requested, directed to Mortgagors at their last known address. 26. WAIVER OF RIGHT TO JURY TRIAL. MORTGAGORS HEREBY WAIVE THE RIGHT TO HAVE ANY CONTROVERSIES OR MATTERS ARISING HEREUNDER OR RELATED TO THE OBLIGATIONS SECURED HEREBY TRIED BY A JURY. 27. Covenant Running with the Land. Any act or agreement to be done or performed by Mortgagors shall be construed as a covenant running with the land and shall be binding upon Mortgagors and its successors, heirs and assigns as if they had personally made such agreement. IN WITNESS WHEREOF, Borrower has executed this Mortgage. WITNESS (ATTEST): . 1. ? ) Al L. Madeira, ?06mbwnMampr r+Eeev COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND : SS On this, the 17th day of December, A.D., 2008, before me the undersigned officer, personally appeared Alfred L. Madeira, Sole Member, Manager, Madeira Operations, LLC known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledge that they executed the same for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. COMMONWEALTH OF PENNSYLVANIA / NOTARIAL SEAL Thomas J. Ahrens, Notary Public Notary Publi Upper Allen Township, CwnbvWCounty M conmussion ex pi Fcogg 15 2011 I hereby certify that the precise address of the within-named Mortgagee is: Attorney for Mortgagee 11 Initials Tax Parcel # 22-10-0644-034 Tax Parcel # 22-11-0278-011 EXHIBIT "A" ALL THAT CERTAIN piece or parcel of land, situate in the Township of Monroe, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: TRACT NO.1 BEGINNING at a point in Stoner Road; thence by land now or formerly of George R. Eppley, North 40 degrees 00 minutes 00 seconds East, one thousand eighty two and eighty five hundredths (1082.85) feet to a pin; thence South 48 degrees 26 minutes 22 seconds East, one thousand three hundred sixty-two and sixty three hundredths (1362.63) feet to a point in Williams Grove Road; thence by said road, South 39 degrees 38 minutes 26 seconds West, one thousand eighty-five and nine hundredths (1085.09) feet to a point in the first above mentioned public road; thence by the same road, North 48 degrees twenty-one minutes sixteen seconds West, one thousand three hundred sixty-nine and fifty hundredths (1369.50) feet to the place of BEGINNING. CONTAINING 33.9773 acres BEING Lot # 1 of the Final Subdivision plan for Frank E. Stoner, Sr. & Dorothy M, h/w prepared by Gerrit J. Betz Associates, Inc. on May 15, 1986 and recorded in Plan Book 50, at Page 129 in the recorder of Deeds Office in and for Cumberland County. TRACT NO.2 BEGINNING at a point on the Western side of Williams Grove Road at southeast corner of land now or formerly of Terry Stoner, being Lot No. 1 on the Plan of Lots of Frank E. Stoner, as recorded in Plan Book 57, at page 53, Cumberland County Recorder of Deed's Office; thence by lot No. 1 South 87 degrees 32 minutes 12 seconds West nine hundred eighty and fifty-one hundredths (980.51) feet to a point; thence South 00 degrees 28 minutes 00 seconds West three hundred thirty-seven and seventy-one hundredths (337.71) feet to a pin; thence South 88 degrees 45 minutes 00 seconds East none hundred eighty-one and twenty eight hundredths (981.28) feet to a point on the western side of Williams Grove Road; thence by the western side of Williams Grove Road north 00 degrees 11 minutes 11 seconds East four hundred one and twenty-five hundredths (401.25) feet to a point the place of BEGINNING. BEING Lot No. 2 on the plan of Lots of Frank E. Stoner, as recorded in Plan Book 57, at page 53, Cumberland County Recorder of Deed's office. EXCEPTING from the above tract the following parcel. BEGINNING at a point located on the western right of way line of Williams Grove Road (S.R. 2011) a 06 foot right-of-way, said point being the southeastern property corner of lands now or formerly of Barry L. Loreman and the northeastern property corner of lands now or formerly of Frank E. & Dorothy M. Stoner; thence from point of beginning along said right-of-way line South 01 degrees 17 minutes 17 seconds West a distance of 225.70 feet to a point; thence along lands now or formerly of Frank E. & Dorothy M. Stoner the following courses and distances: 1) South 88 degrees 42 minutes 43 seconds West a distance of 15.00 feet to a point; 2.) North 01 degrees 17 minutes 17 seconds West a distance of 225.00 feet to a point; thence along lands now or formerly of Barry L. Loreman North 86 degrees 02 minutes 04 seconds East a distance of 15.02 feet to a point, said point being the point of BEGINNING. CONTAINING 0.078 acres. FT .,t T!, i I .i S • n, t I 7 t1:,, ?'7s. so eke ?ag8 44, ? - / %/// 3 3ri `? r John G Milakovic, Esquire Attorney No. 34843 Charles O. Beckley, II, Esquire Attorney No. 47564 BECKLEY & MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 DAVID E. RICKER, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW THOMAS J. AHRENS and AHRENS LAW : LAW FIRM, P.C., NO. 09-3558-CIVIL Defendants JURY TRIAL DEMANDED CERTIFICATE OF MERIT Certificate of Merit as to Defendant Ahrens Law Firm, P.C. I, Charles O. Beckley, II, certify that the claim that Ahrens Law Firm, P.C., deviated from an acceptable professional standard is based solely on allegations that a licensed professional, i.e. Thomas J. Ahrens, for whom Ahrens Law Firm, P.C., is responsible deviated from an acceptable professional standard and that an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by Thomas J. Ahrens in performing the legal work that is the subject of this complaint fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. Dated: June 8, 2009 Of Counsel BECKLEY & MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 Respectfully submitted, Joffif G. Milakovic, Esquire WBeckl harles O. , I , Esquire Attorney No. 47564 i CERTIFICATE OF SERVICE I, Charles O. Beckley, II, hereby certify that a copy of the foregoing document was served this day upon the persons and in the manner indicated below: SERVICE BY REGULAR MAIL: Thomas J. Ahrens, Esquire 30171/2 Dickinson Avenue Camp Hill, PA 17011 Ahrens Law Firm, P.C. 52 Gettysburg Pike Mechanicsburg, PA 17055 DATED: June 8, 2009 ` harles O. Beckley, 11 1- ALE€}--OFFiCE OF THE PF )Tk,C}N oTARY 2009 JUN -9 PM 12: ti 3 CUME ::..5 4?i ?,OUN1Y PEN y vSYLVA 4!A John G Milakovic, Esquire Attorney No. 34843 Charles O. Beckley, II, Esquire Attorney No. 47564 BECKLEY & MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 DAVID E. RICKER, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION -LAW THOMAS J. AHRENS and AHRENS LAW LAW FIRM, P.C., NO. 09-3558-CIVIL Defendants JURY TRIAL DEMANDED CERTIFICATE OF MERIT Certificate of Merit as to Defendant Thomas J. Ahrens. I, Charles O. Beckley, II, certify that an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by Thomas J. Ahrens in performing the legal work that is the subject of this complaint fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. Dated: June 8, 2009 Of Counsel BECKLEY & MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 Respectfully submitted, J G. Milakovic, Esquire ,pMey N_ p- Att Charles O. Beckley, I Asquire Attorney No. 47564 CERTIFICATE OF SERVICE I, Charles O. Beckley, II, hereby certify that a copy of the foregoing document was served this day upon the persons and in the manner indicated below: SERVICE BY REGULAR MAIL: Thomas J. Ahrens, Esquire 3017'/2 Dickinson Avenue Camp Hill, PA 17011 Ahrens Law Firm, P.C. 52 Gettysburg Pike Mechanicsburg, PA 17055 DATED: June 8, 2009 -45?/ . - A.harles Beckley, II ALED-OFF!?E OF THE PPCTF'nNOTARY 2099 JUN -9 PM i2= 43 CJMB* ,:N.Y yf i."C'UVTR' PEAMYLVANlA Sheriffs Office of Cumberland County R Thomas Kline 4?,,,tr of 'urnbrrf Edward L Schorpp Sheri _ Solicitor Ronny R Anderson Jody S Smith Chief Deputy ICE c F rH¢ SwER;FF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 06/01/2009 02:38 PM - Brian Barrick, Corporal, who being duly sworn according to law, states that on June 4, 2009 at 0835 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Ahrens Law Office, by making known unto Judd Ahrens, office manager at 1 Courthouse Square Room 303 Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to him personally the said true and correct copy of the same. 06/08/2009 10:45 AM - Steve Bender, Deputy Sheriff, who being duly sworn according to law, states that on June 8, 2009 at 1045 hours, he served a true copy of the within Complaint and Notice, upon the Within named defendant, to wit: Thomas J. Ahrens, by making known unto himself personally, defendank at 52 Gettysburg Pike Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $57.94 June 09, 2009 2009-3558 David Ricker v Thomas Ahrens SO ANSWERS, R THO KLINE, SHERIFF Deputy Sheriff Deputy Sheriff n ? c . o ['1 t rtr' C_.. { + 'i/ aJ SWARTZ CAMPBELL LLC BY: Jeffrey B. McCarron Identification No. 49467 Two Liberty Place 50 S. 16th Street, 28th Floor Philadelphia, PA 19102 (215) 299-4296 Attorneys for Defendants, Thomas J. Ahrens and Thomas J. Ahrens t/d/b/a Ahrens Law Office --------------------------------------------------- DAVID E. RICKER , Plaintiff, v COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA THOMAS J AHRENS and AHRENS LAW FIRM, P.C. Defendants. -------------------------------------------- Civil Action No. 2009-3558 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of the defendants, Thomas J. Ahrens and Thomas J. Ahrens, t/d/b/ Ahrens Law Office in the above matter. DATE: C, -cZ'5--c9 FvVARTZ CAMPBELL LLC ?W'ff? VFF Y MMMcc ARRON SWARTZ CAMPBELL LLC ATTORNEYS AT LAW VI THE f f O11 .W A 2009 JUN 29 PM 3: 28 WUNTY PEWSYLVANIA TO: PLAINTIFF YOU HEREBY NOTIFIED TO FILE A WRITTEN PO S TO THE ENCLOSED NEW MATTER WITHIN WENT (21(YDAYS FROhYZER7JiCE HEREOF. SWARTZ CAMPBELL LLC BY: Jeffrey B. McCarron Identification No. 49467 Two Liberty Place 50S.16 th Street, 28th Floor Philadelphia, PA 19102 (215) 299-4296 ----------------------------------------- DAVID E. RICKER , Plaintiff, ------------------ v. Attorneys for Defendants, Thomas J. Ahrens and Thomas J. Ahrens t/d/b/a Ahrens Law Office COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA THOMAS J AHRENS and Civil Action No. 2009-3558 AHRENS LAW FIRM, P.C. Defendants. ---------------------------------------------------------------- ANSWER OF DEFENDANTS TO COMPLAINT WITH NEW MATTER Defendants, deny liability to plaintiff, respond to the averments of the complaint, and assert new matter: 1. After reasonable investigation defendants are without knowledge or information sufficient to form a belief about the truth of the averment concerning the plaintiffs business location. 2. Admitted. 3. Admitted. SWARTZ CAMPBELL LLC ATTORNEYS AT LAW 4. Admitted in part, denied in part. After reasonable investigation defendants are without knowledge or information sufficient to form a belief about the truth of the averment concerning the phone used to place the call and the location of plaintiff and Jeffrey Mealey during the telephone conversation. Plaintiff did not request legal services from defendants. The non-disclosure agreement was not prepared for plaintiff. Defendant referred Mealey to a patent lawyer. Defendants did not provide services to plaintiff. 5. Admitted in part, denied in part. Defendant explained the transaction as a loan. Defendant did not describe the transaction as an investment. Defendant did not indicate the loan transaction presented no risk. Defendant informed plaintiff that Madeira was offering to provide a mortgage against his farm property in Cumberland County. Defendant did not specifically inform plaintiff that the loan would be secured. 6. Admitted in part, denied in part. Defendant explained the transaction as a loan. Defendant did not describe the transaction as an investment. Defendant did not indicate the loan transaction was without risk. Defendant did not describe the mortgage and note as security or that the loan repayment would be triggered by the price or "target number" of gold. 7. Admitted. 8. Admitted in part, denied in part. Defendant explained to plaintiff the money would serve as a loan to Alfred Madeira. Defendant did not describe the -2- SWARTZ CAMPBELL LLC ATTORNEYS AT LAW proposed transaction involving plaintiff as an investment. 9. Admitted. 10. The averment is denied to the extent inconsistent with the mortgage document. 11. Admitted. 12. Admitted in part, denied in part. Defendants did not agree to represent plaintiff. Plaintiff did not discuss estate planning with defendant except to mention he might be interested in obtaining estate planning services. Plaintiff never requested estate planning services. Defendants did not provide estate planning services. Defendant did not represent plaintiff for the transaction with Madeira. Plaintiff did not request legal services, advice or assistance from defendants for the transaction with Madeira, and there was no agreement for representation between plaintiff and defendants for representation for the Madeira transactions. Defendants never informed or indicated to plaintiff they represented plaintiff for the transaction with Madeira. Defendant did not direct plaintiff to provide the funds. Defendant provided only instructions for plaintiff to transfer the funds plaintiff decided to lend to Madeira. 13. Denied. Defendant did not inform plaintiff the note and mortgage would secure the loan. Defendant informed plaintiff he would receive a note and mortgage in exchange for the loan. Defendant did not make, or believe he made, a false statement. -3- SWARTZ CAMPBELL LLC ATTORNEYS AT LAW 14. The averment is denied to the extent inconsistent with the documents and the recording records. 15. Admitted. 16. Admitted. 17. Admitted in part, denied in part. After reasonable investigation defendants are without knowledge or information sufficient to form a belief about the truth of the averment concerning whether the sum of the mortgages exceeded the fair market value of the property. 18. Admitted in part, denied in part. Defendant did not deprive plaintiff of an opportunity to search the title for the mortgaged property. 19. Denied. Defendant did not advise plaintiff. Defendant presented the transaction as a loan. Defendant did not present the transaction as an investment. Defendant did not assure plaintiff the transaction did not have risk. 20. Admitted in part, denied in part. Defendant did not indicate the transaction was an investment. Defendant referred to the transaction as a loan. 21. Admitted in part, denied in part. Defendant did not solicit plaintiff to buy gold. Plaintiff did not buy gold. The transaction between plaintiff and Madeira was a loan. After reasonable investigation defendants are without knowledge or information sufficient to form a belief about the truth of the averment concerning the reason plaintiff did not make an engage in a subsequent transaction. 22. Admitted. -4- SWARTZ CAMPBELL LLC ATTORNEYS AT LAW 23. After reasonable investigation defendants are without knowledge or information sufficient to form a belief about the truth of the averment. 24. After reasonable investigation defendants are without knowledge or information sufficient to form a belief concerning the information plaintiff learned when he recorded the mortgage. 25. After reasonable investigation defendants are without knowledge or information sufficient to form a belief about the truth of the averment. 26. Admitted. 27. Denied. The mortgage is valid. After reasonable investigation defendants are without knowledge or information sufficient to form a belief about the truth of the remaining averment. COUNTI 28. Defendants incorporate their answers to the above paragraphs. 29. No response is required. 30. Admitted in part, denied in part. Defendant did not act as plaintiffs lawyer for the transaction. Defendant did not tell plaintiff the note and mortgage would secure repayment. The transaction was a loan and not an investment. 31. Defendant provided instructions to plaintiff to transfer the funds plaintiff decided to lend. Defendant did not assure plaintiff the note and mortgage would assure repayment. 32. Admitted in part, denied in part. Defendant did not direct plaintiff. -5- SWARTZ CAMPBELL LLC ATTORNEYS AT LAW 33. Defendant did not indicate to plaintiff he was plaintiff"s lawyer for the transaction, he represented plaintiff in the transaction, or that he was serving plaintiff's interest for the transaction. 34. Denied. Defendant did not convey the impression to plaintiff that defendant was plaintiff's lawyer for the transaction or represented plaintiff's interest for the transaction. 35. Denied. Defendant did not provide advice or legal services to plaintiff. Plaintiff's alleged reliance on defendant to serve as plaintiff's lawyer and to serve plaintiff's interest for the transaction was not reasonable or grounded. 36. Denied. Defendant did not owe a duty to plaintiff to serve plaintiff's interests for the transaction. Defendant did not breach a duty to plaintiff. Defendant did not represent to plaintiff the transaction was no risk or was a fully secured investment. 37. Denied. Defendant did not represent plaintiff. Defendant did not owe a duty to plaintiff to serve plaintiff's interests for the transaction. Defendant did not breach a duty to plaintiff. Defendant properly prepared the documents. The documents prepared by defendant were not deficient. Defendant was not obligated to inform plaintiff about the other mortgages. 38. Denied. Defendant did not represent plaintiff. Defendant was not obligated to advise plaintiff to obtain a title search of the mortgaged property or to obtain a credit history of Madeira and Healy. -6- SWARTZ CAMPBELL LLC ATTORNEYS AT LAW 39. Denied. Defendant did not represent plaintiff. Defendant did not owe a duty to plaintiff to serve plaintiffs interests for the transaction. Defendant did not breach a duty to plaintiff. Defendant properly prepared the documents. The documents prepared by defendant were not deficient. The documents were as represented. Defendant was not obligated to include additional provisions in the document. 40. Denied. Defendant was not required to inform plaintiff that defendant did not represent plaintiff for the transaction or that plaintiff should obtain a lawyer to represent plaintiff. Defendant did not represent plaintiff for the transaction. Defendant did not inform plaintiff he represented plaintiff for the transaction. 41. Denied. After reasonable investigation defendants are without knowledge or information sufficient to form a belief about whether and the extent to which plaintiff will sustain damages. The alleged damages are not due to actionable conduct by defendant. The loan by plaintiff was to Madeira. 42. No response required. WHEREFORE, defendant demands judgment in his favor and against plaintiff. COUNT II 43. Defendants incorporate their answers to the above paragraphs. 44. Defendant did not represent plaintiff for the transaction. 45. Defendant did not represent plaintiff for the transaction. 46. The averment of this paragraph is a conclusion of law to which no -7- SWARTZ CAMPBELL LLC ATTORNEYS AT LAW response is required. 47. Denied. Defendant is not liable to plaintiff. After reasonable investigation defendants are without knowledge or information sufficient to form a belief about whether and the extent to which plaintiff sustained damages. The alleged damages are not due to actionable conduct by Ahrens. WHEREFORE, defendant demands judgment in its favor and against plaintiff. COUNT III 48. Defendants incorporate their answers to the above paragraphs. 49. Admitted in part, denied in part. Defendant did not represent to plaintiff the transaction was an investment or that there was no risk. Defendant told plaintiff the transaction was a loan. 50. Admitted in part, denied in part. Defendant did not represent to plaintiff the note and mortgage would fully secure the loan. The transaction was not an investment. The transaction was a loan. 51. Admitted in part, denied in part. Defendant informed plaintiff the terms of the loan provided for repayment plus fifty percent paid in accordance with the provisions of the documents for the transaction. 52. Denied. Defendant did not misrepresent information to plaintiff. 53. Denied. Defendant did not misrepresent information to plaintiff. 54. Denied. Defendant did not misrepresent information to plaintiff. 55. Denied. Defendant did not misrepresent information to plaintiff. -8- SWARTZ CAMPBELL LLC ATTORNEYS AT LAW Plaintiff did not justifiably rely on defendant for information. 56. Denied. Defendant did not misrepresent information to plaintiff. Plaintiff did not justifiably rely on defendant for information. After reasonable investigation defendants are without knowledge or information sufficient to form a belief about whether and the extent to which plaintiff sustained damages. The alleged damages are not due to actionable conduct by defendants. WHEREFORE, defendants demand judgment in their favor and against plaintiff. COUNT IV 57. Defendants incorporate their answers to the above paragraphs. 58. Denied. Defendant did not owe a fiduciary duty to plaintiff. Defendant was not plaintiff's lawyer for the transaction. 59. Denied. Defendant did not owe a fiduciary duty to plaintiff, did not breach a duty to plaintiff, and did not misrepresent information to plaintiff. 60. Denied. Defendant did not owe a fiduciary duty to plaintiff, and did not breach a duty to plaintiff. Defendant was not plaintiffs lawyer for the transaction. Defendant was not obligated to assure plaintiff's loan was fully secured. 61. Denied. Defendant did not owe a fiduciary duty to plaintiff, and did not breach a duty to plaintiff. After reasonable investigation defendants are without knowledge or information sufficient to form a belief about whether and the extent to which plaintiff sustained damages. The alleged damages are not due to actionable -9- SWARTZ CAMPBELL LLC ATTORNEYS AT LAW conduct by defendants. 62. Denied. Defendant did not owe a fiduciary duty to plaintiff, and did not breach a duty to plaintiff. WHEREFORE, defendants demand judgment in their favor and against plaintiff. NEW MATTER 63. Plaintiff cannot state a cause of action for which relief may be granted. 64. There was no agreement between plaintiff and defendants for representation, legal services, advice or assistance for the transaction. 65. Plaintiff did not request defendants provide representation, legal services, advice, or assistance for the transaction. 66. There was no fee agreement between plaintiff and defendants for services for the transaction. 67. Plaintiff did not pay a retainer or agree to pay defendants for services for the transaction. 68. Defendant did not bill plaintiff or request plaintiff pay defendants for services for the transaction. 69. Plaintiff did not pay defendants for services for the transaction. 70. Defendant did not agree to provide representation, services, advice, or assistance to plaintiff for the transaction. 71. Defendant properly prepared the documents for the transaction. -10- SWARTZ CAMPBELL LLC ATTORNEYS AT LAW 72. The documents prepared by defendant for the transaction were not deficient. 73. Plaintiff did not exercise appropriate care for his own protection. 74. Plaintiffs lack of care for his own protection was a substantial factor, and the factual and legal cause of his alleged loss. 75. Plaintiffs recovery is barred by contributory negligence. 76. Collateral estoppel precludes plaintiff from relitigating in this action issues which were decided in other proceedings in which plaintiff was a party 77. Plaintiff is estopped from asserting a contention or establishing a fact which is different than a contention or fact which plaintiff agreed existed or which plaintiff asserted in other proceedings. 78. WHEREFORE, defendants demand judgment in their favor and against plaintiff. SWARTZ CAMPBELL LLC ATE: DATE:- -11- -11- B.1UCARRON B. SWARTZ CAMPBELL LLC ATTORNEYS AT LAW CERTIFICATE OF SERVICE I, Jeffrey B. McCarron, Esquire, counsel for defendants, Thomas J. Ahrens and Thomas J. Ahrens t/d/b/a Ahrens Law Office, hereby certify that a copy of the answer of defendants to complaint with new matter was served upon all parties listed below by first class, U.S. mail, return receipt requested, postage prepaid on July 10, 2009: John G. Milakovic, Esquire Beckley & Madden 212 North 3rd Street P. O. Box 11998 Harrisburg, PA 17108 SWARTZ CAMPBELL LLC ATTORNEYS AT LAW C7/l0/09 04:52PM VOLACCOUFTING VERIFICATION The undersigned verifies that the facts set forth in answer of defendants to complaint with new matter are true and correct. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa C.S.A. §4904, relating to unsworn falsification to authorities. Date: -1 'k 0 - a°` r , ?.??? :?:? { r'? r. -. 1 1 I?. '.il'. ?t?=7 ? -_ SWARTZ CAMPBELL LLC BY: Jeffrey B. McCarron Robyn D. Finkelman Identification No. 49467/92378 Two Liberty Place 50 S. 16th Street, 28th Floor Philadelphia, PA 19102 (215) 299-4296 ----------------------------------------- DAVID E. RICKER , Plaintiff, v THOMAS J AHRENS and AHRENS LAW FIRM, P.C. Attorneys for Defendants, Thomas J. Ahrens and Ahrens Law Firm, P.C. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Civil Action No. 2009-3558 Defendants. PRELIMINARY OBJECTIONS BY THOMAS J. AHRENS, ESQUIRE, AND AHRENS LAW FIRM, P.C. TO PLAINTIFF'S AMENDED COMPLAINT Defendants, Thomas J. Ahrens, Esquire, and Ahrens Law Firm, P.C. by their attorneys, Swartz Campbell LLC, assert preliminary objections to the amended complaint pursuant to Pa.R.C.P. 1028. Paragraph 58 of plaintiffs amended complaint should be stricken. Defendants aver in support thereof: 1. This action arises out of an investment made by plaintiff. See amended complaint, attached hereto as Exhibit "A." 2. Plaintiff, David E. Ricker, is an adult individual who maintains a place of business at 325 Eastern Drive, Harrisburg, Dauphin County, Pennsylvania. See amended complaint at ¶ 1. SWARTZ CAMPBELL LLC ATTORN EVS AT LAW 3. In November 2008, during a telephone conversation, Ricker and Jeffrey Mealy, Ricker's business partner, asked Ahrens to do legal work for them in connection with the development of alaser-guided hunting bow with built-in rangefinder. See amended complaint at ¶ 4. 4. Ahrens allegedly agreed, and subsequently an attorney at Ahrens Law prepared a Nondisclosure Agreement for Ricker and Mealy and outside parties, and arranged a meeting for them with patent counsel. See amended complaint at ¶ 4. 5. During this phone call, Ahrens spoke with both Ricker and Mealy about a possible investment opportunity involving the purchase of gold. See amended complaint at ¶ 5. 6. Plaintiff alleges that Ahrens indicated that the investment guaranteed a 100-percent profit and presented no risk, because the funds Ricker invested would be secured by a note and a mortgage on real property. See amended complaint at ¶ 5. 7. On December 10, 2008, Ricker transferred $400,000.00 from his account at Citigroup into Ahrens Law's account. See amended complaint at ¶ 7. 8. Plaintiff alleges that Ahrens explained that the money would be transferred to Alfred Madeira's account, and that Madeira would then transfer the funds into Sean Healy's account. See amended complaint at ¶ 8. 9. Healy would then make the investment. See amended complaint at 118. 10. Ahrens executed a Note on behalf of Madeira, dated December 11, 2008, in favor of Ricker. See amended complaint at ¶ 9. 2 SWARTZ CAMPBELL LLC ATTORNEYS AT LAW 11. Plaintiff alleges that Ahrens claimed to have power of attorney issued to him by Madeira, which authorized him to sign documents on Madeira's behalf. See amended complaint at ¶ 9. 12. The Note said that Madeira agreed to pay to Ricker, on or before March 31, 2009, the principal sum of $400,000.00, plus "total fees and interest of Two Hundred Thousand Dollars ($200,000.00)," or a total amount of $600,000.00. See amended complaint at 119. 13. A December 17, 2008 Note replaced the December 11, 2008 Note and was signed by Madeira himself. See amended complaint at ¶ 10. 14. The December 17, 2008, Note refers to, but does not specifically identify, "Mortgaged Property," and has attached to it a description of real property in Monroe Township, Cumberland County, Pennsylvania. See amended complaint at ¶ 10. 15. Ahrens also provided to Ricker a Mortgage, dated December 17, 2008, executed by Madeira on behalf of Madeira Operations, LLC, in favor of Ricker, on two parcels of real property in Monroe Township, Cumberland County, Pennsylvania. See amended complaint at ¶ 11. 16. Ahrens notarized Madeira's signature on the Mortgage. See amended complaint at ¶ 11. 17. Because Ahrens allegedly agreed to represent Ricker in connection with the laser-guided bow, and because Ricker on several occasions had spoken with 3 SWARTZ CAMPBELL LLC ATTORNEYS AT lAW Ahrens concerning estate planning matters, Ricker believed that Ahrens was representing Ricker's interests in the transaction with Madeira. See amended complaint at ¶ 12. 18. Ricker alleges he spoke with Ahrens periodically to monitor the progress of the investment. See amended complaint at ¶ 20. 19. In February 2009, Ricker alleges that Ahrens told him that gold had "hit its mark," and that Ahrens expected an early pay-off on the investment. See amended complaint at ¶ 20. 20. On March 12, 2009, Ahrens emailed Ricker and asked Ricker to call him the next day to talk about the Ricker Mortgage. See amended complaint at ¶ 22. 21. Plaintiff alleges Ahrens advised Ricker to record the Mortgage on March 13, 2009. See amended complaint at ¶ 22. 22. Ahrens emailed to Ricker a substitute legal description of the property subject to the Mortgage, indicating only that the original description was incorrect. See amended complaint at ¶ 22. 23. Ahrens told Ricker to discuss this with Madeira. See amended complaint at ¶ 22. 24. Madeira told Ricker that Madeira had negotiated a deal with Healy, pursuant to which all investors, including Ricker, would receive back the principal amount of their investment, but nothing more. See amended complaint at ¶ 23. 25. Ricker recorded the Mortgage in Cumberland County on March 13, 4 SWARTZ CAMPBELL LLC ATTORNEYS AT LAW 2009. See amended complaint at ¶ 24. 26. When he did so, he learned that the property was already subject to three other mortgages, which together totaled $1,750,000.00. See amended complaint at ¶ 24. 27. Ricker has not received the return of his $400,000.00. See amended complaint at ¶ 25. 28. Count four of the amended complaint asserts a claim of breach of fiduciary duty against Ahrens and Ahrens Law. See amended complaint. 29. Plaintiff alleges that Ahrens owed a fiduciary duty to Ricker by virtue of Section 552 of the Restatement (Second) of Torts. See amended complaint at ¶ 58. 30. Plaintiff alleges that Ahrens breached that fiduciary duty by making false representations to Ricker and by failing to ensure that Ricker's investment of $400,000.00 was fully secured. See amended complaint at ¶ 59-60. 31. Section 552 of the Restatement (Second) of Torts can be used to support a claim for negligent misrepresentation but not breach of fiduciary duty. 32. Preliminary objections in the nature of a demurrer admit as true all well pled factual averments and all inferences fairly deducible therefrom, but not conclusions of law. 33. A preliminary objection in the nature of a demurrer is properly sustained where the complaint has failed to set forth a cause of action. 34. Preliminary objections must be granted if a plaintiff does not plead 5 SWAR7Z CAMPBELL LLC ATTORNEYS AT LAW factual allegations to support legal contentions in a complaint. 35. A court is "precluded from considering any conclusions of Iaw or inferences which are not supported by the factual allegations contained in the complaint." 36. The court "must not supply a fact missing in the complaint" in order to cure a defect in the pleading. 37. In Pennsylvania, to state a claim for breach of fiduciary duty a plaintiff must allege: (1) that the defendant acted negligently or intentionally failed to act in good faith and solely for the benefit of the plaintiff in all matters for which he or she was employed; (2) that the plaintiff suffered injury; and (3) that the agent's failure to act solely for the plaintiffs benefit was a real factor in bringing about plaintiffs injuries. 38. Section 552 of the Restatement (Second) of Torts can be used to support a claim for negligent misrepresentation but not breach of fiduciary duty. 39. "Pennsylvania has adopted the standard for negligent misrepresentation set forth in section 552 of the Restatement (Second) of Torts." 40. Section 552 provides: One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. Restatement (Second) of Torts § 552. 6 SWARTZ CAMPBELL LLC ATTORNEYS AT LAW 41. Plaintiff alleges in his complaint that Ahrens owed a fiduciary duty to Ricker. See amended complaint at § 58. 42. Plaintiff alleges that alternatively, Ahrens owed such a duty to Ricker by virtue of Section 552 of the Restatement (Second) of Torts. See amended complaint at § 58. 43. Plaintiff s belief that Section 552 of the Restatement (Second) of Torts imputes a fiduciary duty upon Ahrens, in order to support a claim for breach of fiduciary duty, is legally incorrect. WHEREFORE, defendants respectfully request that this Court sustain the preliminary objection and strike paragraph 58 of plaintiff's amended complaint. SWARTZ CAMPBELL LLC By: Jeffre B. McCarron Robyn D. Finkelman Attorneys for Defendants Dated: November 122009 7 SWARTZ CAMPBELL LLC ATTORNEYS AT LAW CERTIFICATE OF SERVICE I, Robyn D. Finkelman, Esquire, counsel for defendants, Thomas J. Ahrens, Esquire, and Ahrens Law Firm, P.C., hereby certify that copies of the preliminary objections to plaintiff's amended complaint were served upon all parties listed below by first class, U.S. mail, on November 12, 2009: John G. Milakovic, Esquire Charles O. Beckley, II, Esquire Beckley & Madden 212 North 3rd Street P. O. Box 11998 Harrisburg, PA 17108 SWARTZ CAMPBELL LLC By: Roby D. Finkelman SWARTZ CAMPBELL LLC ATTORNEYS AT LAW c~ DAVID E. KICKER, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, :PENNSYLVANIA v. THOMAS J. AHRENS and AHRENS LAW :CIVIL ACTION -LAW LAW FIRM, P.C., : NO. 2009-3558 Defendants JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1 (800) 990-9108 (717) 249-3166 John G Milakovic, Esquire Attorney No. 34843 Charles O. Beckley, II, Esquire Attorney No. 47564 BECKLEY & MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 (717)233-7691 DAVID E. RICKER, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, :PENNSYLVANIA v. THOMAS J. AHRENS and AHRENS LAW :CIVIL ACTION -LAW LAW FIRM, P.C., Defendants NO. 2009-3558 AMENDED COMPLAINT AND NOW comes the Plaintiff, David E. Ricker, who, by and through his attorneys, John G. Milakovic, Esquire, Charles O. Beckley, II, Esquire, and Beckley & Madden, of Counsel, files this Amended Complaint, and in support thereof avers as follows: PARTIES 1. Plaintiff is David E. Ricker ("Ricker"), an adult individual who maintains a place of business at 325 Eastern Drive, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant Thomas J. Ahrens ("Ahrens"), is an adult individual and an attorney licensed to practice law in the Commonwealth of Pennsylvania. Ahrens resides at 3017%s Dickinson Avenue, Camp Hill, Cumberland County, Pennsylvania 17011, and maintains a place of business at 52 Gettysburg Pike, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. Defendant Ahrens Law Firm, P.C. ("Ahrens Law), is a Pennsylvania professional corporation, which maintains offices at 52 Gettysburg Pike, Mechanicsburg, Cumberland County, Pennsylvania. Upon information and belief, Ahrens is both an officer and an employee of Ahrens Law. BACKGROUND FACTS 4. In November, 2008, while Ricker and Jeffrey Mealey, one of Kicker's business partners, were traveling outside of the Commonwealth, they spoke to Ahrens by cell phone. They asked him to do legal work for them in connection with the development of alaser-guided hunting bow with built-in rangefinder. Ahrens agreed, and subsequently an attorney at Ahrens Law prepared a Nondisclosure Agreement for Ricker and Mealy and outside parties, and arranged a meeting for them with patent counsel. 5. During the cell phone call, Ahrens also spoke with Ricker and Mealy about a possible investment opportunity. The deal Ahrens described involved the purchase of gold. Ahrens indicated that the investment guaranteed a 100-percent profit and presented no risk, because the funds Ricker invested would be secured by a note and a mortgage on real property. 6. When he returned to Peru~sylvania, Ricker contacted Ahrens about the investment opportunity. Ahrens told him that the investment which promised a 100-percent return was fully-subscribed, but that another opportunity existed which would guarantee a 50-percent return. Ahrens again represented that the deal presented no risk. The funds which Ricker invested would be secured by a note and a mortgage on real property. When gold hit its "target number" the deal would be "locked" and the funds would be paid to the investors. Ahrens told Ricker, however, that he had to meet with him the next day or the deal might be lost. 2 7. On December 10, 2008, Ricker caused $400,000.00 to be wire transferred from his account at Citigroup into Ahrens Law's account. Ricker then went to Ahrens' office at Ahrens Law on December 10, 2008, and met with Ahrens. 8. During their meeting, Ahrens explained to Ricker that Ahrens would transfer Ricker's $400,000.00 into the account of Alfred L. Madeira ("Madeira"}, of Chambersburg, Franklin County, Pennsylvania, and that Madeira would then transfer the funds into an account maintained by Sean Healy ("Healy") in Florida. Healy would then make the investment. Ahrens showed Ricker a document which Ahrens represented to be a statement for one of Healy's trading accounts, which indicated that the account had a balance of in excess of $79,000,000.00. Ahrens also allegedly spoke to Madeira twice by telephone in Kicker's presence. 9. At the meeting at Ahrens Law Ahrens executed on Madeira's behalf a Note, dated December 11, 2008, in favor of Ricker. Ahrens claimed to have a power of attorney issued to him by Madeira which authorized him to sign documents on Madeira's behalf. According to the terms of the Note, Madeira agreed to pay to Ricker, on or before March 31, 2009, the principal sum of $400,000.00, plus "total fees and interest of Two Hundred Thousand Dollars ($200,000.00)," or a total amount of $600,000.00. (Note, p. 1) A copy of the December 11, 2008 Note is attached hereto as Exhibit A. 10. Ahrens later substituted a new Note, dated December 17, 2008, for the December 11, 2008, Note executed by Ahrens on Madeira's behalf. The new December 17, 2008, Note was allegedly signed by Madeira himself. The December 17, 2008, Note refers to, but does not specifically identify, "Mortgaged Property," and has attached to it a description of real property in Monroe Township, Cumberland County, Pennsylvania. A copy of the December 17, 2008, Note is attached hereto as Exhibit B. 3 1 I . Ahrens also provided to Ricker a Mortgage ("the Ricker Mortgage") dated December l7, 2008, executed by Madeira on behalf of Madeira Operations, LLC ("Madeira Operations"}, a Pennsylvania limited liability company, in favor of Ricker, on two parcels of real property in Monroe Township, Cumberland County, Pennsylvania (`the Property"). A copy of the Ricker Mortgage is attached hereto as Exhibit C. Ahrens, in his capacity as a notary public, acknowledged Madeira's signature on behalf of Madeira Operations on the Ricker Mortgage. A notation appearing on the upper left hand corner of the Mortgage's first page directs the Recorder to return the Mortgage to Ahrens Law after recording. 12. Because Ahrens had agreed to represent Ricker and Mealey in connection with the Laser-guided bow, and because Ricker on several occasions had spoken with Ahrens concerning estate planning matters, at the December 10, 2008, meeting with Ahrens at Ahrens Law, and at all times thereafter, Ricker believed that Ahrens was representing Ricker's interests in the transaction with Madeira. Ahrens did nothing to dispel this impression. He prepared the Notes and the Ricker Mortgage and provided them to Ricker. He did not advise Ricker to have the Notes and the Ricker Mortgage reviewed by independent counsel, nor did Ahrens ever indicate that he did not represent Ricker in the transaction. Ahrens directed Ricker to transfer the $400,000.00 into Ahrens Law's account, instead of directly to Madeira. 13. Ahrens told Ricker that the Note and the Ricker Mortgage would secure the repayment of Ricker's $400,000.00. Ahrens knew, or should have known, this statement to be false, however, particularly with regard to the Mortgage, because when Madeira executed the Ricker Mortgage Ahrens knew that the Property was already subject to three other mortgages. 14. First, on August I5, 2006, Madeira Operations granted an Open-End Mortgage on the Property to The First National Bank of Mercersburg ("the Mercersbuxg I Mortgage"), in the 4 principal amount of $700,000.00, which was recorded in the Cumberland County Recorder of Deeds' Office on August 16, 2006, in Mortgage Book 1962, Page, 2811, and re-recorded on October 20, 2006, in Mortgage Book 1970, Page 273. Madeira executed the Mercersburg I Mortgage on behalf of Madeira Operations. Ahrens' father, Judd M. Ahrens, a notary public and an officer and employee of Ahrens Law, acknowledged Madeira's signature on the Mercersburg I Mortgage. 15. On May 31, 2007, Madeira Operations issued a second mortgage on the Property to The First National Banl< of Mercersburg ("the Mercersburg II Mortgage"), in the principal amount of $450,000.00, which was recorded in the Cumberland County Recorder of Deeds' Office on June 1, 2007, in Mortgage Book 1994, Page 1576. Again, Madeira executed the Mercersburg II Mortgage on behalf of Madeira Operations and, again, Judd Ahrens acknowledged Madeira's signature. 16. Finally, on December 15, 2008 -just two days before executing the Ricker Mortgage - Madeira Operations gave a mortgage on the Property to Angela Hickey ("the Hickey Mortgage"}, in the principal sum of $590,000.00. Ahrens himself acknowledged Madeira's signature on the Hickey mortgage. The Hickey mortgage was recorded in the Cumberland County Recorder of Deeds' Office on March 29, 2009, as Instrument Number 200908665. 17. In summary, prior to granting the Ricker Mortgage to Ricker on December 17, 2008, Madeira Operations had already granted three previous mortgages on the Property -the August 15, 2006, Mercersburg I Mortgage ($700,000.00}; the May 31, 2007, Mercersburg II Mortgage ($450,000.00}; and the December I5, 2008, Hickey Mortgage ($590,000.00) -the principal amounts of which together totaled $1,740,000.00. Upon information and belief, the total amount of these first three mortgages far exceeds the fair market value of the Property. 5 i 8. Upon information and belief, Ahrens knew of the existence of these three mortgages on the Property when Madeira signed the Ricker Mortgage. Ahrens did not tell Ricker about the mortgages, however, nor did Ahrens advise Ricker to have the Property's title searched before Ricker advanced the $400,000.00 to Ahrens Law, nor did Ahrens afford Ricker time to do so, since Ahrens insisted that the funds had to be transferred to Madeira immediately for the deal to close. 19. Instead, exploiting the heightened credibility that attended his status as an attorney, Ahrens told Ricker that the investment which he advised Ricker to make carried "no risk" - it was a sure thing, a "no brainer." 20. After their meeting on December 11, 2008, Ricker spoke with Ahrens periodically to monitor the progress of the investment. In February, 2009, Ahrens told Ricker that gold had "hit its mark," and that Ahrens expected an early pay-off on the investment. Ricker telephoned Ahrens again in late February, 2009, and Ahrens again indicated that gold had hit its mark and that he planned to meet with Madeira and Healy to discuss payouts on the investment. 21. During their telephone call in late February, 2009, Ahrens solicited Ricker to invest another $250,000.00, to buy more gold. Ricker refused to invest any additional funds, however, until he received the full return of his first investment. 22. On March 12, 2009, Ahrens emailed Ricker and asked Ricker to call him the next day to talk about the Ricker Mortgage. Ricker spoke by telephone with Ahrens on March 13, 2009, and Ahrens advised Ricker to record the Ricker Mortgage. That same day, Ahrens emailed to Ricker a substitute legal description of the Property subject to the Ricker Mortgage, indicating only that the original description was incorrect. Ricker telephoned Ahrens to discuss the reason for the substitute description and Ahrens suggested that Ricker contact Madeira. 6 23. Ricker telephoned Madeira. Madeira told Ricker that Madeira had negotiated a deal with Healy, pursuant to which all of the investors, including Ricker, would receive back the principal amount of their investment, but nothing more, i.e. no 50-percent profit. Ricker asked Madeira why Madeira believed that Healy would in fact return the investors' money. Madeira responded, " 20 years of prison." 24. Taking Ahrens' advice, Ricker recorded the Ricker Mortgage in the Cumberland County Recorder of Deeds' Office on March 13, 2009, as Instrument Number 200907326. When he did so, lie learned that the Property was already subject to three other mortgages, which together totaled $1,350,000.00. Ricker's Mortgage increased the total of the liens recorded against the Property to $1,750,000.00. (The three mortgages recorded ahead of Ricker's were the Mercersburg I and II Mortgages and a mortgage which Madeira Operations had granted to Neil Barr the previous day, March 12, 2009 ("the Barr Mortgage"}, in the principal amount of $200,000.00, and which was recorded on March 12, 2009, in the Cumberland County Recorder of Deeds' Office as Instrument Number 200907326. Like the Ricker Mortgage, the Barr Mortgage contains a notation on the upper left hand corner of the first page directing the Recorder to return it to Ahrens Law. Although the Hickey Mortgage predated the Ricker Mortgage, it was not recorded until March 29, 2009, as Instrument Number 200908665.) 25. Despite repeated demands therefor, and despite prosecuting claims against Healy in federal court in Florida and against Madeira in state court in Pennsylvania, Ricker has yet to receive the return of any of his $400,000.00. 26. On April 14, 2009, Madeira filed a voluntary petition for bankruptcy under Chapter 1 I of the Bankruptcy Code in the United States Bankruptcy Court for the Middle Distxict of Pennsylvania in Harrisburg. Madeira's petition is docketed to No. 1:09-bk-02819-MDF. 7 27. Given Madeira's bankruptcy and the three mortgages which have priority over the Ricker Mortgage, the Note and the Ricker Mortgage which Ahrens prepared to secure the $400,000.00 advanced by Ricker are of no value. COUNT I -FOR PROFESSIONAL LIABILITY AGAINST AHRENS 28. Ricker hereby incorporates herein by reference as thought set forth in full the preceding Paragraphs I -27 of this Complaint. 29. Ahrens is an attorney licensed to practice law in the Commonwealth of Pennsylvania with offices in Cumberland County, Pennsylvania. Ricker is asserting a professional liability claim against Ahrens. 30. Ahrens acted as Riclcer's attorney in the transaction with Madeira and Healy by drafting the Note and the Ricker Mortgage which Ahrens said would secure the repayment of Kicker's investment. Preparation of the Note and the Ricker Mortgage was well within Ahrens' competence as an attorney. 31. Ahrens directed Ricker to transfer the $400,000.00 which was to be used to fund the transaction with Madeira into Ahrens Law's account. Ricker agreed to wire $400,000.00 into Ahrens Law's account based on Ahrens' assurances that the Note and Mortgage which Ahrens would prepare would secure the repayment of the funds advanced by Ricker. 32. Ahrens directed Ricker to come to Ahrens' law office to finalize the transaction and to obtain the documents prepared by Ahrens which would secure the repayment of Kicker's $400,000.00. 33. Ahrens never advised Ricker to obtain independent counsel, or to have independent counsel review the documents, i.e. the Note and the Ricker Mortgage, prepared by Ahrens. 8 Ahrens never indicated to Ricker that Ahrens did not represent Ricker's interests in the transaction with Madeira and Healy. 34. Ahrens conveyed the impression to Ricker, and under the circumstances it was reasonable for Ricker to believe, that Ahrens was acting as Ricker's attorney and representing Ricker's interests in the transaction with Madeira and Healy. 35. Ricker accepted and relied upon the advice and legal services provided to him by Ahrens in connection with the transaction with Madeira and Healy. 36. Ahrens failed to exercise ordinary skill and knowledge in his representation of Ricker in the transaction with Madeira and Healy when Ahrens represented to Ricker that the transaction with Madeira represented a "no risk," fully secure investment opportunity. 37. Ahrens failed to exercise ordinary skill and knowledge in his representation of Ricker in the transaction with Madeira and Healy when Ahrens failed to ensure that the documents which he drafted would in fact secure the repayment of Ricker's investment, and when he failed to advise Ricker of the three mortgages on the Property which Madeira Operations had granted to other parties before Madeira Operations executed the Ricker Mortgage. 38. Ahrens failed to exercise ordinary skill and knowledge in his representation of Ricker in the transaction with Madeira and Healy when Ahrens failed to advise Ricker to obtain an examination of the title to the Property owned by Madeira Operations before transferring $400,000.00 to Ahrens, to ensure that the Ricker Mortgage would have priority over any other liens against the Property, and when Ahrens failed to advise Ricker to obtain an examination of Madeira's and Healy's credit history. 9 39. Ahrens failed to exercise ordinary skill and knowledge in his representation of Ricker in the transaction with Madeira and Healy because the documents drafted by Ahrens failed to contain such standard provisions as a clause authorizing the confession of judgment against Madeira (the Note) or against the Property (the Ricker Mortgage), thereby rendering it more difficult and more expensive for Ricker to recover any portion of his investment in the event of a default. 40. Alternatively, Ahrens failed to exercise ordinary skill and knowledge by failing to advise Ricker to have independent counsel examine the Note and the Ricker Mortgage before Ricker wired $400,000.00 into Ahrens Law's account, and by failing to advise Ricker that Ahrens did not represent Rieker's interests in the transaction with Madeira and Healy. 41. By reason of Ahrens' negligence, as aforesaid, Ricker has suffered damage by the loss of the $400,000.00 which he advanced through Ahrens Law to Madeira and Healy. 42. The amount sought by Ricker in this action exceeds the amount required for submission of the matter to compulsory arbitration. WHEREFORE, Plaintiff, David E. Ricker, respectfully requests the Court to enter judgment in his favor and against Ahrens, and to direct Ahrens to pay to Ricker damages in the amount of $400,000.00, plus prejudgment and post judgment interest, costs of suit, and to award to Ricker such other and further general relief which the Court deems appropriate, including, without limitation, all expenses and legal fees incurred by Ricker in any proceeding (other than the current proceeding) wherein Ricker is attempting to recover his losses. 10 COUNT II -PROFESSIONAL LIABILITY AGAINS AHRENS LAW 43. Ricker hereby incorporates herein by reference as thought set forth in full the preceding Paragraphs 1-27 and 29-42 of this Complaint. 44. Upon information and belief, when Ahrens represented Ricker in the transaction with Madeira, Ahrens was an officer and employee of Ahrens Law. 45. Upon information and belief, when Ahrens represented Ricker in the transaction with Madeira, Ahrens was acting within the scope of his employment with, and as an agent of, Ahrens Law. 46. Ahrens Law is liable for the actions of its officer, agent and employee Ahrens. 47. Consequently, Ahrens Law is liable to Ricker for the damages caused to Ricker by Ahrens while acting within the scope of his employment with Ahrens Law. WHEREFORE, Plaintiff, David E. Ricker, respectfully requests the Court to enter judgment in his favor and against Ahrens Law, and to direct Ahrens Law to pay to Ricker damages in the amount of $400,000.00, plus prejudgment and post judgment interest, costs of suit, and to award to Ricker such other and further general relief which the Court deems appropriate, including, without limitation, all expenses and legal fees incurred by Ricker in any proceeding (other than the current proceeding) wherein Ricker is attempting to recover his losses. COUNT III -FOR NEGLIGENT MISREPRESENTATION AGAINST AHRENS AND AHRENS LAW 48. Ricker hereby incorporates herein by reference as thought set forth in full the preceding Paragraphs 1-27, 29-42 and 44-47 of this Complaint. Alternatively, at some point beginning, at the latest, in 2008, and continuing through 2009, Ahrens and Ahrens Law began 11 performing professional legal services in connection with Madeira's efforts to secure funds for investments Madeira was malting with Healy. The legal services performed by Ahrens and Ahrens Law regularly included preparing and providing legal documents (such as joint venture agreements, notes, and mortgages) to third parties, such as Ricker, with the intent of influencing those third parties to make loans, or financial contributions, to Madeira, and with the foreseeable result that those third parties would rely upon said legal documents and advance the funds. While Ricker believed that Ahrens and Ahrens Law were representing Ricker in Ricker's particular transaction, unbeknownst to Ricker, Ahrens and Ahrens Law have indicated (after the fact) that they were actually representing Madeira. 49. Ahrens represented to Ricker that the investment opportunity with Ahrens, Madeira and Healy carried no risk and promised a guaranteed return. 50. Ahrens represented to Ricker that the Note and the Mortgage would fully secure the $400,000.00 which Ricker invested. 51. Ahrens represented to Ricker that Ricker would receive repayment in full of his $400,000.00 investment, plus a 50 percent profit of $200,000.00, within less than four months. 52. Ahrens knew, or should have known, that these representations were false. 53. Ahrens made all of these representations to Ricker in order to induce Ricker to transfer $400,000.00 through Ahrens Law's account to Madeira and Healy. 54. When Ahrens made these representations, he did so in the course of his employment, and as an officer and agent of Ahrens Law. 55. Given Ahrens' status as an attorney representing Ricker in the transaction, Ricker justifiably relied on Ahrens' representations. Alternatively, given the facts that Ahrens and Ahrens Law were in the business of providing legal documents and information; and that it was 12 intended and foreseeable that the information and legal documents would be used and relied upon by third parties, such as Ricker, it was justifiable for Ricker to rely upon the legal advice and documents. Furthermore, pursuant to Section 552 of the Restatement (Second) of Torts, Ahrens had a duty to Ricker under the circumstances not to make misrepresentations in connection with the information and legal documents prepared and provided. 56. As a direct result of his justifiable reliance on Ahrens' representations, Ricker has suffered the loss of $400,000.00. WHEREFORE, Plaintiff, David E. Ricker, respectfully requests the Court to enter judgment in his favor and against Ahrens and Ahrens Law, and to direct Ahrens and Ahrens Law to pay to Ricker damages in the amount of $400,000.00, plus prejudgment and post judgment interest and costs of suit, acid to award to Ricker such other and further general relief which the Court deems appropriate, including, without limitation, all expenses and legal fees incurred by Ricker in any proceeding (other than the current proceeding) wherein Ricker is attempting to recover his losses. COUNT IV -FOR BREACH OF FIDUCIARY DUTY AGAINST AHRENS AND ' AHRENS LAW 57. Ricker hereby incorporates herein by reference as thought set forth in full the preceding Paragraphs 1-27, 29-42, 44-47 and 49-56 of this Complaint. 58. As his attorney, Ahrens owed a fiduciary duty to Ricker. Alternatively, Ahrens owed such a duty to Ricker by virtue of Section 552 of the Restatement (Second) of Torts. 59. Ahrens breached his fiduciary duty to Ricker by making the false representations to Ricker set forth in Paragraphs 49 through 51 of this Complaint. 13 60. Ahrens breached his fiduciary duty to Ricker by failing to ensure that Ricker's investment of $400,000.00 was fully secured. 61. Ahrens breach of his fiduciary duty to Ricker caused Ricker to suffer damages in the amount of $400,000.00. 62. Ahrens breached his fiduciary duty to Ricker while acting within the scope of and during the course of his employment with Ahrens Law. WHEREFORE, Plaintiff, David E. Ricker, respectfully requests the Court to enter judgment in his favor and against Ahrens and Ahrens Law, and to direct Ahrens and Ahrens Law to pay to Ricker damages in the amount of $400,000.00, plus prejudgment and post judgment interest, costs of suit, and to award to Ricker such other and further general relief which the Court deems appropriate, including, without limitation, all expenses and legal fees incurred by Ricker in any proceeding (other than the current proceeding} wherein Ricker is attempting to recover his losses. Dated: r n l23 , 2009 Of Counsel BECKLEY & MADDEN 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 Respectfully submitted, ohn G. Milakovic, Esquire Atto ey No. 34843 ~ ~~~~ Charles O. Beckley, II, squire Attorney No. 47564 Attorneys for Plaintiff David E. Ricker 14 OCT-26-2009 MON 12 00 PM Beckley ~ I{adden FAX NQ. 7172333740 P, 02 VEIRLFICAI'ION Y, David E. Rider, hereby verify that I am an adult individual; that Y am tl~ Plaintiff in the foregoing Amended CotupL?~ and that the face set forth therein are true Do the best of my knowledge and information. I understand that Lake statements herein are made subject to the penalties of 18 PaC.S. §4904, relating to uasworu falsification to authorities. Dated. David E. Ricker ®~~ December 11, 2008 Mechanicsburg, Pennsylvania FOR VALUE RECEIVED, Alfred L. Madeira (hereinafter referred to as the "Maker"} hereby promises to pay to the order of David E. Ricker (the "Payee"), the principal sum of Four Hundred 'Thousand Dollars ($400,000.00) in lawful money of the United States of America. Maker hereby promises to pay total fees and interest of Two Hundred Thousand Dollars ($200,000.00} in Iawfizl money of the United States on or before the Maturity Date as defined below in Section 1.1 of this Note. Total money returned is $600,000.00. Payment of Principal and Interest 1. Principal and interest shall be payable, in lawful money of the United. States of America, at the office of the Payee or such other place as the holder of this Note may designate, in the following manner: 1.1 On March 31, 2009, aII amounts owed are due in full, which is called the Maturity Date. Late Charges 2. The Maker agrees that in the event any payment shall be overdue for a period in excess of thirty (30) days, the Maker shall pay to the Payee a Late charge of five percent (5%) of the amount overdue to cover the additional expense incident to delinquency. This shall not be construed to obligate the Payee to accept any overdue installment nor to limit the Payee's rights and remedies for the Maker's default as set forth in this Note. No Transfer 3. If the Maker shall, without in each instance obtaining the prior written consent of the Payee, sell, transfer, lease, or convey (herein alI called "Transfer") the Mortgaged Property or any interest in it, whether voluntarily or by operation of law, then, at the option of the Payee, the maturity of this Note shall be advanced to the date of the Transfer, and the obligations of the Maker under this Note shall immediately be due and payable. For purposes of this paragraph, if the Maker is a corporation, the sale or transfer of any. stock of the~Maker or the issuance of additional stock of the Maker that results in a transfer of control of the Maker shall constitute a Transfer of the Mortgaged Property; if the Maker is a partnership, the sale or transfer of any partnership interest in the Maker shall constitute a Transfer of the Mortgaged Property. events of default 4. If the Maker fails to pay any sum when due or if the Maker shall in any other way be in default under this Note or if any certification, warranty, or representation made by the Maker to the Payee proves to be materially false, then the entire unpaid principal balance of this Note, together with interest accrued and with all other sums due or owed by the Maker under this Note shall at the option of the Payee and without notice to the Maker become due and payable immediately with interest. After the default and acceleration and until the Maker's indebtedness to the Payee is paid in full, including the period following entry of any judgment, the interest shall accrue at a rate of eight percent (8%) per year. The Maker shall also be liable for attorneys' fees far collection of the Note in the amount of five percent (5%) of the total amount then due by the Maker to the Payee, but in any event not less than $3,000.00 and the cost of any title search incurred by the Payee in connection with the proceedings. Payment of these amounts may be enforced and recovered by the entry of judgment on this Note and the issuance of execution on the judgment. Time is of the essence. Cuarculative Rernedies 5. The remedies of the Payee provided in this Note or otherwise available to the Payee at law or in equity and the warrants of attorney herein or therein contained, shall be cumulative and concurrent, and may be pursued singly, successively, and together at the sole discretion of the Payee, and may be exercised as often as occasion therefore shall occur. The failure to exercise any right or remedy shall in no event be construed as a waiver or release of the right or remedy. Waivers 6. The Maker hereby releases the Payee and the attorney or attorneys from all errors, defects, and imperfections in entering judgment by confession, issuing any process, or instituting any proceedings relating to the confession of judgment. Parties 7. The words "Payee" and "Maker" in this Note shall be deemed and construed to include the respective heirs, personal representatives, successors, and assigns of the Payee and the Maker. The obligation of the persons named as Maker shall be joint and several Construction 8. This instrument shall be construed according to and governed by the laws of the Commonwealth of Pennsylvania. Consent to Jurisdiction 9. Maker hereby consents to the exclusive jurisdiction of the Court of Common Pleas of Cumberland County, Pennsylvania, and/or for the United States District Court for the Middle District of Pennsylvania, in any and all actions or proceedings arising hereunder or pursuant hereto, and irrevocably agrees to service of process by certified mail, return receipt requested, to the address for Maker set forth above or to such other address as Maker may direct by notice to Payee. I1~1 WI'T'NESS WIi]C)E~OI+', the Maker has duly executed this Note under seal on the day and year first written above. WITNESS ( TEST): ~- ~~ ~~ P~ ~'~ (p.` ~' (Seal) Alfred L. Madeira, Borrower COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS On this, the day of December A.D., 2008, before me the undersigned officer, personally appeared Alfred Madeira, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledge that he/she executed the same for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary ~~~~ December 17, 2008 Mechanicsburg, Pennsylva~a F®R ~IALUE RECEI~TED, Alfred L. Madeira (hereinafter referred to as the "Maker"} hereby promises to pay to the order of David E. Ricker (the "Payee"}, the principal sure. of Four hundred Thousand Dollars ($400,000.00) in lawful money of the United States of America. Maker hereby promises to pay total fees and interest of Two Hundred Thousand Dollars ($200,000.00} in lawful money of the United States on or before the 1blaturity Date as defined below in Section 1.1 of this Mote. Total money returned as X600,000.00. Payment ®f Prieaeepal seed Interest 1. Principal and interest shall be payable, in lawful money of the United States of America, at the office of the Payee or such other place as the holder of this Note may designate, in the following manner: 1.1 ®n March 31, 2009, all amounts owed are due in full, which is called the Maturity Date. I.att Clpau°ges 2. The Maker agrees that in the event any payment shall be overdue for a period in excess of thirty (30) days, the Maker shall pay to the Payee a late charge of five percent (5%) of the amount overdue to cover the additional expense incident to delinquency. This shall not be construed to obligate the Payee to accept any overdue installment nor to limit the Payee's rights and remedies for the Maker`s default as set foeth in this Note. N® Transfer 3. If the Maker shall, without~in each instance obtaining the prior written consent of the Payee, sell, transfer, lease, or convey (herein all called "Transfer") the Mortgaged Property or any interest~in it, whether voluntarily or by operation of law, then, at the option of the Payee, the maturity of this Note shall be advanced to the date of the Transfer, and the obligations of the Maker under this Note shall ianrnediately be due and payable. For purposes Qf this paragraph, if the Maker is a corporation, the sale or transfer of any stock of the Maker or the issuance of additional stock of the Maker that results in a transfer of control of the Maker shall constitute a Transfer of the Mortgaged Property; if the Maker is a partnership, the sale or transfer of any partnership interest in the Maker shall constitute a Transfer of the Mortgaged Property. Events of Defa~~alt 4. if the Maker fails to pay any sum when due or if the Maker shall in any other way be in default under this Note or if any certification, warranty, or representation made by the Maker to the Payee proves to be materially false, then the entire unpaid principal balance of this Note, together with interest accrued and with all other sums due or owed by the Maker under this Note shall at the option of the Payee and without notice to the Maker become due and payable immediately with interest. after the default and acceleration and until the Maker's indebtedness to the Payee is paid in full, including the period following entry of any judgrnerrt, the interest shall accrue at a rate of eight percent (8%~ per year. The Maker shall also be liable for attorneys' fees for collection of the Note in the amount of five percent (5%) of the total amount then due by the Maker to the Payee, but in any event not less than $3,000.00 and the cost of any title search incurred by the Payee in connection with the proceedings. Payment of these amounts may be enforced and recovered by the entry of judgment on this Note and the issuance of execution on the judgment. Time is of the essence. C~egeuiatave li~eanedies 5. The remedies of the Payee provided in this Note or otherwise available to the Payee at law or in equity and the warrants of attorney herein or therein contained, shall be cumulative and concurrent, and may be pursued singly, successively, and together at the sole discretion of the Payee, and may be exercised as often as occasion therefore shall occur. The failure to exercise any right or remedy shall in no event be construed as a waiver or release of the right or remedy. ~aivea°s 6. The Maker hereby releases the Payee and the attorney ar attorneys from all errors, defects, and imperfections in entering judgment by confession, issuing any process, or instituting any proceedings relating to the confession of judgment. Psaa~es 7. The words "Payee" and "Maker" in this Note shall be deemed and construed to include the respective heirs, personal representatives, successors, and assigns of the Payee and the Maker. The obligation of the persons named as Maker shall be joint and several Const~cty®n 8. This instrument shall be construed according to and governed by the laws of the Commonwealth of Pennsylvania, C®~nseatt t® ~a~risda`ctnoi+~ 9. Maker hereby consents to the exclusive jurisdiction of the Court of Common Pleas of Cumberland County, Pennsylvania, and/or for the United States District Court for the Middle District of I'ennsyivania, in any and all actions or proceedings arising hereunder or pursuant hereto, and irrevocably agrees to service of process by certified snail, return receipt requested, to the address for Maker set forth above or to such ether address as Maker may direct by notice to Payee, ~ 'I'1~~55 i't')~~it~IF, the Maker has duly executed this Note under sea! on the day and year first written above. ~NITNESS {ATTPcST}: :-,~~"1 ~.~. (Seal) Alfred .Madeira, lg mower COMMDN~/EALTI-I ®P PENNSYLiIANIA C®UNTY ®F Ct3MBERI,AND : SS 9~ ®n this, the ~ ~ day of December A.D., 2008, before me the undersigned officer, personally appeared Alfred Madeira, known to me (or satisfactorily praven) to be the persons wh®se names are subscribed to the within instrument, and acknowledge that helshe executed the same for the purpose therein contained. IN VVITRIESS VVI~iIEREOF, I hereunto set my hand and official seal. OOMMaNWEALTH OF PENNSYLVANIA NoTAxIAL sEAt, "Il~omas J. Ahrens, Notary Public ~ Aden Tovrnshig, CXur~clard Csrcuny co~nissivn ~ Fe t5 3011 Notary ~~R ~coR®~rc ~~ ~®: ~x~~NS t.~-w r<aa~~, >P.c, >Pre¢ar~d ~y: ~z ~ettyslburg i~lce . l~esl~anis~baee~g, Pty 17iB55 Parsel leio.s _~_._____~.~~~____ -~(~¢ase Ab®ve ~'9eis I.tne for P3ecording Ibataym--==~__~-~-_~~_~.---~~-~ M®R'I'~A~E S ~+It)R~'GAG>E is made this 17th day of December, 2008, between the Mortgagor, Madeira Operations, LLC a Pennsylvania Limited Liability Company, (herein "Borrower" or 66M®rtgagor"} whose address is 1124 ICeennebec Drive, Chambersburg, Pennsylvania, and the Mortgagee, David Ricker, (herein "Lender" or "Mortgagee"}. ll~~, Borrower is indebted to Lender in the principal sum of Four Hundred 'thousand Dollars 0400,000.00}, which indebtedness is evidenced by Borrower's note dated Dece~aaber 1'~, 2~Og (herein "Note"}, due and payable on March 31, 2009. 1'® ~ECITRE to Lender (a} the repayment of the indebtedness evidenced by the Nate, with interest thereon, the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Mortgage, and the performance of the covenants and agreements of Boarower herein contained, and (b} the repayment of any future advances, with interest thereon, made to Borrower by Lender pursuant to paragraph 21 hereof (herein "Future Advances"), Borrower does hereby mortgage, grant and convey to Lender certain property located in the County of Cumberland, Commonwealth. of Pennsylvania which is more fully described in Exhibit "A" attached hereto, which has the address of 277 stoner Load, Mechanicsburg, PA 1'%055 (herein "Property Address"}; TO~ETI[~R with all the improvements now or hereafter erected on the property, and all easements, rights, appurtenances, rents, royalties, mineral, oil and gas rights and profits, water, water rights, and water stock, and all fixtures now, or hereafter attached to the property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the property covered by this Mortgage; and all of the foregoing, together with said property {or the leasehold estate if this Mortgage is on a leasehold) axe herein referred to as the "Property." Borrower covenants that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property, that the Property is unencumbered, and that Borrower will warrant and defend generally the title to the Property against all claims and demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions to coverage in any title insurance policy insuring Lender's interest in the Property. Initials IJI®l~F®I[i~ tl"®~iVITS. Borrower and Lender cove;Zant aeld agree as follows: 1. Pay>tgeetnt of Principal and Ilnterest. Borrower shall promptly pay when due the principal of and interest on the indebtedness evidenced by the P~ote, prepayment and late charges as provided in the Dote, and the principal of and interest on any Future Advances secured by this Mortgage. 2. Fu>mds f®r '1i'axes a>ad l~sura;tace. Subject tv applicable Iaw or to a written waiver by Lender, Borrower shall pay to Lender on the day monthly installments of principal and interest are payable under the lelote, until the note is paid in full, a sum (herein "Funds"} equal to ono- twelflh of the yearly taxes and assessments which may attain priority over this Mortgage, and ground rents on the Property, if any, plus one-twelfih of yearly premium installments for hazazd insurance, plus one-twelfth of yearly premium installments for mortgage insurance, if any, all as reasonably esfimated initially and from time to time by Lender on the basis of assessments and bills and reasonable estimates thereof. The Funds shall be held in an institution the deposits or accounts of which are insured or guaranteed by a Federal or state agency (including Lender if Lender is such an institution}. Lender sha11 apply the Funds to pay said taxes, assessments, insurance premiums and ground rents. Lender may not charge far so holding and applying flee Funds, analyzing said accoult, or verifying and compiling said assessments and bills, unless Lender pays Borrower interest on the Funds and applicable law permits Lender to make such a charge. Borrower and Lender may agree in writing at the time of execution of this Mortgage that interest on fhe Funds shall be paid to Borrower, and unless such agreement is made or applicable law requires such interest to be paid, Lender shall not be required to pay Borrower any uaterest or earnings on the Funds. Lender shall give to Borrower, without charge, an annual accounting of the Funds showing credits and debits to the Funds and the purpose for which each debit to the Funds was made. The Funds are pledged as additional security for the sums secured by this I~Iortgage. Tf the amount of the Funds field by Lender, together with the future monthly installments of Funds payable prior to the due dates of taxes, assessments, insurance premiums and ground rents, shall exceed the amount required to gay said taxes, assessments, insurance premiums and ground rents as they fall due, such excess shall be, at Borrower' option, either promptly repaid to Borrower ar credited to Borrower on monthly installments of Funds. If the amount of the Funds held by Lender shall not be sufficient to pay taxes, assessments, insurance premiums and ground rents as they fall due, Borrower shall pay to Lender any amount necessary to make up the deficiency within 3fl days from the date notice is mailed by Lender to Borrower requesting payment thereof. 2 Initials Upon payment in firll of aft surds secured by this Mortgage, Lender shalt promptly refund to Borrower any Funds held by Lender. If under paragraph 1 g hereof the Property is sold or the Property is otherwise acquired by Lender, Lender shaft apply, no later than irru~nediately prior to the sale of the Property ar its acquisition by Lender, any Funds held by Lender at the time of application as a credit against the sums secured by this IVlortgage. 3. t~ppliieata®~n of Paymearts. Unless applicable law provides otherwise, all payments received by Lender under the Note and paragraphs 1 and 2 hereof shall be applied by Lender first in payment of amounts payable to Lender by Borrower under paragraph 2 hereof, then to interest payable on the Note, then to the principal of the Note, and then to interest and prineipaI on any Future Advances. 4. Charges9 ILae>ms. Borrower shall pay all taxes, assessments and other charges, f nes and impositions attributable to the Property which may attain a priority over this Mortgage, and leasehold payments ar ground rents, if any, in the rrrarurer provided under paragraph 2 hereof or, if not paid in such manner, by Borrower making payment, when due, directly to the payee thereof. Borrower shall promptly furnish to Lender aII notices of amounts due under this paragraph, and in the event Borrower shall make payment directly, Borrower shall promptly furnish to Lender receipts evidencing such payments. Borrower shall promptly discharge any lien which has priority over this Mortgage; provided, that Borrower shall not be required to~discharge any such lien so Long as Borrower shall agree in writing to the payment of the obligation secured by such lien in a manner acceptable to Lender, or shall in good faith contest such lien by, or defend enforcerrpent of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Property or any part thereof. 5. hazard Yns~?ran~. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by Errs, hazards included within the term "extended coverage," and such other hazards as Lender may require and in such amounts and for such periods as Lender rrray require; provided, that Lender shall not require that the amount of such coverage exceed ti^iat amount of coverage required to pay the sums secured by this Mortgage, The insurance carrier providing the insurance shall be chosen by Borrower subject to approval by Lender; provided, that such approval shall not be unreasonably withheld. All premiums on insurance policies shall be paid in the manner provided under paragraph 2 hereof or, if not paid in such manner, by Borrower matting payment, when due, directly to the insurance carrier. AlI insurance policies and renewals thereof shall be in form acceptable to Lender and shall include a standard mortgage clause in favor of and in form acceptable to Lender. Lender shall have the right to hold the policies and renewals thereof, and Borrower shall promptly famish to Lender alI renewal notices and all receipts of paid premiums. In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of Loss if not made promptly by Borrower. Initials Unless Lender and Borrower otherwise agree in writing, insurance proceeds shall be applied to restoration or repair of the Property damaged, provided such restoration or repair is economically feasible and the security of this Mortgage is not thereby impaired. If such restoration or repair is not econamically feasible or if the security of this Mortgage would be impaired, the insurance proceeds shall be applied tc> the sums secured by this Mortgage, with the excess, if any, paid to Borrower. If the Property is abandoned by Borrower, or if Borrower fail to respond to Lender within 30 days from the date notice is mailed by Lender to Borrower that the insurance carrier offers to settle a claim for insurance benefats, Lender is authorized to collect and apply the insurance proceeds at Lender's option either to restoration or repair of the Property or to the sums secured by this Mortgage. Unless Lender and Borrower otherwise agree in writing, any such application of proceeds to principal shall not extend or postpone the due date of the monthly installments referred to in paragraphs I and 2 hereof or change the amaunt of such installments. If under paragraph 1 ~ hereof the Property is acquired by Lender, all right, title and interest of Borrower in and to any insurance policies and in and to the proceeds thereof resulting from damage to the Property prior to the sale or acquisition shall pass to Lender to the extent of the sums secured by this Mortgage irnsnediately prior to such sale or acquisition. 6. Pa°esea~ation aa~d l0~ainten~a~ase ®f IPr®perty; Leaselflolds; C®~d®ane~aaue~as; Planned IJr-it 1-evel®pffie~ts. Borrower shall keep the Property in goad repair and shall not commit waste or permit impairment or deterioration of the Property and shall comply with the provisions of any 1_ease if this Mortgage is on a leasehold. If this Mortgage is on a unit in a condominium or a planned unit development, Borrower shall perform all of Borrower' obligations under the declaration or covenants creating or governing the condominium or planned unit development, the by-laws and regulations of the condonuarium or planned unit development, and constituent documents. If a condoxrriniurra or planned unit development rider is executed by Borrower and recorded together with this Mortgage, the covenants and agreements of such rider shall be incorporated into and shall amend and supplement the covenants and agreements of this Mortgage as if the rider were a part hereof. 7. Pr®tectaon of d.emder~s ;~ecua~Htye If Borrower fails to perform the covenants and agreements contained in this Mortgage, or if any action or proceeding is cornpneneed which materially affects Lender's interest in the Property, including, but not limited to, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then Lender at Lenderr's option, upon notice to Borrower, may make such appearances, disburse such sums and take such action as is necessary to protect Lender's interest, including, but not limited to, disbursement of reasonable attorney's fees and entry upon the Property to make repairs. If Lender required mortgage insurance as a condition of making the loan secured by this Mortgage, Borrower shall pay the premiums required to maintain such insurance in effect until such time as the requirement for such insurance terminates in accordance with Borrower' and Lender's written agreement or applicable law. Borrower shalt pay the amount of all mortgage insurance premiums in the manner provided under paragraph 2 hereof. 4 Initiai9 Any amounts disbursed by Lender pursuant to this paragraph 7, with interest thereon, shall become additional indebtedness of Borrower secured by this Mortgage. Unless Borrower and Lender agree to other terms of payment, such amounts shalt be payable upon notice from Lender to Borrower requesting payment thereof, and shall bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the Note unless payment of interest at such rate would be contrary to applicable Iaw, in which event such amounts shall bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph 7 shall require Lender to incur any expense or take any action hereunder. g. Ilaespes~on. Lender may make or cause to be made reasonable entries upon and inspections of the Property, provided that Lender shall give Borrower notice priar to any such inspection specifying reasonable cause therefor related to Lender's interest in the Property. 9. Condeauanatlon. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of the Property, or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender. In the event of a total taking of the Property, the proceeds shall be applied to the sums secured by this Mortgage, with the excess, if any, paid to Borrower. In the event of a partial taking of the Property, unless Borrower and Lender otherwise agree in writing, there shall be applied to the sums secured by this Mortgage such proportion of the proceeds as is equal to that proportion which the amount of the sums secured by this Mortgage immediately prior to the date of taking bears to the fair market value of the Property immediately prior to the date of taking, with the balance of the proceeds paid to Borrower. If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the condemnor offers to make an award or settle a claim for damages, Borrower fail to respond to Lender within ~0 days after the date such notice is mailed, Lender is authorized to collect and apply the proceeds, at Lender's option, either to restoration or repair of the Property or to the sums secured by this Mortgage. Unless Lender and Borrower otherwise agree in writing, any such application ofproceeds to principal shall not extend or postpone the due date of the monthly installments referred to in paragraphs 1 and 2 hereof or change the amount of su,eh installments. 10. Borrower Not Released. Extension of the time for payment or modification of amortization of the sums secured by this Mortgage granted by Lender to any successor in interest of Borrower shall not operate to release, in any manner, the Iiability of the original Borrower and Borrower' successors in interest. Lender shall not be required to commence proceedings against such successor or refuse to extend time for payment or otherwise modify amortization of the sums secured by this Mortgage by reason of any demand made by the original Borrower and Borrower's successors in interest. 5 In(lia(s 11. F®p°bearaooce by Fonder N®t a i~aiver. Any forbearance by Lender in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by Lender shall not be a waiver of Lender's right to accelerate the maturity of the indebtedness secured by this Mortgage. 12. Rennedtes Cao»nanlative. All remedies provided in this Mortgage are distinct and cumulative to any other right or remedy under this Mortgage or afforded by law or equity, and may be exercised concurrently, independently or successively. 13. 5aaccess®~ aond Assig®s Boland; J®int aflnd ~veral Liability9 Capti®eos. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of Lender and Borrower, subject to the provisions of paragraph 17 hereof. All covenants and agreements of Borrower shall be joint and several. The captions and headings of the paragraphs of this Mortgage are for convenience only and are not to be used to interpret or defne the provisions hereof 14. N®#nce< Except for any notice required under applicable taw to be given in another manner, (a) any notice to Borrower provided for in this Mortgage shall be given by mailing such notice by certified rraail addressed to Harrower at the Property Address or at such other address as Borrower may designate by notice to Lender as provided herein, and (b) any notice to Leader sha11 be given by certified mail, return receipt requested, to Lender's address stated herein or to such other address as Lender may designate by notice to Borrower as provided herein. Any notice provided for in this Mortgage shall be deemed to have been given to Borrower or Lender when given in flee mariner designated herein. 15. IJimfl'orm M®rgg~ge; ~®vernioeg I.saw; ~everatbi-fity. This forth of mortgage combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. This Mortgage shall be governed by the law of the jurisdiction in which the Pro~rty is located. In the event that any provisions or clause of this Mortgage or the Nate conflicts with applicable law, such COliflict shall not affect other provisions of this Mortgage or the Note which can be given effect without the conflicting provision, and to this end the provisions of the Mortgage and the Note are declared to be severable, 16. JE;®rr®wer's dopy. Borrower shall be furnished a conformed copy ofthe Note and ofthis Mortgage at the time of execution or after recordation hereof. 17. 'I'ratasfer ®f time Property, tl~seemaption. If alI or any part of the Property or an interest therein is sold or transferred by Borrower without Lender's prior written consent, Lender Inay, at Lender's option, declare all the sums secured by this Mortgage to be immediately due and payable. Lender shall leave waived such option to accelerate if, prior to the sale or transfer, Lender and the person to whom the Property is to be sold or transferred reach agreement in 6 Initials writing that the credit of such person is satisfactory to Lender and that the interest payable on the sums secured by this Mortgage shah be at such rate as Lender sball request. If Lender has waived the option to accelerate provided an this paragraph 17, and if Borrower's successor in interest has executed a written assumption agreement accepted in writing by Lender, Lender shall release Borrower from all obligations under this Mortgage and the Note. If bender exercises such option to accelerate, Lender shall mail Borrower notice of acceleration in accordance with paragraph 14 hereof Such notice shall provide a period of not less than 30 days from the date the notice is mailed within which Borrower may pay the sums declared due. If Borrower fails to pay such earns prior to the expiration of such period, Lender may, without fiarther notice or demand on Borrower, invoke any remedies permitted by paragraph l8 hereof. N®l~~[JN1i1~63RM ~®'V'lENAN'y'S. Borrower and Lender further covenant and agree as follows: 18. ~ccele~°ati®sa; )EBe~aedies. Upon Borrower's breach of any covenant or agreement of Borrower in this Mortgage, including the covenants to pay when due any sums secured by this Mortgage, Lender prior to acceleration shdil mail notice to Borrower as provided by applicable law specifying: (1) the breach; (2) the action required to cure such breach; (3) a date, not less than 30 days from the date the notice is mailed to Borrower, by which such breach anust he cured; and (4} that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Mortgage, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower ofthe right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the breach is not cured on or before the date specified in the notice, Lender at Lender's option may declare all of the sums secured by this Mortgage tc> be immediately due and payable without further demand and may foreclose this Mortgage by judicial proceeding. Lender shall be entitled to collect in such proceeding all expenses of foreclosure, including, _but not limited to, reasonable attorney's fees, and costs of documentary evidence, abstracts and title reports. 19. B®rr°ower's Itaght to Reinstate. Notwithstanding Lender's acceleration of the sums secured by this Mortgage, Borrower shall have the right to have any proddings begun by Lender to enforce this Mortgage discontinued at any time prior to at least one hour prior to the commencement of bidding at a sheriffs sale or other sale pursuant to this Mortgage if (a) Borrower pay Lender all sums which would be then due under this Mortgage, the Note and notes securing Future Eldvanees, if any, had no acceleration occurred; (b} Borrower cures all breaches of any other covenants or agreements of Borrower contained in this Mortgage; (c) Borrower pay all reasonable expenses incurred by Lender in enforcing the covenants and agreements of Borrower contained in this Mortgage and in enforcing Lender's remedies as provided in paragraph 18 hereof, including, but not limited to, reasonable attorney's fees; and (d) Borrower takes such action as Lender may reasonably require to assure that the lien of this Mortgage, Lender's interest in the Property and Borrower` obligation to pay thesums secured by this Mortgage shall continue unimpaired. Upon such payment and cure by Borrower, this Mortgage 7 Innia[s and the obligations set;ured hereby shall remain in foil force and effect as if no acceleration had occurred. 20. Assignment of Ruts, Appoie~tmenf of Iteceiver9 I,ender° i!a IP®ssessioi>s. As additional security hereunder, Borrower hereby assign to Lender the rents of the Property, provided that Borrower shall, prior to acceleration under paragraph 1 g hereof or abandonment of the Property, have the right to collect and retain such rents as they become due and payable. bTpon acceleration under paragraph 1 S hereof or abandonment of the Property, Lender, in person, by agent or by judicially appointed receiver, shall be entitled to enter upon, take possession of and manage the Property and to collect the rents of the Property including those past due. All rents collected by Lender or the receiver shall be applied first to payment of the costs of management of the Property and collection of rents, including, but not limited to, receiver's fees, premiums on receiver's bonds and reasonable attorney's fees, and then to the sums secured by this Mortgage. Lewder and the receiver shall be liable to account only for those rents actually received. 21. )Futaea°e Advances. Upon request of Borrower, Lender, at Lender's option prior to release of this Mortgage, may make Future Advances to Borrower. such Future Advances, with interest thereon, shall be secured by this Mortgage when evidenced by promissory notes stating thatsaid notes are secured hereby. At no time shall the principal amount of the indebtedness secured by this Mortgage, not including sums advanced in accordance herewith to protect the security of this Mortgage, exceed the original amount of the Note. 22. Release. Upon payment of atl sums secured by this Mortgage, Lender shall discharge this Mortgage, without charge to Borrower. Borrower shall pay a@l costs of recordation, if any. 23. Purclea~se M®ney 1lRortgage. If all or part ofthe suYns secured by this Mortgage are lent to Borrower tQ acquire title to the Property, this Mortgage is hereby declared to be a purchase money mortgage. 24. )I~a~rdoeas S~Isstances. (a) Mortgagors shall not hereafter use, store, generate or discharge, or cause or permit to be used, stored, generated or discharged, any toxic or hazardous waste or materials at the Property, nor allow a lien to be imposed on the Property pursuant to any applicable environmental law. If it shall be determined that any predecessor in title to the Property caused or permitted any such discharge, and action by Mortgagors to clear the Property of such waste or material is not instituted and completed within such periods oftime as may be allowed to Mortgagors by the governmental authorities with jurisdiction over the Property, such failure shall constitute an "Event of Default" under this Mortgage. (b) If Mortgagors receive any notice of (I) the happening of any event involving the use, storage, spill, discharge or cleanup of any hazardous or toxic waste or material or any oil or g Initials pesticide on or about any property of Mortgagors, including without limitation, the Property, or any portion thereof, or caused by Mortgagors {a "Hazardous Discharge"), or (ii) any coFnplaint, order, citation or notice with regard to air emissions, water discharges, noise emissions or any other environmental, health or safety matter affecting Mortgagors, the Property, or any portion thereof, or its or Mortgagors' operations (an "Environmental Complaint") from any person or entity including without limitation, the Department of Environmental Protection of the Commonwealth of Pennsylvania (the "DEP"), the United States .Environmental Protection Agency {the "EPA"), the United States Army Corps of ]Engineers (the "Corps"), or the United States Coast Guard {the "Coast (puard'~, then Mortgagors will immediately give written notice of same to Mortgagee and shall promptly comply with its obligations under law with regard to such Hazardous Discharge or Environmental Complaint. {c) Without Limiting Mortgagee's rights under this Mortgage, Mortgagee shall have the right, but not the obligation, to exercise any of its rights as may be provided for elsewhere in this Mortgage or to enter onto the Property or to take such other actions as it deems necessary or advisable to clean up, remove, resolve, or minimize the impact of or otherwise deal with, any such Hazardous Discharge or Environmental Complaint upon its receipt of any notice from any person or entity, including without limitation, the DEP, the EPA, the Corps, the Coast Guard or Mortgagors, asserting the happening of a Hazazdous Discharge or Environmental Complaint which, if true, could result in any order, suit or other action against Mortgagors and/or the Property; or any portion thereof, by any governmental agency or otherwise which, in the sole opinion of Mortgagee, could jeopardize its security under this Mortgage or any portion thereof; provided, however, that Mortgagors have not immediately commenced and is diligently pursuing either (x) the cure or correction, in form, scope and substance acceptable to Mortgagee and the agency or entity asserting the happening of the Hazardous Discharge or Environmental Complaint, or of the event which constitutes the basis for the Hazardous Discharge or Environmental Complaint, and is continuing diligently to pursue such cure or correction to completion, or (y} proceedings for an injunction, a restraining order or other appropriate emergency relief preventing such agency or entity from asserting such clairry which relief is granted within ten (10) days of the occurrence giving rise to the claim and the injunction, order or emergency relief if not thereafter dissolved or reversed on appeal, and in either of the foregoing events, Mortgagors have posted cash, a bond, letter of credit or other security satisfactory in form, substance and amount to both Mortgagee and the agency or entity asserting the Hazardous Dischazge or Environmental Corr~plaint to secure the proper and complete cure or correction of the event which constitutes the basis for the claim. All costs and expenses, including without limitation, legal fees and expenses, incurred by Mortgagee in the exercise of any such rights shall be payable by Mortgagors upon demand with interest thereon at the Default Rate as defined in the Note, from the date of paytaaent to the date Mortgagee is reimbursed by Mortgagors, and shall be secured by this Mortgage and all other collateral granted to Mortgagee by Mortgagors. (d) In addition to these events previously specified, the occurrence of awry of the following events shall constitute an Event of Default under this Mortgage, entitling Mortgagee to alt of the rights and remedies provided, therefore: 9 Initials (I) Tf Mortgagee receives its first notice of a Hazardous Discharge or Environmental Complaint other than from Mortgagors, and Mortgagee does not receive a required notice (which must be given in written form as required by this Mortgage) of such Hazardous Discharge or Environmental Complaint from Mortgagors within ten {1Q) business days of the date Mortgagee first receives said notice other than from Mortgagors; provided, however, that Mortgagors have in fact received such notice, or (ii) If the DEP, EPA or any other state or federal agency asserts or creates a lien upon any or all of the Property by reason of the occurrence of a Hazardous Discharge or Environmental Complaint or otherwise; or (iii) If the DEP, EPA or any other state or federal agency asserts a claim against the Mortgagors, the Property or Mortgagee for damages or cleanup costs related to a Hazardous Discharge or Environmental Complaint. {e) Mortgagors hereby agree to defend, indemnify, and bold Mortgagee harmless from and against any and all claims, losses, liabilities, damages and expenses (including without limitation, cleanup costs and attorneys` fees and expenses, including those arising by reason of any of the aforesaid or an action against Mortgagors under this indemnity) arising directly or indirectly from, out of, or by reason of any Hazardous Discharge, Environmental Complaint or any environmental, health or safety law governing Mortgagors, its operations or the Property, or any portion thereof: This subparagraph (e) shall survive the foreclosure, expiration or sooner termination of this Mortgage. 25. Co~mQe~at t® Jurasdietl®~. Mortgagors hereby consent to the exclusive jurisdiction of the Court of Common Pleas of Cumberland County Pennsylvania, and/or the United States District Court for the Middle District of Pennsylvania in any and all actions or proceedings arising hereunder or pursuant hereto, and irrevocably agrees to service of process by personal service upon Mortgagors wherever Mortgagors may be then located, or by certified or registered mail, return receipt requested, directed to Mortgagors at their last known address. 26. WAIVER G1F RIG~iT ~'O JURY TAI.. MORTGAGORS HEREBY WAIVE THE iZIGHT TO HAVE ANY CONTROVERSIES OR MATTERS ARISING HEREUNDER OR RELATED TO THE ®BLIGATiONS SECURED HEREBY TRIED BY A JURY. 27. C®veaaaaat ISAaBendng ~vidr fhe Lamed. Any act or agreement to be done or performed by Mortgagors shall be construed as a covenant running with the land and shall be binding upon Mortgagors and its successors, heirs and assigns as if they had personally made such agreement. Yl~t WI'T'NESS WHEN®~, Borrower has executed this Mortgage. WITNESS (ATTEST): ~~~~- ~,~ } AI L. Madeira, COMMOIVWEALTFI OF PENNSYLVANIA COUNTY OF CUMI3ERLAND SS ®n this, the l7th day of December, A.I., ~OOg, before me the undersigned officer, personally appeared Alfred L. Madeira, Sole Member, Manager, Madeira Operations, LLC known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledge that they el~ecuted the same for the purpose therein contained, IN WITNESS WHEREOF, I hereunto set my hand and offacial seal. COb1Ni0NVYEALTH OF PENNSYLVANIA / 1V0 S'rIRiAL SEAL Thomas 3. Alerens, Notary Public NOtary Publi Upper Allen Township, Cuml~iandCoumy M wmmission ex 'res Feb i 5, 21111 I hereby certify that the precise address of the within•named Mortgagee is: Attorney for Mortgagee lI Initials Tax Parcel # 22-10-0644-034 Tax Parcel # 22-11-0278-021 ~~$~ 6699 ALI. ~'~~` CER'I'~SII~1 piece or parcel of land, situate in the Township of Monrae, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: Tl[2AC'T NO.1 BIEGYI~iII~G at a point in Stoner Road; thence by land now or formerly of George R Eppley, North 40 degrees 00 minutes 00 seconds East, one thousand eighty two and eighty five hundredths (1082.85) feet to a pin; thence South 48 degrees 26 minutes 22 seconds East, one thousand three hundred sixty-two and sixty three hundredths (1362.63) feet to a point in Williams Grove Road; thence by said road, South 39 degrees 38 minutes 26 seconds West, one thousand eighty-five and nine hundredths (1085.09) feet to a poinnt in the first above mentioned public road; thence by the same road, North 48 degrees twenty-one minutes sixteen seconds West, one thousand three hundred sixty-nine and fifty hundredths (1369.50} feet to the place of BEGINNING. C®NT'AINING 33.9773 acres B~~TG Lot #1 of the Final Subdivision plan for Frank E. Stoner, Sr. & Dorothy M, h/w prepared by Gerrit J. Betz ~4ssociates, Inc. on May 15, 1986 and recorded in Plan hook 50, at Page 129 in the recorder of Deeds Office in and for Cumberland County. TR~C'I' N®. 2 )l3~~INNING at a point on the Western side of Williams Grove Road at southeast comer of land now or formerly of Terry Stoner, being Lot No. 1 on the Plan of hots of Frank E. Stoner, as recorded in Plan Book 57, at page 53, Cumberland County Recorder of Deed's Office; thence by lot No. 1 South 87 degrees 32 minutes 12 seconds West nine hundred eighty and fifty-one hundredths (980.51) feet to a point; thence South 00 degrees 28 minutes 00 seconds West three hundred thirty-seven and seventy-one hundredths (337.71) feet to a pin; thence South 88 degrees 45 minutes 00 seconds East none hundred eighty-one and twenty eight hundredths (981.28} feet to a point on the western side of Williams Grove Road; thence by the western side of Williams Grove Road north 00 degrees 11 minutes 11 seconds East four hundred one and twenty-five hundredths (401.25) feet to a point the place of BEGINNING. BRING I.ot Nm. Z on the plan of Lots of Frank E. Stoner, as recorded in Plan Book 57, at page 53, Cumberland County Recorder of Deed's office. ~~~P'I'i1~G from the above tract the following parcel. BEGINI~T1<I~IG at a point located on the western right of way line of Williams Grove Road (S.R. 2011 } a 06 foot right-of-way, said point being the southeastern property comer of lands now or formerly of Barry L. Loreman and the northeastern property comer of lands now or formerly of Frank E. & Dorothy M. Stoner; thence from point of beginning along saidright-of--way line South 01 degrees 17 minutes 17 seconds West a distance of 225.70 feet to a point; thence along lands now or formerly of Frank E. & Dorothy M. Stoner the fallowing courses and distances: 1} South 88 degrees 42 minutes 43 seconds West a distance of 15.00 feet to a point; 2.) North Ol degrees 17 minutes 17 seconds West a distance of 225.00 feet to a point; thence along Lands now or formerly of Barry L. Loreman North 86 degrees 02 minutes 04 seconds East a distance of 15.U2 feet to a point, said point being the point of BEGINNII~TG. C~1~11~T~ 0.078 acres. R CERTIFICATE OF SERVICE It is hereby certified that a copy of the foregoing document was this day served upon the following persons in the manner below indicated. FIRST CLASS MAIL Jeffrey B. McCarron, Esquire Swartz Campbell LLC Two Liberty Place 50 South 16~' Street, Floor 28 Philadelphia, PA 19102 Dated: ~U~ZrO! U~ J G. Milakovic rry h' ~i 21~:~~IY~1 +~ (tie r,~ r-il i i v IJ ff~' 1,a 'l; ,r \.7 ~~.. » .. .. . ~ DAVID E. KICKER, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, :PENNSYLVANIA v. THOMAS J. AHRENS and AHRENS LAW :CIVIL ACTION -LAW LAW FIRM, P.C., Defendants NO. 2009-3558 ORDER AND NOW, this /~` day of /ve ~+~~ Zc~f ,upon consideration of Plaintiff s Motion To Compel Defendants To Respond to Discovery and for Other Relief, it is hereby ordered that (1) a rule is issued upon the Defendants to show cause why the Plaintiff is not entitled to the relief requested; (2) the Defendants shall file an answer to the motion within Z o days of this date; (3) the motion shall be decided under Pa.R.C.P. No. 206.7; (4) depositions shall be completed within days of th~~date;~ ! ~ ~. ~ , i ~~ ~i (5) argument shall be held on /7 in Courtroom No. ~ of the Cumberland County Courthouse; and (6) notice of the entry of this Order shall be provided to all parties by the Plaintiff. BY THE COURT: A.~ T~° ~ ';~'~., iU ~~~~i~~..lyi ~`~ ~.~, 7E. .-~-.. ~"~ i ~ ._1 :'.ti ; i ////4~G'Q - ~p~ t ~S /IZ.atI