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HomeMy WebLinkAbout09-4976sJ REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: JpietrzakAReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams(&,ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brand Investors, LP BRANDY INVESTORS, LP, Plaintiff IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA V. CALABRESE & SONS, INC., Defendant CIVIL ACTION NO. Oq - 4q'/(o eA'V1 Te?M CONFESSION OF JUDGMENT IN EJECTMENT CONFESSION OF JUDGMENT IN EJECTMENT Pursuant to the authority contained in the Warrant of Attorney, the original or a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in ejectment in favor of the Plaintiff and against Defendant for possession of the real property described below: The office, warehouse and machine shop facilities located at 406 Brandy Lane, Mechanicsburg, Pennsylvania 17055. Respectfully submitted, REAGER & ADLER, P.C. Date: July 22, 2009 11424Z J H. Pietrzak, Es uire Attorney for Defendant FJLE r-j3;= .. r,F 7 THc TAP 2009 JUL 22 PM 3.' Q 3 CWNTY F'ENI.1S" LV; N A. REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzak(&,ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: TwilliamsAReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors, LP BRANDY INVESTORS, LP, Plaintiff V. CALABRESE & SONS, INC., Defendant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. (? - Wq-76 Di V I L Tet*, : CONFESSION OF JUDGMENT IN EJECTMENT COMPLAINT IN CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY 1. Plaintiff, Brandy Investors, LP (hereinafter "Brandy") is a Pennsylvania limited partnership with a mailing address of c/o RSR Realtors, 3 Lemoyne Drive, Suite 100, Lemoyne, Pennsylvania 17043. 2. Defendant Calabrese & Sons, Inc. (hereinafter "C&S") is a Pennsylvania corporation, with a mailing address of 406 Brandy Lane, Mechanicsburg, Pennsylvania, 17055. 3. This is an action to confess judgment for possession of real property arising out of C&S's default of a commercial lease entered into between Brandy and C&S on June 9, 2006. 4. Judgment is not being entered by confession of judgment against a natural person in connection with a residential lease. The property at issue is a building located at 406 Brandy Lane, Mechanicsburg, Pennsylvania 17055, which houses office, warehouse and machine shop facilities. 6. On June 9, 2006, Brandy and C&S entered into a commercial lease agreement (hereinafter the "Lease") under which Brandy demised and let the building at 406 Brandy Lane, Mechanicsburg, Pennsylvania, 17055, which houses certain office, warehouse and machine shop facilities, to C&S for a period of ten (10) years. 7. C&S has defaulted under the terms of the Lease by failing to pay the rent due and owing for February 2009, in the amount of $24,523.34. The amount in arrears for February 2009 rent, including the 5% late penalty provided for in the Lease of $1,226.17, and I% interest per month through July 20, 2009 of $1,387.37 is $27,136.88, plus $8.06 per day in interest. 8. C&S has further defaulted under the terms of the Lease by failing to pay the rent due and owing for June 2009, in the amount of $24,523.34. The amount in arrears for June 2009 rent, including the 5% late penalty provided for in the Lease of $1,226.17, and 1% interest per month through July 20, 2009 of $406.43 is $26,155.94, plus $8.06 per day in interest. 9. C&S has further defaulted under the terms of the Lease by failing to pay 2008 school taxes in the amount of $33,789.53. Brandy provided notice to C&S to pay the taxes as required by the Lease. When C&S did not take action to pay the taxes in the discount period, and based upon C&S' history of failing to pay taxes as required by the Lease, Brandy mitigated its damages by paying the 2008 school taxes on October 30, 2008. The amount C&S currently owes to Brandy for the 2008 school taxes, including I% interest per month through July 20, 2009 in the amount of $2,925.12 is $36,714.65, plus $11.10 per day in interest. 10. C&S has further defaulted under the terms of the Lease by failing to pay 2009 county & boro taxes in the amount of $13,455.32. Brandy provided notice to C&S to pay the taxes as required by the Lease. When C&S did not take action to pay the taxes in the discount period, and based upon C&S' history of failing to pay taxes as required by the Lease, Brandy mitigated its damages by paying the 2009 county & boro taxes on March 31, 2009. The amount C&S currently owes to Brandy for the 2009 county & boro taxes, including 1% interest per month through July 20, 2009 in the amount of $492.05 is $13,947.37, plus $4.42 per day in interest. 11. C&S has further defaulted under the terms of the Lease by failing to insurance due to Erie Insurance for 2008 in the amount of $4,575.00, as required by the terms of the Lease. Brandy cured this default by paying the insurance premium on August 4, 2008. The amount C&S currently owes to Brandy for the 2008 Erie insurance premium, including I% interest per month through July 20, 2009 in the amount of $533.23 is $5,108.23, plus $1.50 per day in interest. 12. C&S has further defaulted under the terms of the Lease by failing to insurance due to Erie Insurance for 2009 in the amount of $5,274.00, as required by the terms of the Lease. Brandy cured this default by paying the insurance premium on April 27, 2009. The amount C&S currently owes to Brandy for the 2009 Erie insurance premium, including 1 % interest per month through July 20, 2009 in the amount of $140.08 is $5,414.08, plus $1.73 per day in interest. 13. A true and correct copy of the Lease under which Defendants have confessed judgment is attached hereto and incorporated herein, as Exhibit "A". 14. The Lease under which judgment is being confessed has not been assigned. 15. Brandy sent a Notice of Default letter dated July 2, 2009 to C&S by certified mail, return receipt requested and by U.S. Mail. A true and correct copy of the July 2, 2009 Notice of Default letter, along with the signed return receipt is attached hereto as Exhibit "B". 16. C&S has not responded to the Notice of Default letter and the amounts in default listed above remain outstanding. 17. A confession of judgment for monetary damages was previously taken under this Lease for previous defaults by C&S, under Cumberland County Docket No. 07-4722. A confession of judgment in ejectment for possession of the leased property was previously taken under this Lease for previous defaults by C&S, under Cumberland County Docket No. 07-5152. C&S paid the judgment entered under Docket No. 07-4711 and the judgments entered under Docket numbers 07-4722 and 07-5152 were therefore satisfied. None of the defaults included in the confessed judgments entered in docket no. 07-4722 or 07-5152 are included in this Complaint for Confession of Judgment. 18. A confession of judgment for monetary damages was previously taken under this Lease for previous defaults by C&S, under Cumberland County Docket No. 08-2519. A confession of judgment in ejectment for possession of the leased property was previously taken under this Lease for previous defaults by C&S, under Cumberland County Docket No. 08-2522. Brandy withdrew these confessions of judgment on January 29, 2009. None of the defaults included in the confessed judgments entered in docket no. 08-2519 or 08-2522 are included in this Complaint for Confession of Judgment. 19. The terms of the Lease permit Brandy to confess judgment on more than one occasion. 20. A confession of judgment for monetary damages in the amount of $125,924.86 for C&S's current defaults under the Lease has been entered in Cumberland County under docket number , on July 22, 2009. 21. Judgment in ejectment and for possession of the real property at issue is demanded as authorized by the Warrant of Attorney contained in the Lease attached as Exhibit "A". 22. The Warrant appearing in the attached Lease is less than twenty (20) years old. WHEREFORE, Plaintiff, Brandy Investors, LP, demands judgment in ejectment against Defendants, Calabrese & Sons, Inc. and Joseph Calabrese, and for possession of the building located at 406 Brandy Lane, Mechanicsburg, Pennsylvania 17055 as authorized by the Warrant appearing in the attached Lease. Respectfully submitted, REAGER & ADLER, P.C. Date: July 22, 2009 Jo H. Pietrzak, Es#ire orney I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 Attorneys for Plaintiff, Brandy Investors, LP ?? (I ` ". she\df6vsrxbimndylcalabrese.lease June 9, 200@ COMMERCIAL LEASE AGREEMENT THIS LEASE AGREEMENT, made as of the 9th day of June, 2006, by and between BRANDY INVESTORS, L.P., a Pennsylvania limited partnership, with a mailing address of c/o RSR Realtors, 3 Lemoyne Drive, Suite 100, Lemoyne, PA 17043, hereinafter referred to as "Landlord", and CALABRESE &'SONS, INC., a Pennsylvania business corporation, with a mailing address of P.O. Box 1667, Mechanicsburg, PA 17055, hereinafter referred to as "Tenant". WHEREAS, Landlord desires to lease to Tenant the premises comprised of an office and warehouse located at 406 Brandy Lane, Borough of Mechanicsburg, Cumberland County, Pennsylvania (the 'Building"), and the Tenant desires to lease the same upon the terms and conditions and for the good and valuable considerations described in this lease agreement, hereinafter sometimes referred to as the "Lease"; NOW THEREFORE, the parties hereto agree as follows: 1 LEASED PREMISES. Landlord leases, demises and lets to the Tenant, office and warehouse space identified as the Building, and hereinafter sometimes referred to as the "Premises", and Tenant hereby leases from Landlord the entire Premises known as 406 Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania 17055; consisting of an approximate 86;000 square foot Building, together with all easement rights and appurtenances applicable thereto. 2. TERM. The term of this Lease is for a period of ten (10) years, commencing on the 9th day of June, 2006 (the commencement date), being the date of the real estate settlement of the sale of the Premises from Tenant (Seller) to Landlord (Buyer), and ending at midnight on the 30th day of June, 2016. Landlord and Tenant acknowledge that Tenant is currently in possession of and occupies the Premises as of the commencement date. Provided this Lease is not in default, Tenant is granted an option to renew this Lease as follows: (1) at the option of Tenant, the term of the Lease may be extended for two (2) renewal periods of five (5) years each by written notice to the Landlord at least 180 days prior to the expiration of the term or any renewal term thereof, as the case may be; (2) upon any valid exercise of any such option to renew, terms of the Lease shall remain in full force and effect except that the minimum annual rent for each renewal period shall be adjusted as set forth in Paragraph 3 below. 3. RENTAL. Tenant shall pay to Landlord a total rent of $280,100.00 during the first (1St) year. term of the Lease, payable in monthly installments of $23,341.67. In addition, Tenant shall pay such= Additional Rent, as set forth herein. The monthly rental shall be payable in advance obi the first day of each month beginning as of the commencement date set forth in Paragraph 2 above, at such address designated by Landlord in Paragraph shcldlbl srlbrandylcalabrese.lease June,9,2Go6 i 20 (entitled Notices) herein below, or such other places as the Landlord may. designate, subject to the following: at the time of settlement on the sale of the real estatefro n Tenant (Seiler) to Landlord (Buyer), Tenant will provide Landlord with a credit from (3) months base rent in the amount of $70,025.00 to be. held by Landlord in escrro of three for the month of June '2006 will be prorated at settlement. Re w• Rent gul Tenant, shall thereafter commence in advance on the first dam rental payments by The rent as set forth above shall remain constant for the first 1 of the following month. Thereafter, on an annual basis rent shall increase by two and I). Year to Cent ( term. above the prior lease year's rent as follows: P (2.5%) Lease _Year Year L Annual Monthly Rent Y Year 2: $280,100.Q0 $287 102 50 $23,341.67 Year 3:; , . $294 280 06 $23,925.21 Year 4:; Year 5: , . $301,637.06 $24,523.34 $25,136.42 . Year C $309,177.98 $316 907 42 $25764.83 Year 7:1 , . $324 830 10 $26,408.95 Year 8:: , . $332 950 85 $27,069.18 Year 9:??= , . $341 274 62 $27,745.90 Year 14: , . $349 806 48 $28,439.55 , . $29,150.54 Any rental payment not received by the 5ch of the month shall b The rent for the renewal t e subject to a 5% late fee. erms set forth in Paragraph 2 one-half percent (2.5°jo) above the prior leas ' above shall increase by two and rent, as the case may be. e year s. r ent or prior renewal lease year's e y All amounts (other than Rental, which shall be payable as herein set fort owed by the'Tenant to the Landlord hereunder shall be paid within five (5 days from the date that Landlord; renders statements of account therefore and all amounts (including Rental) not paid when due shall accrue and bear interest at th one percent (1%) per- month (twelve percent (12%) annually) until paid. a rate of is of the essence in Tenant's payment of Rental and Tenant's performance of Time each and every term, covenantand condition of this Lease incumbent an Tenant. 4. "AL ESTATE TAXES, A. Real Estate Taxes. As Additional Rent, Tenant agrees to a all real levied. upon the subject property of .any nature future. estate taxes Payments by Tenant of all real estate taxes shall co ssessments. the rentals hereunder, mm.ence simultaneously with 2 . sAc\dlbirsftrandylglabreseAease June 9, 2006 B. Personal Property Taxes. Tenant. agrees to pay any and all taxes levied upon the personal property, including trade -fixtures and inventory, kept on the premises, as well as all taxes levied against the - land and the building and improvements situated thereo4 or on the rents derived by Landlord therefrom during the term of the Lease afterpresentation to Tenant by Landlord of statements from the taxing jurisdiction in which said property is located. Landlord may,'however, direct the taxing authorities to send the statements directly to the Tenant. Landlord further agrees that Tenant, in the name of Landlord, but at Tenant's sole expense, -nay protest any assessment before any taxing authority or board or maintain any necessary legal action in reference to said assessment or for the recovery of any taxes paid thereon. Nothing herein contained shall require Tenant to pay any income-or excess profit taxes assessed against Landlord or any corporation, capital stock or franchise tax imposed upon Landlord. C. Method of Payment. Landlord shall give written notice advising Tenant of the amount of real estate taxes, together with a copy of the tax bill, and Tenant shall pay such amount to Landlord within the first thirty (30) days of the face amount period.. Landlord and Tenant acknowledge that at the real estate closing Landlord (Buker) will not reimburse Tenant (Seller) for the current year real county/townsh-lp and school real estate taxes that have been paid-by Tenant, and Tenant will be considered paid-until the. next calendar or fiscal year tax billing periodf;- as applicable. If this. Lease shall terminate during a tax year, Tenant shall p4y to Landlord a pro rata portion of the amount that would have been due for the full tax year based on the number of days of said tax year expired on the date of termination. 5. UTILITIES AND SEjR CES. Tenant shall contract in its own name for and promptly pay all charges for electricity, gas, water, sewer, telephone and any other utility used or consumed in the Premises to the concern furnishing the same. Landlord shall not be .liable. in any way to Tenant for any failure or defect in or of any utility service furnished to the Premises by reason of any requirement, act or omission of the public utility company serving the Premises with electricity, water or other utility service, or because of necessary repairs or improvements. Tenant's use of electric energy in the Premises shall not at. any time exceed the capacity of any of the electrical conductors and equipment in or otherwise serving the Premises. To insure that such capacity is not exceeded and to avert possible adverse effect upon the Building electric service, Tenant shall nPt, without Landlord's prior written consent in each instance (which shall not be unreasonably withheld) connect any additional fixtures, appliances or equipment (other thafi lamps, typewriters and similar small office machines) to the Building electric distribution systems or make any alteration or addition to the electric system of the Premises existing on the commencement date of this Lease. 3 slicldlbGsribrandylcalabrese.lease June 9, 2006 6. MAINTENANCE OF LEASED PREMISES. A. Maintenance by Tenant. Tenant shall, at its sole cost, keep and maintain the interior Leased Premises [together with exterior (i) windows, including sashes, (ii) heating, ventilating and air . conditioning' equipment and sewer and other lines serving the Leas ed Premises], including without limitation, the partitions, ceiling, interior portions of exterior walls, floor covering therein, and the fixtures, equipment, machinery, appliances and utility lines therein and appurtenances thereof [such as, but not limited to, lighting fixtures and lenses and such fixtures, equipment, machinery controls, appliances and utility. lines and appurtenances thereof, as are used for, in connection with or which are a part of the electrical, plumbing, heating, air conditioning, ventilating„ or any other mechanical systems in or serving tl%e Leased Premises], in conformity with Landlord's hazard insurer, neat and clean tinnd in good order, condition, maintenance and repair. Tenant shall also at its cost 'procure and maintain in the Leased premises all safety appliances required by Landlord's hazard insurer to be maintained therein. Tenant .shall be responsible for:' the cost of replacement of any and all plate; window and other glass (structure- or otherwise) in, on or about the Leased Premises, which may be broken or destroyed. Before undertaking repairs to the Leased Premises (other than minor interior non-structural repairs), Tenant shall first obtain Landlord's approval of the plans and specifications therefore, which approval is not to be unreasonably withheld. Tenant shall contract with a heating•and air conditioning contractor, approved by Landlord, who shall provide a complete service and maintenance contract to Tenant at least annually, the inspection of the HVAC equipment serving the Leased Premises, including a written report of the condition there of to be provided to Landlord and Tenant, the periodic oiling of the equipment where required, the tightening of belts, the filling of pitch pans and the sealing of :water leaks, among other things. The 'service and maintenance contract and its related costs shall- be the sole cost and expense of the Tenant. The existence of a service contract with a Landlord approved vendor shall not relieve Tenant of its ' obligations to maintain and repair such equipment as -above provided. r, B. Roof Repair and Replacement. The current condition of the roof requires repair the cost of which has been provided for through the escrow of funds by' Tenant (Seller) at the -kime of closing on the sale of the real estate to Landlord (Buyer). Landlord shall 'make such required repairs and use said escrow funds. In addition, to the extent that the existing roof requires replacement during the term of this lease, or any renewal terms, Landlord's cost of the roof replacement shall be amortized over the remaining lease term, including any renewal terms, and Tenant's rent shall be increase by said amount. Landlord shall give Tenant thirty (30) days advance notice of any increase in rent. 4 . 1 . 1 Oc\diblrsbrandy\calabrese.lease June 9, 2006 C. 'Maintenance by Landlord. Subject.to the obligations of .Tenant under the provisions of B above, the foundations, " roof (excluding interior ceilings) and except. as specifically provided in B above, and'exterior portions of the exterior walls of the Ldased Premises shall be maintained by Landlord at its expense'in good order, condition, maintenance and repair.. Landlord shall not be deemed to have breached its obligation to make the repairs.required of Landlord as set forth in this Section; or to be liable for any damages resulting therefrom, unless Landlord fails} to make the same within 'a reasonable period (taking into consideration the type of repair involved) after receiving notice from Tenant of the need therefor. 7. SECURITY. The three (3) month base rent balance in the. amount of $70,025.00 set forth in Paragraph 3 above shall serve as Landlord's deposit the receipt of which is hereby acknowledged as security for the full and faithful performance by Tenant of each and every term, covenant, and condition of this Lease. In the event.that Tenant defaults in any of the terms, provisions, covenants, and conditions of this Lease, including but not limited to payment of :any rental or additional rental, Landlord may use, apply, or retain the whole or any part' of the security so deposited for the payment of any such sum in default, or for any other sum which Landlord may expend or be required to expend by reason of Tenant's dekult, including any damages or deficiencies in the reletting of the premises, whether sich damage or deficiency may occur before or after some . repossession proceeding or other reentry by Landlord. In the even that Tenant shall fully and faithfully comply ,with all the terms and conditions of this Lease, the security or any balance thereof, shall 1 e returned to Tenant after expiration of the lease term. The Tenant shall not be entitled to any interest on the aforesaid security. If the Landlord utilizes any of the security deposit" in curing a default on the part of Tenant, Tenant shall immediately pay Landlord the amount necessary to restore the security deposit to its original amount. 3. PERMITTED USES BY TENANT. Tenant represents, covenants and warrants that the Premises will be used lawfully for the following purposes: A machine shop operation 9. OTHER IMPOSITIONS. Ia addition to the Rental provided hereunder, Tenant agrees to 'pay each and all licenses and permit fees and all taxes and increase in taxes levied and assessed by any governmental body by virtue of any special leasehold improvements or by virtue of Tenant conducting its described use, business or operation on the Premises, the employment of agents, servants, or other third parties, the bringing, keeping or selling . of personal property or chattels of whatsoever nature from the Premises. The foregoing is intended to bind Tenaait' to pay, and promptly discharge, all taxes and/or levies, together with related interest aid penalties, whether assessed by Federal . or State authority or any political subdivision thereof, directly -or indirectly related to its business, improvements, functioning, employment, assets, existence, sales entertainment or the like. Tenant specifically agrees to reimburse Landlord for any increase in ad valorem taxes resulting 5 r oc\dlb?rsrtbrandylcalabrese.lease ! June 9, 2006 S from use of fixtures or improvements by Tenant which Landlord becomes obligated to pay. 10. ASSIGNMENT AND SUBLEASE. Tenant shall not make or permit any assignment (by operation of law or otherwise) of this Lease without the prior express written consent of Landlord.. Tenant shall snake no sublease or mortgage of this Lease, in whole or- in part, without the prior- express written. consent of Landlord. - Tenant shall not permit the use or occupancy of the Premises, or any portion thereof, by anyone other than Tenant and shall not make any transfer of any nature whatsoever of its- right. under this Lease or of Tenant's interests set forth in this Lease without. the prior written consent of Landlord first had and obtained,- Any such assignment or any such subletting, whether approve by Landlord or not, shallnot relieve the Tenant of any liability for the total .agreed rentals due hereunder nor frod!i Tenant's obligation to perform all the covenants herein contained. Any written consent which may in any specific instance or circumstance be given by Landlord shall not imply or be deemed to be consent in any other instance or circumstance. 11. SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE. The parties acknowledge and agree that this Lease Agreement is under, subject, and subordinate to any and all mortgages and security interests that presently encumber the property or that in the future may encumber the property of which the leased premises is a part without' the necessity of any further instrument or act on the part of the Tenant to effectuate such subordination. Tenant agrees, at the election of Landlord, to attorn to any holder of any mortgage to which this lease is subordinate. Tenant shall execute and deliver upon demand such further instrument or instruments confirming such subordination of this Lease to all underlying leases and to the lien of any such mortgage and/or other encumbrance as shall be desired by any such mortgage or proposed mortgage or by any other person. Tenant ? ereby appoints Landlord the attorney-in-fact of Tenant irrevocably to execute and deliver` any such instrument or instruments for and in the name of Tenant. i, If Landlord shall mortgage the real property of which the leased premises is a part, Landlord shall obtain from the lienholder a Non-Disturbance Agreement for the benefit of Tenant. Any Non-Dis?turbance Agreement is subject to the requirement that Tenant shall not have been.in'default under the terns, covenants and conditions of this lease or any time during the lease t6rm. 12. COMPLIANCE WITH LAWS AND INDEMNIFICATION. Tenant agrees to strictly comply with all pertinent laws, ordinances, statutes and regulations whatsoever, of any governmental body or subdivision, incident to its occupancy of the Premises and its use thereof. Tenant further covenants and agrees to indemnify and hold Landlord harmless from any loss, cost or expense whatsoever, directly or indirectly resulting or occasioned to, or imposed upon, Landlord (1) by injury to or destruction of life or property resulting from the use and occ?uparicy by Tenant (including, but not limited to any such injury or destruction caused, in whole or in part, by its agents, servants, employees, independent 6 r shc\dlbErsr\brandylcalabrese.lease June 9, 2006 contractors, invitees A licensees), or (2) by damage to or destruction of the Building structure, or any part thereof, or of any abutting real property caused by or attributable to the negligent act or a6ts or omission or omissions to act of Tenant (including but .not limited to, any such damage or destruction caused, in whole or in part, by its agents, servants, employees, c6ntractors, invitees, or licensees) or caused by or attributable to the Tenant's failure to perform its obligations under this lease. As used in this Paragraph 12. the term "Landlord" shall be deemed to include any agent, employee or ,servant of Landlord. 13. QUIET ENJOYMENT UNTENANTABILITY. Landlord hereby warrants that Tenant upon payment of the rent and performing the provisions of this Lease on its part. to be paid and performed shall have.peaceful and quiet possession of the Premises against all parties claiming adversely thereto by or under Landlord. If, during the term of this Lease, the Building or building equipment or Premises be destroyed by fire or any other cause whatsoever, or partially destroyed so as to render the Premises wholly unfit for occupancy, and Landlord shall conclude that they cannot be repaired for occupancy within .120 days from the happening of the loss of damage, then this Lease shall, at Landlord's option,irrinediately terminate in which case Tenant shall surrender the Premises and all interest therein - and Tenant shall pay rent only to the time of such surrender. In case of-total or partial damage or destruction to the Premises, Landlord may re-enter and repossess, the same or any part thereof for the purpose of removing or repairing the loss or d'.rnage and shall proceed with reasonable dispatch to the repair of same unless, under the foregoing clause of this paragraph, the Lease shall have terminated. The rent during the period of such repairs shall be.wholly abated if all of the. Premises have been thus repossessed by Landlord for the purpose of repair for the period that Tenant has been 'thus. dispossessed; and if only a portion of the Premises are thus repossessed, the rent shall,be abated for the period of such dispossession ratably, based on the portion of the Premises thus repossessed. Should the Building or Premises be destroyed or damaged by fire or other cause, due to the fault or neglect of'Tenant or its agents, servants, employees, independent. contractors, invitees, or licenses, the Landlord may repair such damage without prejudice to any rights of subrogation of Landlord's insurer and there shall be no apportionment or abatement of rent'. 14. SIGNS.. Tenant shall ;not erector install any sign or other type display whatsoever, either upon the exterior of the Building, upon or in any window, or door therein located, or the Premises, without theprior express written consent of Landlord. Any free-standing sign to be situate 'on the Piiemises shall be approved in writing by Landlord and comply with all applicable Township signage requirements. It is the responsibility of the Tenant to investigate all approp>?iate governmental authorities governing sign size and location and to optain approval.. ; 7 sjcldlbVsrlbrandylcalabrese.tease June 9, 2006 15. TENANT'S CARE OF PREMISES.. Tenant shall not make. alterations in, or additions or improvements to the Premises without the prior express written consent of Landlord. Landlord's refusal to. grant such consent shall be inclusive. In addition: A. Tenant shall commit no waste with respect to the Premises and shall take good care of and keep in good repair the Premises and fixtures .therein and, at the expiration or earlier termination or cancellation of this Lease, shall surrender the Premises and fixtures therein in the same condition as when initially received by Tenant, subject only to reasonable wear•and tear resulting from normal use, and shall surrender?ll keys for the Premises to Landlord at the place then fixed for the payment of rent and shall remove all Tenant's property before surrendering the Premises. All ?Injuries to the Building or fixtures caused by moving the property of Tenant in os out of the Premises, and any and all breakage or other injury whatsoever done by Tenant, its agents, servants, employees, independent contractors, licenses, invitees, or visitors, as well as any damage done by'water, . steam, electricity, fire or other substance due to the neglect of the aforesaid parties, may be repaired by Landlord; at the expense of Tenant, and shall become due and payable upon delivery of a statement of such charges by Landlord to Tenant or mailing the same postage prepaid, to Tenant at his last known address. B. All alterations,. additions or improvements upon or affixed to or in the Premises (including, but not limited to carpets, drapes and anything bolted, nailed, plumbed or otherwise secured in a manner customarily deemed to be permanent) shall be deemed to be'. a fixture inuring to the Building, and. shall not be subject to attachment of a mechanic's, materialman's or similar lien, and shall in any event be and become. the property of Landlord and remain upon the Premises and be surrendered at ithe end of this Lease, Business machines and such equipment are excluded from his section. • i. C. Tenant shall ndt use or permit to be brought into the Premises or the Building any flammable or explosive material or other articles deemed hazardous to persons or property. Tenant shall not occupy the Premises in any manner which shall invalidate or lie . in conflict with fire or other insurance policies covering the Building or its' operation or the Premises, or increase the rate of fire or other insurance in the Building or its operation.or the Premises, over that in effect prior to this Lease. If, by any reason of failure of Tenant to comply with provisions of this paragraph, any insurance premium shall be at the beginning of this Lease or any time thereafter be higher than it otherwise would be, the Tenant shall reimburse the Landlord as additional.rent hereunder for that part of all insurance premiums thereafter paid by Landlord, which shall have been charged because of such failure by Tenant and shall make such reimbursement upon the first day of the month following such payment by Landlord.. • . Shc\d1blisr\brandy\ca1abrese. lease June 9; 2006 v 3 ' D. Tenant shall not permit any obnoxious odors, chemicals or other substances to be produced, manufactured or stored in the demised premises. A breach of the provision shall ?e deemed a material breach of this Lease entitling the Landlord to exercise. any remedies available to it hereunder or at law. t ' 16. WAIVER OF CLAIMS. To the extent permitted by. law, the Landlord shall not be liable for and the Tenant releases the Landlord and Landlord's agents, contractors and servants from, and waives all claims for damage to person-or property sustained by the Tenant or any occupant of the Building or Premises resulting from the use and condition of the Premises or any: part or any equipment or appurtenance becoming out of repair, or resulting from any accident in or about the Premises, or resulting directly or indirectly from any act or neglect of any tenant or occupant of the Premises or of any other person, including Landlord, its, agents or employees. This section shall apply especially, but not exclusively, to the flooding of basement or other subsurface areas, and to damage caused by refrigerators, sprinkling devices, air-conditioning apparatus, water, snow, frost, steam, excessive heat or cold, falling plaster, broken glass, sewage, gas, odors or noise, or the bursting or leaking ofpipes or plumbing fixtures, and shall apply equally whether any such damage results from the act or neglect of the Landlord or of any other persons, and whether such damage be caused or result from any thing or circumstance above mentioned or referredo, or any other thing or circumstance whether of a like nature or of a wholly different nature. - If any such damage, whether to the Premises or the Building, result from any act or :neglect of the Tenant, the Landlord may, at the Landlord's option,, repair such damage and the Tenant shall, upon demand by the Landlord, reimburse the Landlord forthwith for." the total cost of such repairs. Tenant covenants to indemnify and save Landlord harmless against and from any and. all loss, cost, damage, claim, liability or expense including, but.not limited to, reasonable attorney's fees, arising out of or resulting from any injury or claim of injury of any nature of sort whatsoever to any person or property suffered or received in or about the Premises at any time during the term hereof, or arising out of any failure of Tenant in any respect to.- comply with any of the requirements or provisions of this Lease. Tenant hereby releases Landlord and Landlord's officers, agents, employees and servants, from any and all claims or demands for damages, loss, expense or injury to the Premises, or to the furnishings and fixtures. and equipment, or inventory or other property of Tenant in, about or upon the Premises, as the case may be, which njay be caused by or result from perils, events or. happenings which are the subject of insu4ance carried by the Tenant and in force at the time of any such loss. All property of any bind belonging to the Tenant or any other person that is in the Building or the Premises shall be there at the sole risk of the Tenant or other person only, and the Landlord shall not be liable for damage thereto or theft or misappropriation thereof. Landlord or its agents, servants or employees, shall not be liable for any, injury, loss or damage to any persons or property on or about the premises from any other cause of whatsoever nature unless the same is directly caused by gross negligence of the Landlord and there is no fault or negligence of the Tenant, and Tenant shall save Landlord. harmless and indemnified against such injury, loss or damage, or liability or claim thereof arising from any act, omission or negligence of Tenant. 9 sh?l\dlbUsrlbrandylcalabrese.tease () '} June 9, 2006 17. TENANT'S INSURANCE. Tenant shall, during the entire term hereof, at its sole cost and expense, obtain, maintain and keep in full force and effect the following policies of insurance: A. All risk insur4'e including fire insurance (with extended coverage and vandalism and malicious r?.ischief coverage), water damage, sprinkler leakage and .plate glass insurance, on tAe standard forms, insuring all of Tenant's property in the Premises, and all betterments, additions, repairs, improvements and alterations made to the Premises by Tepant, and all plate glass windows., plate glass doors and other plate glass in the Prey uses, in an amount equal- to 100% of the replacement cost thereof. r B. A combination';•of comprehensive general liability insurance and excess (umbrella) coverage to include personal injury, bodily injury, broad-form property damage, operation's hazard, independent contractor's coverage, blanket contractual liability (including insuring contractual liability under the indemnifications of Landlord by Tenant set forth in this Lease), premises operations liability and in limits approved by Landlord in:writing which approval shall not be unreasonably withheld. Said policies shall name Landlord as an additional insured. C. Worker's compensation and employer's liability insurance in a form and amount required by law. D. Any, other forrix or forms of insurance standard to the industry as Landlord may reasonably regtiiire from time to time in form, in amounts and for insurance risks against which i.prudent Tenant would protect itself. All policies shrill.be taken out with insurers that are reasonably acceptable to the Landlord and which are. licensed to do business, in the Commonwealth of Pennsylvania and certificates showing that such coverages to be in effect shall be furnished to Landlord upon request. In addition to Tenant, all policies shall also name Landlord'and any other person, firm or corporation designated by Landlord and in privity: with it, as an additional insured. Each insurer shall agree, by endorsement upon the certificate issued by it or by independent instrument issued to Landlord, that it will give .Landlord thirty (30) days' written notice before the policy in question shall be altered- or canceled. Tenant shall be entitled to provide the insurance coverage required hereby through the use of blanket insurance policies covering the Premises. Tenant agrees that certificates of insurance shall be delivered to Landlord as soon as practicable 'after the placing of the required insurance and that renewal certificate shall be delivered not less than ten (10) days prior to the expiration of such policies. E. Insurance on Buildings and Improvements. As additional rent, in each calendar year during the term, Tenant shall pay to Landlord, Landlord's total cost of 10 st;bldlb\ sAbrandy\calabrese.lease g . June 9, 2006 i insuring the Premises and improvements thereon,. including public liability, (including "umbrella coverage' % workmen's compensation and hazard insurance (including rental value insurance, fire and extended coverage [with vandalism and malicious mischief endorsement]; boiler and machinery, and all-risk policies). Tenant's insurance payment shall be paid in monthly installments on the first day of each calendar month during the term in advance, in an amount reasonably estimated by Landlord. Within 90 days after the end of each calendar year during the term, Landlord shall furnish Tenant with a statement summarizing the actual insurance cost for such calendar year. F. Business Liability Insurance. Tenant shall keep in force with insurers that are reasonably acceptable to the Landlord and which are licensed to do business-in the Commonwealt4 of Pennsylvania, a policy to cover business liability, including premises operations liability and business interruption liability, in which the limits of coverage shall not be less than $1,000;000.00, single limit. In addition to Tenant, the policy shall name Landlord as an additional insured. Tenant shall continually provide. Landlord with a certificate of such insurance, which shall provide that the insurer will give the Landlord at least 30 days' written notice prior to any cancellation of, lapse or material change in the insurance. G. Indemnificatiori. Tenant will, subject to the provisions of paragraph H below, indemnify, save harmless and defend Landlord and, its officers, agents and servants, from and against any and all claims, actions, liability and expense in connection with loss of life, bodily injury and/or damage to property arising from or out of any occurrence in, upon or at the Premises, or the occupancy or use by Tenant, its agents, employees, servants, subtenants, licensees or concessionaires, of the Premises or.any part thereof, or outside the Premises which is occasioned wholly or in part by any willful or negligent act or omission of Tenant, its agents, employees, servants, subtenants,'licensees or concessionaires, unless the same be caused by the willful or negligent act or omission of Landlord, its agents, employees or servants. H. Waiver of Sub-?o ag tion. Anything in this Lease to the contrary notwithstanding, it is agreed that,each'party (the "Releasing Party") hereby releases the other (the "Released Party") from any liability which the Released Party would, but for this paragraph H, have had to the Releasing Party during the term of this Lease, resulting from`the occurrence of any accident or occurrence or casualty (i) which is or would be covered by an "all-risk" policy (irrespective of whether.such coverage is being carried by the Releasing Party), or (ii) covered by any other casualty or property damage insurance being carried by the Releasing Party at the time of such occurrence, which accident, occurrence or casualty may have resulted in whole or in part from any act or neglect of the Released Party, its officers, agents or employees; PROVIDED, HOWEVER, the release hereinabove set forth 11 stint\rsrlbrandy\calabrese.lease June 9, 2006 shall become inoperative and null and void if the Releasing. Party wishes to place the appropriate;insurance with an insurance company which (a) takes the position that the existence of such release vitiates or would adversely affect any policy so insuring the Releasing Party in a substantial manner and notice thereof is givers to the Released Party, or (b) requires the payment of a higher premium by reason of the existence o such release, unless in the latter case the Released Party within 10 days after notice thereof from the Releasing Party pays such increase in premium. :s 18. EMINENT. DOt12AI1?: If the whole of the Premises shall be taken or condemned, or purchased in lieu thereof, by any government authority for any public or quasi-public use or•purpose, then, in that event, the term of this Lease shall cease and terminate from the time when the possession shall be required for such. use or purpose.' The rent shall in such case be apportioned to the date of'such taking or purchase, as the case may be. In the event of a partial taking only of the Premises, the Landlord shall so notify the Tenant in writing and the Tenant shall have the option to cancel this Lease, giving the Landlord written notice within twenty (20) days after receipt of such notice from the Landlord; provided the balance of the Premises remaining cannot be suitably used by the Tenant for its purposes heretofore stated. If the Tenant is entitled to exercise said option to cancel and does so, then such canceling shall be effective and the rent shall in such case be apportioned to the date of such taking or purchase, as the case may be. In the event the Tenant is not entitled io cancel the Lease or, if it is entitled to do so; it does not exercise its option, said Tenant,vill be responsible for the rent as heretofore set forth, apportioned to the date of such taking or purchase; i.e. after the taking, or purchase in lieu thereof, the rent herein reserved :hall be reduced and the Tenant shall be' required to pay that proportion of rent herein reserved • as the net rentable square feet contained in the remaining leased space bears to the net rentable square feet :contained in the leased space before such taking or purchase. The Landlord and theTenant hereby agree that any award of proceeds resulting from a condemnation or salein lieu thereof of the whole or part of the Premises shall belong solely to the Landlord and the Tenant hereby waives any right to make any claim therefore as the result of this Lease. 19. ACCESS TO PREMISES Landlord or Landlord's agents shall have the right to enter the Premises at all reasonable times to examine the same and to show them *to prospective purchasers, mortgagees, lessees or tenants of the Landlord, or to public officials lawfully having an interest therein, or to make such repairs, alterations; improvements or additions as the Landlord may deem necessary or desirable. Landlord shall not be liable to Tenant for any inconvenience, interferences, annoyance, loss or damage resulting from work done in or upon the: Premises or any portion of the Building or adjacent grounds. Landlord will make,,, attempts to provide 24 hour advance notice of any entry, emergencies excepted-"u; i• Y. s 12 x st,cldlblrsribrandyAcalabrese.lease r) ?? June 9, 2006' 20. NO'T'ICES. Any notice which the Landlord may desire or be required to give the Tenant shall be deemed sufficiently given or. rendered, if in writing, delivered to the Tenant by certified or registered mail, return receipt requested, addressed to the Tenant, at the address first above written or at.the Premises, as appropriate, and any notice which Tenant may desire or be required to give the Landlord shall be deemed sufficiently given or rendered, if in writing, delivered to'Landlord by certified or registered mail. return receipt requested, addressed to its business office at: c/o RSR Realtors, 3 Lemoyne Drive, Suite 100, Lemoyne, PA 17043, or such other places as Tenant or Landlord may from time to time designate in writing. Any notice given hereunder shall be deemed delivered when the return receipt is signed or refusal to accept the notice is noted thereon. 21. TENANT'S DEFAULT. If the Annual Minimum Rent, additional rent, or any other charge payable by Tdhant under this Lease shall be unpaid on the date payment is required by the terms 1'ereof and shall remain so for a period of 5 days, or if Tenant fails to perform any of the Other terms, conditions, covenants and obligations of this Lease to be observed and performed by Tenant for more-than 15 days after Landlord gives Tenant notice of such default ?it being agreed that a default, other than the failure to pay money, which is of such a character that rectification thereof reasonably requires longer than said 15 day period and coripletes the same with due diligence), or if Tenant shall vacate or abandon the Leased Premises or suffer this Lease to be taken under any writ of execution, attachment or other process of law, or if this Lease shall by operation of law devolve upon or pass to any other party, or if an "Act.of Bankruptcy" (as defined in Section 18.02) shall occur, or if Landlord shall have notified Tenant of Tenant's default three (3) or more times in any twelve calendar month.period, then, in any of such events, Landlord shall have, besides its other rights or remedies, the following immediate rights: A. At its option, to terminate this Lease and the term hereby created without any right on the part of Tenant to waive the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken, whereupon Landlord shall be entitled to recover, in addition to any and all sums and damages for violation 0 Tenant's obligations hereunder in existence at the time of such termination, damages for Tenant's. default in an amount equal to the amount of the rent reserved for the balance of the term of this Lease, as well as all other charges, payments, costs and expenses herein agreed to be paid by Tenant, all of which amount shall be immediately due and payable from Tenant to Landlord. B. . At its option, by notice to Tenant, to re-enter and take possession. of the Leased Premises with-6ut terminating this Lease. No re-entry or taking possession of the. Leased Premises by Landlord pursuant to this clause B. shall be construed as an election on its part to terminate this Lease unless a notice of such intention is given to Tenant (all other demands and notices of forfeiture or other similar notices being hereby expressly waived by Tenant). 13 sh8dlb\rsrlbrandy\calabrese.lease June 9, 2006 C. At its option, to require that upon (i) any termination of this Lease, whether by lapse of time of by the exercise of any option by Landlord to terminate the same or in any other `manner whatsoever, or (ii) any termination of Tenant's right to possession without termination of this Lease, Tenant shall immediately surrender possession of the Leased Premises to Landlord and immediately vacate the same, and remove all effects therefrom, except such as may not be removed under other provisions of this Lease. D. At its option, ?o make such alterations and repairs as Landlord shall determine may be reasonably necessary to relet the Leased Premises, and to relet the same or any part thereof for such term or terms (which may be -for a term extending beyond the term of this Lease) and upon such terms and conditions as Landlord in its sole discretion may deem advisable. Upon each reletting, all rentals received by Landlord from such reletting shall be applied as follows: first, to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant to Landlord; second to the payment of any reasonable costs and expenses of such reletting, including brokerage fees and attorneys' fees and costs of such alterations and repairs, each of which fees and costs shall be reasonable in amount; and third, to the payment of rent and other charges due and unpaid hereunder. In no event shall Tenant be entitled to receive any surplus of any sums received. by Landlord on a reletting in excess of the rental and other charges payable hereunder. If such rentals and other charges received from such reletting during any month are less than those to be paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord (notwithstanding the fact that Landlord may have received rental in excess of the rental and other charges payable hereunder in previous or subsequent months), such deficiency'to be calculated :,and payable monthly. Notwithstanding any reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach in the manner provided in this Section. E. CONFESSION OF JUDGMENT: If Tenant shall default in the payment of the rent herein reserved or in the payment of any other sums due hereunder. by Tenant, Tenant hereby authorizes and empowers any Prothonotary or attorney of any court of record.to appear for Tenant in any and all actions which may be brought for said rent and/or said other sums; and/or to sign for Tenant an agreement for entering in any competent court an amicable action or actions for the recovery of said rental and/or other sums; and in said suits or ui said amicable action or actions to confess judgment against Tenant for all.or any part of said rental and/or said other sums, including but not limned to the amounts due from Tenant to Landlord under subparagraphs A, B, C and/or D of this paragraph; and for interest and costs, together with any attorneys' commission for collection of ten percent (10%). Such,' authority shall not be exhausted by one exercise thereof, but judgment mad be confessed as aforesaid from time to time as often as any of 14 shib\dlblrsAbrandylcalabrese.lease } June 9, 2006 said rental and/or other sums shall fall due or- be in arrears, and such powers may be exercised as well after the expiration of the initial term of this Lease and/or during any extended or.renewal term of this Lease and/or after the expiration of any extended or renewal term of JhIR Le asp 1 (Tenant) F. When this Lease and the term of any extension or renewal thereof shall-have been terminated on account of any default by Tenant hereunder, and also when the termhereby created or any extension or renewal thereof shall have expired, it shall be lawful for any attorney of any court of record to appear as attorney. four Tenant as well as for all persons claiming by, through or under Tenants and to sign an agreement for entering in any competent court an amicable action in ejectment against Tenant and all persons claiming by, through or under Tenant and therein confess judgment for the recovery by Landlord of possession of the Premises, for which this Lease shall be his sufficient warrant; thereupon, if Landlord so desires; an appropriate writ of possession may issue forthwith, without any -prior writ or proceeding whatsoever, and provided that if for any reason after. such action shall have been commenced it shall be determined that possession of the Premises remain in or be restored to Tenant, Landlord shall have the right for the same default :and upon any subsequent default. or defaults, or upon the termination of this Lease or. Tenant's right of possession as.hereinbefore set forth, to bring one or more further amicable action or actions as hereinbefore set forth to recover possession of the Premises and confess judgment for, the recovery of possession of the emise as hereinbefore provided. (Tenant) it G. In any amicable action of ejectment and/or for rent and/or other sums brought heretn, Landlord shall first cause to be filed in such action an affidavit made by Landlord or someone acting for Landlord, setting forth the facts necess4 to authorize the entry of judgment, of which facts such affidavit shalf:'be prima facie evidence, and if a true copy of this Lease (and of the truth ok the copy such affidavit shall-be. sufficient evidence) shall be filed in such suit, action or actions, it shall not be necessary to file the original as a warrant of attorney, any rule or Court, custom or practice to the contrary notwithstanding. (Tenant) H. At its option, to collect from Tenant any other loss or damage which Landlord may sustain by reason of any breach and any diminished value of the Leased Premises resulting from said breach. 15 L. shE\d16\rsrtrandy\calabrese.lease June 9, 2006 I. Landlord's Right to Cure Defaults: If Tenant fails to perform any agreement or obligation on ids part to be performed under this Lease, Landlord shall have the right (i) if no emergency exists, to perform the same after giving 15 days' notice. to Tenant; and- (ii) in any emergency situation, to perform the same immediately without notice; or delay. For the purpose of rectifying Tenant's defaults as aforesaid, Landlord shall have the right to enter the Leased Premises.. Tenant shall, on demdnd, reimburse Landlord- for the costs and expenses incurred by Landlord in rectifying Tenant's defaults as aforesaid, including reasonable attorneys' fees'. Landlord shall not be liable or in any way responsible for any loss, inconvenience, annoyance, or damage resulting to Tenant or anyone holding under Tenant for any action taken by Landlord pursuant to this Section. Tenant hereby waives and releases all errors and defects which may intervene in the Landlord's . exercise : of any of its remedies hereunder, including the summary remedies; Tenant further waives the right of inquisition on any real estate levied on and Tenant voluntarily consents to an immediate execution upon any judgment obtained by Landlord; Tenant also waives and releases all relief from any and all appraisement, stay or exemption law of any state now in force or hereafter enacted; Tenant waives any notice to quit required by any lawn-9w in force f he fter; enacted. (Tenant) h, is Nothing in this Section shall be deemed to'limit Landlord's rights and remedies in the event of a default byJenant, and the Landlord's rights and remedies set forth in this Lease shall be in addition to those available to Landlord at law or in equity. 22. BANKRUPTCY. If at any time prior to or after the commencement of the term of this Lease there shall be filed by Tenant or Guarantor, in any court pursuant to any statute either of the United States or of any State,.a petition in bankruptcy (including, without limitation, a petition for liquidation, reorganization or for. adjustment of debts of an .individual with regular income), or if any case, proceeding. or other action shall be commenced seeking to have an order for relief entered against Tenant or Guarantor as a debtor in bankruptcy proceedings or to adjudicate Tenant or Guarantor a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it - or its debts under any law. relating to bankruptcy,, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and such case, proceeding or other action results in the entry of an order for relief or is not dismissed within 50 days of the filing thereof, or if Tenant or Guarantor becomes insolvent or is generally not paying or admits in. writing its inability to pay its debts as they mature, or makes' an assignment for the benefit of creditors or petitions for or enters into an arrangement. with its creditors or a custodian is appointed or takes possession of Tenant's or Guarantor's property (whether or not a judicial proceeding is instituted in 16 s4dc dib\rsrlbrandylcalabrese.lease June 9, 2006 connection with such arrangement or in connection with the appointment. of such custodian), or if Tenant or Guarantor shall take any action to authorize or in contemplation of any of the events set forth above (each of the foregoing events to be hereinafter referred to-as an "Act of Bankruptcy"), then, in addition to Landlord's other rights and remedies under this Lease and applicable law, this Lease shall, at Landlord's option (and. if permitted by law), be terminated, in which -event neither Tenant nor Guarantor, nor any person claiming through or under Tenant or Guarantor or by virtue of any statute or of an order of any court, shall be entitled to possession of the Premises, and Landlord, in.addition to the other rights and remedies given by this Lease, or by virtue of any statute or rule of 19w, may retain as liquidated damages. any.rent, Security Deposit or moneys received by _Landlord from Tenant or others in behalf of Tenant. All rent, additional rent and other charges payable by Tenant under this Lease shall constitute rent for the purpose of applying the provisions of Section 502(b)(7) of the Federal Bankruptcy Code. In the event an act of bankruptcy shall occur and this Lease is not terminated pursuant to the provisions of Paragraph A, the parties agree that: A. If there shall be a default in the payment of- Annual Minimum Rent or any additional rent, or a default in the observance or performance of any other provision of this Lease. binding on Tenant, Landlord shall be entitled to immediately discontinue furnishing any utilities and other services it has. been providing to the Premises, until such time as such defaults have been. fully cured, it being agreed that the foregoing action by Landlord shall iri_no way cause or result in any abatement of Annual Minimum Rent or any other charge payable by Tenant during the continuance of the term of this Lease. B. If the Lease is ilssumed by a trustee in bankruptcy, and assigned by the trustee to a third party, the such party shall (a) execute and deliver to Landlord an agreement in recordable form whereby such party confirms that it has assumed and agrees with Landlord to discharge all obligations binding on Tenant- under this Lease, (b) represent and warrant in writing to Landlord that such party has a net worth and operating experience at least comparable to that possessed by Tenant named herein and Guarantor as of the execution of this Lease, (c) deposit with Landlord a Security Deposit and advance rent equal to that initially deposited by Tenant named herein, Nand (d) grant Landlord, to secure the performance of such party's obligations under this Lease, a security interest in such party's merchandise, inventory, personal property, fixtures, furnishings, and all accounts receivable (and in the proceeds of all of the foregoing) with respect to its operations in the Leased Premises, and in connection therewith, such party shall execute such security agreements, financing statements and' other documents (the forms of which are to be designated by Landlord) as are necessary to perfect such lien. 17 } iMWit51rsr\brandy\calabrese.lease June 9, 2006 C Any person or ,ntity to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Section 101, et seg. (the "Bankruptcy Code") shall be deemed without further act or deed to have assumed all of the obligations arising under.tlis Lease on and after the date of such assignment. If this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, any and all monies or other considerations payable or otherwise to be delivered in connection with such assignment shall be paid or 'delivered to Bankrupt, shall be and remain the exclusive property of Bankrupt and shall not constitute property of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Landlord's property under the preceding sentence' not paid or delivered to Landlord shall be held in trust for the benefit of Landlord and be promptly paid or delivered to Landlord. 23. CONDITION OF PREMISES. It is agreed that, by occupying the Premises, Tenant acknowledges that it, has had full opportunity to examine the Building, including Premises, and is fury informed, independently of Landlord, as to the character, construction and structure of the Building and land within the Premises. It is agreed.that by occupying the Prei?ses the Tenant formally accepts the same and acknowledges that Landlord has complied with all requirements imposed. upon it under the terms of this Lease. 24. HAZARDOUS WASTE. A. Tenant hereby.. covenants, represents and warrants that. it shall not generate, transport, handle, store or otherwise encounter in, on or about the Premises, any hazardous waste or substance (for purposes of this Section herein called "hazardous waste") as defined by the applicable federal, state or local environmental; or occupational standards, including but not limited to material defined. as such in, or for purposes of, the Comprehensive Environmental Response, Compensation and. Liability Act of 1980 ("CERCLA"), as amended by the Superfund Hazardous Materials Transportation Act (49 U.S.C. §1802'et seq.), the Resource Conservation and Recovery Act ("RCRA") (42 U.S.C. §1802, et seq.), the Federal Water Pollution Control Act (33 U.S:C. §1251, et se .), the Safe Drinking Water Act (42 U.S:C. §300(f), et sec,.), the Toxic Substance. Control Act (15 U.S.C. §2601, et seg.), the Clean Air Act (42 U.S.C §7401, et sue.), or any other federal, estate or local statute, ordinance, code, rule, regulation, order. or decree regulating, relating to or imposing liability or standards of conduct concerning. arxy hazardous, toxic or dangerous waste, substance, element or material as now or at any time hereafter in effect or amended (for purposes of this Section herein collectively called the. "Laws"). Tenant further covenants, represents anl'warrants that there will be no underground storage tanks in, on, under, within or about the Premises. 18 sf;t\dlbksr\brandy\calabrese.lease June 9, 2006 B. Tenant shall not use, store or permit to.be stored on the Leased Premises any asbestos in any form, urea formaldehyde foam insulation, transformers or other equipment which contains. dielectric fluid or- other fluids containing levels of polychlorinated biphenyls in excess of fifty (50) parts per million: C. Tenant - covenants, represents and. warrants that it will indemnify, and hold Landlord harm ss. from and against any and all liability, actions, claims, losses, damages and.expenses .arising out of, or.in any way relating to, a breach of the representations'r' warranties, covenants and agreements- set forth in this Section, including: (a) 3claims of third parties. (including governmental agencies) for damages, inclu&ng personal injury or property damages, penalties, response costs, injunctive or other relief; (b) costs or removal and restoration, including fees of attorneys and e?'perts, costs of reporting to any governmental agency the existence of hazardous substances, hazardous waste, pollutants and/or contaminants and costs of preparing or causing to be prepared any and all studies; tests, analyses or reports -in connection with any environmental matter; (c) all expenses or obligations, including attorneys' fees, incurred at, before and after any trial or appeal therefrom whether or not taxable as costs; including attorneys' fees, witness fees, deposition costs and other expenses; (d) all other costs, expenses and liabilities arising from Tenant's violation-of the laws or any other-environmental regulation now.* in force or hereafter enacted; and (e) Tenant's disposal of medical waste as set forth in Paragraph A above. The obligations of Tenant as contained in this Section shall survive the termination of the Lease. 25. LANDLORD'S TITLE. Tenant recognizes and agrees that-Landlord's title is and always will be paramount to tie title of Tenant and under no circumstances shall Tenant do or be empowered to do any act which can, shall or may encumber Landlord's title or subject the Premises or Building 'Or any part of either to any lien or encumbrance. P 26. HOLDING OVER. jf for any reason Tenant retains possession of the Premises or any part thereof after the termination of the term of.this Lease or any extension of the term, unless other written arrangements are made with Landlord, such holding over shall constitute a tenancy from month-to-month and Tenant shall pay Landlord monthly rental during the month-to-month tenancy computed at double the rate of rent payable hereunder for the final month of the last year of the term prior to such holding over.. 27. NO ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of a lesser amount than the monthly rent and other charges, nor shall any endorsement or statement on any check or on any letter accompanying any check be deemed an accord and satisfaction. 28. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the respective parties.herein, their heirs, executors, administrators, devisees, successor and permitted assigns .w., homever. i' r Any reference to Tenant he rein shall, for the purposes 19 A A-Iabrese lease shmalb\rstwran } . June 9, 2006 14, damage and the like, be deemed to include. Tenant, of determining Iiabilit}? for property partners, independent contractors, his or its . agents, of icers, ' employees, servants, licensees, invitees or visitors whomever. RESERVATIONS BY LANDLORD. In addition to other rights conferred by this 29. Agreement or by law, the Landlord reserves the right, to be exercised in Landlord's sole discretion, to: (a) take all measures as may be necessary or desirable f c} repair, protection of the Premises or of the Building; (b) sell or mortgage the Building; alter, add to, improve, * build additional stories on, or build adjacent to said obuillding (d) run necessary pipes, conduits and ducts through the Premises; and (e) carry n Y work, repairs, alterations or improvements in, on, or about the Building or in the vicinity thereof. Tenant hereby waives any claim to damage or inconvenience causes by such work. This paragraph. shall not be construed to diminish the obligations of Tenant with respect to repairs or improvements or.other obligations of Tenant provided herein, nor shall it be construed t create or increase any obligation on the part of Landlord with respect to repairs or improvements. 30. ESTOPPEL CERTIP"ICATE. At any time, and form time to time, the parties agree to execute, that within ten (10) days following request in writing from the other party, acknowledge and deliver to the requesting party a statement in writing certifying that this Lease is unmodified at in full force and effect (or if there have been modifications that the same is full force ;and effect as modified and stating the modification), the dates to which the rent and otter charges have been paid, and any other financial data relating to this Lease or the Leased Premises which such party may reasonably request: hereto shall be delayed or hindered in or 31. FORCE MAJEURE. In the event either party prevented from the performance of any act required under this Lease by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, restrictive governmental law or regulations, riots, insurrection, war or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of any such act shall be extended for a period equivalent to the period of such delay. The provisions of this Section shall not (a) operate to excuse Tenant from prompt payment of Annual Minimum Rent or any other payment required by the terms `zof this Lease, and (b) be applicable to delays 'resulting from the inability of a party to obtain financing or to proceed with its obligations under this Lease because of a lack of funds. 32. ARBITRATIONIWMVER OF JURY TRIAL. Any disagreement between Landlord and Tenant with respect to the interpretation or. application of this Lease, or the obligation of the parties hereund' r, shall be determined by arbitration unless the parties otherwise mutually agree in writing. Landlord and Tenant shall agree upon one arbitrator, otherwise there shall be three (3j, one named in writing by the Landlord and one named in writing by the Tenant within ten (10) days after notice of arbitration is served by either upon the other, and a third arbitrator selected by those two arbitrators within ten (10) days 20 s! bidlb\rsr\brandylcalabrese.lease June 9, 2006 thereafter. No one sb,41 serve as an arbitrator who is in any way financially interested in this Lease or in the affairs of either party hereto. This agreement to arbitrate shall be specifically enforceable under.the prevailing arbitration laws. The arbitrator or arbitrators shall have the power to award to either party to the dispute such sums, costs, expenses, and attorney's fees as fhe arbitrator or arbitrators may deem proper. The award rendered by the arbitrator or arbitrators shall be appealable to a court of competent jurisdiction within thirty (30) days bf notice of the arbitrators' award. Such appeal shall be prosecuted without delay and as rabidly as possible. f: 33. GUARANTY. At thy. time of executing this Lease, Tenant shall provided tp Landlord a signed Guaranty of Lease including the signature of the spouse, if any, in form and substance as set forth i1 Exhibit B hereto. Each' Guarantor shall provide Landlord with an annual financial statement upon request. 34. BUSINESS INTERRUPTION. Tenant acknowledges that the nature of Tenant's business involves government contracting work to which. Tenant relies on. such contracting work as asubstantial source of Tenant's business income: Said contracting work requires that certain qualifications. and terms be met by Tenant in order to obtain and keep said work. In light of this fact, Tenant agrees to provide Landlord written notice within fifteen (15) days of any substantial decrease in Tenant's government contracting work or the change or termination of Tenant's qualifications to the extent that said change or termination will result in loss of said contracting business to Tenant. 35. NON-WAIVER. Thee failure of the Landlord to seek redress for violation of, or to insist upon the strict performance of, any covenant or condition of the Lease, shall not prevent a subsequent act, whichwould have originally constituted a violation, from having all the force and effect of an original violation. The receipt by Landlord of rent with knowledge of the breach of any cc?yenant of this Lease shall not be deemed a waiver of such breach. 36. SHORT FORM LE kSE. Tenant agrees that, upon the written request of Landlord, Tenant will, at any time, join in the execution of a Memorandum of Lease in proper form for recording or filing in the appropriate office of the County of Cumberland setting forth the existence and term of this Lease; and Tenant shall take such action as may be necessary to permit such recording or filing. 37. MISCELLANEOUS. PROVISIONS. - No act or thing done or omitted to be done by Landlord or Landlord's agents. during the term of the Lease, which is necessary to enforce the terms of this Lease shall constitute an eviction by Landlord nor shall it be deemed an acceptance or surrender of said Premises, and no agreement to accept such surrender shall be valid unless in writing signed by Landlord. No employee of Landlord or Landlord's agent shall have any power. to accept the keys of said Premises prior to the termination of the Lease. The delivCry of keys to any employee of Landlord or Landlord's agent shall not operate as a termination of the Lease or a surrender of the Premises. t 21 `?• sly\d[b\rsrlbrdndy\calabrese.lease t June 9, 2006 Tenant represents and warrants to Landlord that Tenant has not incurred and will not incur any liability f0t brokerage fees, finder's fees, agents commissions or. similar compensation to third; parties in connection with this lease transaction. In the event Tenant has incurred any such fees, commissions or compensation, said fees, commissions and compensations incurred shall be charges solely against Tenant. Tenant agrees to indemnify Landlord against and hold Landlord harmless from any and all liabilities arising from any claims for such fee; commissions or compensation, including, without limitations the cost of counsel fees in connection therewith. The words "Landlord". and "Tenant",. wherever used in this Lease, shall be 'construed to mean Landlords and Tenants in allcases where there is more than one landlord or tenant, and the necessary. grammatical changes required to make the provisions hereof apply either to corporations .or individuals, men or women, shall in all cases.be assumed as though in each case fully expressed. The invalidity or uneriforceability of any provision hereof shall not affect or impair. any other provision. Wherb Tenant hereunder consists of more than one party, the obligations of each such party will.be joint and several hereunder. Provisions inserted herein or affixed hereto shall not be valid unless appearing in the duplicate original hereof held by the Landlord. In the event of variation or discrepancy, the Landlord's duplicate shall control. The headings of the several articles, paragraphs and sections contained herein are for convenience. only and do not define, limit or construe -the contents of such articles, paragraphs and sections. All negotiations, considerations, representations and understandings between the parties are incorporated herein and are superseded hereby, and the provisions hereof may be modified or altered only by agreement in writing between the parties.. There are no terms, obligations, covenants, statements, representations, warranties or conditions relating to the subject matters hereof other than those specifically contained herein. This Lease may not be amended or modified by any act or conduct of the parties or by oral agreements unless reduced and agreed to in writing signed by both Landlord and Tenant. No waiver of any of the terms of this Lease by Landlord shall be binding on Landlord unless reduced to. writing and signed by Landlord. Nothing contained in'is Lease shall be construed to be or to create a partnership or joint venture between the parties hereto. This Lease shall be ;governed by and enforced in accordance with the laws of the Cbmmonwealth of Pennsylvania. This Lease represents the entire understanding and agreement of the parties and the terms and provisions of this Lease shall only be modified or amended in writing signed by all parties hereto. 22 sh?c\dlb\rsr\brandy\calabrese.lease ) ) June 9, 2006 IN WITNESS WHEREOF, the parties intending to be legally bound have set their hands and seals the day and year first above written. ` WITNESS: LANDLORD: BRANDY INVESTOR, L.P. ATTEST: By..Bra y Mechanicsburg, LLC Ge er a er By: William F. othm n, Managing Member TENANT: CALA.BRESE & SONS, INC. By: Presideat 23 EXHIBIT A A.LL•THAT CERTAIN piece or parcel of land, situate, lying and being in Mechanicsburg Borough, Cumberland County shown as New Lot 2 on the Calabrese & Sons, Inc. Preliminary/Final Subdivision/Lot Consolidation Plan Recorded-April 3, 2006 in the Cumberland County. Recorder of Deeds Office in Plan Book 92 Page 44 to wit: BEGINNING at a point;on the southern side of Brandy Lane at a 5/8 inch rebar with cap thence South 27 degrees 04 minutes 00 seconds East a distance of 376.89 feet to a point thence North 37 degrees 14 minutes 52 seconds East a distance of 509.19 feet to a point thence North 37 degrees 05 minutes 01 seconds East. a distance of 66.58 feet to a point thence South 42 degrees 05 minutes 07 seconds East a distance of 179.93 feet to a point thence South 24 degrees 27 minutes 41 seconds East a distance of 490.52 feet to a point thence South 65 degrees 27 minutes 00 seconds West a distance of 593.70 feet to a point thence North 27 degrees 04 minutes 00 seconds West a distance of 744:.09 feet to a point thence North 40 degrees 20 minutes 30 seconds East a distance of 54.16 feet to a point and place of BEGINNING. shz\dlb rl raWcatabrese.lease Jane 9, 2006 EXHIBIT B PERSONAL GUARANTY OF LEASE In consideration of the'making of the above Lease, dated June 9, 2006, by the Tenant with the Landlord at the request of the undersigned, and in reliance of this Guaranty, the undersigned hereby unconditionally and irrevocably guarantees the payment of the rent to, be paid by the Tenant and the performance by the Tenant of all the terms, conditions, covenants and agreements of the Lease, and the undersigned promises to .pay all the Landlord's expenses, including reasonable attorney's fees, incurred by the Landlord in enforcing this Guaranty. The Lan dlord's consent -to any assignment or assignments, and successive assignments by the Tenant and Tenant's assigns, of this. Lease, made either with or without notice.to -the undersigned, or a changed or different use of the demised premises, or Landlord's forbearance delays, extensions of time or any other reason whether similar to 'or different from the foregoing, shall in no way or manner release the undersigned from liability as Guarantor. Where the undersigned include more than one party, the obligation of each such party hereunder will be joint and several. It will not be necessary for Landlord to. proceed first against Tenant in invoking any of Landlord's lease remedies before proceeding to. enforce this Guaranty of Lease. WITNESS the hand and seal of the undersigned at the date of the above Lease. GUARANTOR: o eph Calabrese 25 P 1l? r 30 ATTORNEYS AND COUNSELORS AT LAW YEARS July 2, 2009 Theodore A. Adler* Susan H. Confair David W. Reager John H. Pietrzak Linus E. Fenicle Wayne S. Martin, P.E ** Thomas O. Williams Neely E. Meals Peter R. Wilson Richard J. Joyce*** *Certified Civil Trial Specialist **Ucensed to Practice in N.J. ***Of Counsel Writer's Email dress: JPietrzak@ReagerAdlerPC.com Via Certified Mail, Return Receipt Req. Via Certified Mail, Return Receipt Req. Joseph Calabrese David A. Fitzsimons, Esq. Calabrese & Sons, Inc. AND Martson Law Offices 406 Brandy Lane Ten East High Street Mechanicsburg, PA 17055 Carlisle, PA 11013 Re: Notice of Default of Lease dated June 9, 2006 Our file No. 07-554.000 Dear Mr. Calabrese: This letter shall constitute formal Notice that Calabrese & Sons, Inc. is in violation of its Lease Agreement with Brandy Investors, LP dated June 9, 2006 for the leased premises located at 406 Brandy Lane, iVMechanicsburg, PA 17055, for failure to pay rent in the amount of $24,523.34 for both February and June 2009. Late fees of 5% have been assessed in the amount of $1,226.17 per month. Calabrese is also in continuing violation of the Lease Agreement for failure to pay taxes and insurance as follows: 2008 School Taxes: $33,789.53 2009 County & Boro taxes: $13,455.32 2008 Erie Insurance: $4,575.00 .2009 Erie Insurance: $5,274.00 The total principal amount of the above-listed amounts is $106,140.53, plus $2,452.34 in late fees. Interest has accrued at the annual rate of 12% on the principal amounts, which totals $5,186.88 as of July 1, 2009; and continues to accrue in the amount of $34.89 per day. The amounts listed above are in addition to other past defaults, which remain uncured. In compliance with its duties under the Lease Agreement, Brandy Investors hereby provides notice that it intends to pursue any and all remedies under the Lease Agreement, without further notice, if Calabrese & Sons, Inc. does?aot pay the above amounts within fifteen days of receipt of this letter. Please contact me to make payment arrangements. Thank you. JHP/j is cc: Brandy Investors, LP Vrxv Truly. Yours, John H. Pietrzak A N E N D U R I N G P A R T N E R S H I P 2331 Market Street, Camp Hill, Pennsylvania 17011-4642 T: 717 763-1383 F: 717 730-7366 www.reageradierpo.com A Postal m CERTIFIED M AIL RECEIPT tr, ru (Domestic Provided) _r 11 ru t]^ -:1; ILI ?.. ,., I A ii o PoNege $ . _ . CerMW Fee - MP N? C3 C3 Return R (E rem P #? Here r3 (Endd iaeomentir dj ..;. _ `? ?? y' C3 M . Total Post" 8 Fees $ JT :? `f:`3'_rr`;ittt3?r S 7U ` C3 -'-h- C...4_abr N '?otn f3ro.n -- - - or POeaNrn% o?°art? r, Y a Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse y -s4,that,We can return the card to you. f ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: '? Seph Co,,\ck-br.es- I C 1al?YeS2 ?'1 SW-)s,1r,c. i m?cilnar? csb6rc) 1 11 Da55 A. Received by (Please Print Clearly) I B. Date of Delivery C/ ! at// ' . ? Agent V Yes s derv address different from item 17 _a No If YES, enter delivery address 'below: PD 8vec ?6? 7?J?yG PA 1 ?pss z 3. Service Type U Certified Mail ? Expr ? Registered ? Return F ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) for ? Yes 6 r o 1092 4293 ``n 2. , 7O07 3ota 03x1 102595.00-M-0952 PS Form 3811, July 1999 Domestic Return Receipt Ai VERIFICATION I, Jack Jurasits, hereby verify that I am a Partner in Brandy Investors, LP, and, as such, I am authorized to verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Date: J0 2C769 By: k;j- tk wits •A 4 VERIFICATION I, William Rothman, hereby verify that I am a Partner in Brandy Investors, LP, and, as such, I am authorized to verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. - ------- -------------- Date: By. William RothA%an OF THE- P ,'i 2IN J?!L 22 Frl 3: C J $a'1. ?o pa ATM ?2833y REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: JpietrzakARea erAdlerPC com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams64Rea2erAdlerPC com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors LP BRANDY INVESTORS, LP, Plaintiff V. CALABRESE & SONS, INC., Defendant TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION NO. OQ y47(o Ctvit T+e(-M CONFESSION OF JUDGMENT IN EJECTMENT ENTRY OF APPEARANCE Enter my appearance for the above-named Defendant pursuant to the Warrant of Attorney contained in the Lease agreement between the parties, attached hereto. Respectfully submitted, REAGER & ADLER, P.C. Date: July 22, 2009 Jo . Pietrz , Esquir FIL a=r-?„, :OF THE C,,-- 'OF 2009 JUL 22 PM 3: 0 4 P?j q) REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: JJpietrzakaReagerAdlerPC com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams(a?Rea?erAdlerPC com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors LP BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION fn? CALABRESE & SONS, INC., : NO. d9 - ?q7? l.i?vi l Ter IK Defendant CONFESSION OF JUDGMENT IN EJECTMENT PRAECIPE FOR ENTRY OF JUDGMENT IN EJECTMENT BY CONFESSION TO THE PROTHONOTARY: Kindly enter judgment in ejectment by confession in the above-captioned matter against the Defendant for possession of the real property described below: The warehouse facility and any offices located at 406 Brandy Lane, Mechanicsburg, Pennsylvania 17055. Respectfully submitted, REAGER & ADLER, P.C. Date: July 22, 2009 . ?JOH. etr , E squire or Defendant FILEFJ-t;;jr ";rf: Cr THE pR., ,7r, ,O,, p y 2009 JUL 22 PH ?: 0 4 CLI"Vj V•,i t'Nj J PENIINSY1;,ANA BRANDY INVESTORS, LP, Plaintiff V. CALABRESE & SONS, INC., Defendant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION NO. 09 - yg7(p C' -IMTerh : CONFESSION OF JUDGMENT IN EJECTMENT NOTICE UNDER RULE 2973.2 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANTS' RIGHTS TO: Calabrese & Sons, Inc. A judgment for possession of real property has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a promissory note or other document allegedly executed by you. The Sheriff may remove you from the property at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent you from being removed from the property. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT MUST BE FILED WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Courthouse, 4`h Floor Carlisle, PA 17013 (717) 240-6200 Date: July 22, 2009 H. Pietrzak, quire REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorneys for Plaintiff, Brandy Investors, LP OF THE 2009 JUL 22 cuMp' REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jnietrzak(&ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams@ReajzerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors. LP BRANDY INVESTORS, LP, Plaintiff V. CALABRESE & SONS, INC., Defendant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. CR - y97(v (2ivi lTerrv, : CONFESSION OF JUDGMENT IN EJECTMENT NOTICE UNDER RULE 2737.1 OF RIGHT TO RECOVER ATTORNEY FEES AND COSTS AND PROCEDURE TO FOLLOW TO STRICK OFF OR OPEN A CONFESSED JUDGMENT TO: Calabrese & Sons, Inc. Pursuant to 42 Pa.C.S.A. 273 you are hereby notified that a debtor who has been incorrectly identified and had a confession of judgment entered against him shall be entitled to costs and reasonable attorney fees as determined by the court. Pursuant to 42 Pa.C.S.A. § 2737. 1, you are hereby notified of the instructions regarding the procedure to follow to strike off or open a confessed judgment under Pennsylvania Rule of Civil Procedure 2959, which is reproduced in full, on the following page. REAGER & ADLER, P.C. Date: July 22, 2009 Jo H. Pietrzak, E uire 2 31 Market Street Camp Hill, PA 17011 (717) 763-1383 PENNSYLVANIA RULE OF CIVIL PROCEDURE 2959 STRIKING OFF OR OPENING JUDGMENT; PLEADINGS AND PROCEDURE (a)(1) Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment. (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule 2958.3 or Rule 2973.3. (3) If a written notice is served upon the petitioner pursuant to Rule 2959.1(c)(2) or Rule 2973.1(c), then petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b) If the petition states prima facie grounds for relief, the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule 440. (e) the court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury, the court shall open the judgment. (f) The lien of the judgment of or any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. FILED- OFF CE OF THE FE THICI1 OTAPY 2009 JUL 22 PM 3: G 4 PENNSYLVANIA REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzak(&ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams aReag_er.AdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors LP BRANDY INVESTORS, LP, Plaintiff V. CALABRESE & SONS, INC., Defendant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION NO. bq - y97Lv (2W i l rem : CONFESSION OF JUDGMENT IN EJECTMENT AFFIDAVIT THAT JUDGMENT IN EJECTMENT IS NOT BEING ENTERED BY CONFESSION OF JUDGMENT AGAINST A NATURAL PERSON IN CONNECTION WITH A RESIDENTIAL LEASE Commonwealth of Pennsylvania ) ) ss: County of Cumberland ) I, John H. Pietrzak, being duly sworn according to law, hereby state that the judgment being entered by confession is not being entered against a natural person in connection with a residential lease. d' z ad 6-1, J H. Pietrzak, E uire Sworn to and subscribed Before me this-A /'''day of , 2009. i0tary Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Linda H. Miller, Notary Public Camp Hill Boro, Cumberland County My Commission Expires May 9, 2013 Member, Pennsylvania Association of Notaries CE THE R-,O f 1?N, Tr F?Y 2009 JUL 22 P19 3: O i4 REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzak@ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams(d?Rea erAdlerPC com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors LP BRANDY INVESTORS, LP, Plaintiff IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA V. CALABRESE & SONS, INC., Defendant CIVIL ACTION NO. Cq - yg7(0 lTiktt. : CONFESSION OF JUDGMENT IN EJECTMENT CERTIFICATION OF ADDRESSES I, John H. Pietrzak, Esquire of Reager & Adler PC, Attorney for Plaintiff Brandy Investors, LP hereby certify that Plaintiff Brandy Investors, LP's correct address is c/o RSR Realtors, 3 Lemoyne Drive, Suite 100, Lemoyne, Pennsylvania 17043 and that the correct address for Defendant Calabrese & Sons, Inc. is 406 Brandy Lane, Mechanicsburg, Pennsylvania, 17055 . I certify that the foregoing information is true and correct to the best of my knowledge, information, and belief. REAGER & ADLER, PC By: H. Pietrz Sworn to d S bscribed before me this day of?2009. ?2' ? -43 N tary Public CUMMONWEALTH OF PENNSYLVANIA Notarial Seal Linda H. Miller, Notary Public Camp + Rom, Cumberland County My Comrr; shion Expires May 9, 2013 Member, Pennsylvania Association of Notaries ALED-A':7,1uF OF THE PRCIP,-,IONXOTARY 2099 JUL 22 PM 3: 0 4 NTy PENNSYLVAI tt? REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzak(a,Rea erAdlerPC com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: TwilliamsaReagerAdlerPC com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors LP BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION CALABRESE & SONS, INC., : NO. Oq - q97(A 0,1vi l Iemt Defendants : CONFESSION OF JUDGMENT IN EJECTMENT NOTICE Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that a JUDGMENT IN EJECTMENT BY CONFESSION has been entered against you in the above proceeding and that enclosed herewith is a copy of all of the documents filed in support of said judgment. If you have any questions concerning this notice, please call John H. Pietrzak at (717) 763-1383. r thonotary b K. 7/?/o9 Sheriffs Office of Cumberland County R Thomas Kline Sheri 0MCE 4F ',E S`•ERIFF FILE_ OF TH E" ?•,'-7ipY Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant Edward L Schorpp Solicitor Brandy Investors, LP vs. Calabrese & Sons Inc. 2009 J,J 30 f. 11' 0: 32 Case Number 2009-4976 SHERIFF'S RETURN OF SERVICE 07/28/2009 10:40 AM - Jody Smith, Sergeant, who being duly sworn according to law, states that on July 27, 2009 at 1040 hours, she served a true copy of the within Confession of Judgment in Ejectment and Confession of Judgment for Posession of Real Property, upon the within named defendant, to wit: Calabrese & Sons Inc., by making known unto Joseph Calabrese, President 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. SHERIFF COST: $37.00 July 28, 2009 SO ANSWERS, 100-00 40'' e4l4w R'THOMAS KLINE, SHERIFF \-, CJ! - ? - Deputy eriff FARLES\Clients\11093 Calabrese\l 1093.2.pet5. wpd Seth T. Mosebey, Esquire I.D. No. 203046 David A. Fitzsimons, Esquire I.D. No. 41722 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants BRANDY INVESTORS, LP, : IN THE COURT OF COMMON PLEAS OF Respondent/Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-4976 CALABRESE & SONS, INC., and CIVIL ACTION - LAW Petitioner/Defendant : PETITION FOR RELIEF FROM CONFESSION OF JUDGMENT IN EJECTMENT AND NOW, comes the Defendant, Calabrese & Sons, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and files the following Petition for Relief from Confession of Judgment in Ejectment: 1. Petitioner Calabrese & Sons, Inc. is a Pennsylvania corporation located at 406 Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania. 2. Respondent Brandy Investors, LP is a Pennsylvania limited partnership with a mailing address of c/o RSR Realtors, 3 Lemoyne Drive, Suite 100, Lemoyne, Pennsylvania. 3. On July 22, 2009, Respondent filed a Confession of Judgment at Docket No. 09-4977 in the amount of $125,924.86 against Petitioner. 4. The Complaint in Confession of Judgment in Ejectment filed by Respondent is based upon Petitioner's alleged failure to pay the amounts set forth in the Confession of Judgment filed at Docket No. 09-4977. 5. On June 9, 2006, the parties entered into a Commercial Lease Agreement ("Lease"), a copy of which is attached to Respondent's Complaint. 6. Pursuant to Paragraph 3 of the Lease, Petitioner was required to provide Respondent with a credit of three months base rent in the amount of $70,025.00 to be held by Respondent in escrow. 7. Petitioner provided Respondent with a credit of $70,025.00 to be held in escrow. 8. Pursuant to Paragraph 7 of the Lease, if Petitioner failed to make any payments due under the Lease, then Respondent was permitted to use the credit paid by Petitioner for the payment of any sum in default. 9. Respondent has failed to utilize the credit to satisfy Petitioner's alleged default. 10. Pursuant to Paragraph 4 of the Lease, Respondent is required to provide Petitioner with written notice of the amount of the real estate taxes, together with a copy of the tax bill, and Petitioner is required to pay the amount of the real estate taxes to Respondent within thirty (30) days of the face amount period. 11. The discount period for the county/borough taxes runs from March 1 S` through April 30`h. 12. By Respondent's own admission, Respondent paid the 2009 county/borough taxes on March 31, 2009. 13. Respondent failed to adhere to the terms of the Lease by paying the 2009 county/borough taxes in the discount period. 14. Pennsylvania Rule of Civil Procedure 2959 authorizes Petitioner to either strike or open the confessed judgment. 15. "A petition to strike a judgment may be granted only for a fatal defect or irregularity appearing on the face of the record." Resolution Trust Corp v Coley Qu-Wavne Associates, 683 A.2d 269, 273 (Pa. 1996). 16. "Generally, such clearly established defects justifying a motion to strike arise when the judgment entered is for a grossly excessive amount or includes recovery for items that were not permitted in the contract authorizing a confession ofjudgment." J.F. Realty Co. v. Yerkes, 398 A.2d 215, 217 (Pa. Super. 1979). 17. A court acting in equity should open a confessed judgment "only when the petitioner `acts promptly, alleges a meritorious defense and presents sufficient evidence of that defense to require submission of the issues to the jury."' Id. (quoting First Seneca Bank & Trust Co. v Laurel Mountain Development Corte, 485 A.2d 1086, 1088 (Pa. 1984).) 18. In this case, the confession of judgment in ejectment should be stricken because Respondent failed to follow the procedure outlined in the Lease for the payment of the 2009 county and borough taxes. 19. The 2009 county/borough taxes were not yet due and in fact, were in the discount period when Respondent paid them. 20. Because the real estate taxes were not yet due, Respondent violated the terms of the Lease. 21. Because Respondent entered a confession of judgment without complying with the terms of the Lease, the confession of judgment in ejectment contains a fatal defect, and the judgment should be stricken. 22. In the alternative, the confession of judgment in ejectment should be opened because Respondent included improper amounts in the confession of judgment. 23. Respondent included the discount rate for the county and borough taxes even though the Lease does not provide for the payment of the discount rate. 24. Respondent's confession of judgment in ejectment also fails to credit Petitioner for its security payment of $70,025.00 which Respondent is currently holding in escrow. 25. Respondent's failure to use the escrowed funds to reduce the Petitioner's alleged default is particularly curious in light of the fact that its legal counsel has previously utilized Petitioner's escrowed funds from an unrelated transaction to satisfy costs in Respondent's previous suit against Petitioner. 26. No judge has ruled on an issue in this matter. WHEREFORE, Petitioner respectfully requests that this Honorable Court issue a stay of the proceedings in this matter and issue a Rule to Show Cause why the judgment in this matter should not be stricken, or in the alternative, opened. MARTSON LAW OFFICES By .tom Seth T. Mosebey, Esq e I.D. No. 203046 David A. Fitzsimons, Esquire I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: August 20, 2009 Attorneys for Defendants VERIFICATION I, Joseph Calabrese, President of Calabrese & Sons, Inc., hereby verify that I am authorized to sign this Verification and have reviewed the foregoing document and to the extent that the foregoing document contains facts supplied by or known to me, they are true and correct to the best of my knowledge, information and belief: I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Calabrese & Sons, Inc. r J,os9jph Calabrese F'...+ F A9LF:S%i'31.:m :..I I INI (. Aa!x.:;c+.l i n•)??.paS wyxl CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Defendants' Petition for Relief from Confession of Judgment in Ejectment was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John H. Pietrzak, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorney for Plaintiff MARTSON LAW OFFICES By: ti /,/, olut-u- Price MAry?vl. Ten ast High Street Carlisle, PA 17013 (717) 243-3341 Dated: ?' /; U 0 Y OF ?'H-' F "4.?Y CUM BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CALABRESE & SONS, INC., and JOSEPH CALABRESE, DEFENDANTS NO. 09-4976 CIVIL ORDER OF COURT AND NOW, this 24th day of August, 2009, upon consideration of the Defendant's Petition for Relief from Confession of Judgment in Ejectment, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Plaintiff to show cause why the relief requested should not be granted; 2. The Plaintiff will file an answer to the Petition on or before September 14, 2009; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Defendant shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Plaintiff files an answer to this Rule to Show Cause, the Court will determine if further order or hearing is necessary. 4. The Prothonotary is directed to forward said Answer to this Court. By the Court, John H. Pietrzak, Esquire Att rney for Plaintiff Seth Mosebey, Esquire Attorney for Defendants bas 0o ev SELL -N,-?UA M. L. Ebert, Jr., J. 2009 Ty REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Ji)ietrzak(a,ReaaerAdlerPC com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliamsna ReaaerAdlerPC com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors LP BRANDY INVESTORS, LP, Respondent/Plaintiff IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA V. CALABRESE & SONS, INC., Petitioner/Defendants : CIVIL ACTION : NO. 09-4976 CONFESSION OF JUDGMENT IN EJECTMENT RESPONDENT BRANDY INVESTORS LP'S ANSWER TO PETITIONERS' PETITION FOR RELIEF FROM CONFESSION OF JUDGMENT IN EJECTMENT AND NOW, comes the Respondent, Brandy Investors, LP, by and through its attorneys, Reager & Adler, P.C., and files the following Answer to Petitioner's Petition for Relief from Confession of Judgment in Ejectment, and in support thereof, avers the following: Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted with clarification. This credit required under Paragraph 3 of the Lease is a security deposit. 7. Admitted. 8. Denied. The lease is a written document that speaks for itself. Any characterization of the Lease is therefore denied. By way of further answer, Paragraph 7 of the Lease requires that if Respondents uses any amount of the security deposit as payment for rent that Petitioner failed to pay, then Petitioner is required to immediately repay that portion of the security deposit to Respondents to bring it back up to the required level of $70,025.00. 9. Denied as stated. Respondents are under no obligation to use the security deposit as a substitute for Petitioner's rent. Even if Respondents did use the security deposit as payment of rent that Petitioner has otherwise defaulted on, paragraph 7 of the Lease would require Petitioner to immediately repay the security deposit to Respondents. 10. Denied. The lease is a written document that speaks for itself. Any characterization of the Lease is therefore denied. 11. Admitted. 12. Admitted. 13. Denied. There is nothing in the Lease requiring Respondents to wait until the face period to pay the taxes. The Lease requires Petitioner to pay the amount due for the taxes to the Respondent within 30 days of the face period. Petitioner failed to do so and to date has not paid Respondents any amount for these taxes. By way of further answer, Petitioner has a long history of failing to pay the amount due for taxes. Therefore, when Petitioner did not take action to pay the taxes in the discount period, and based upon C&S' history of failing to pay taxes as required by the Lease, Respondent mitigated its damages by paying the 2009 county & borough taxes on March 31, 2009. 14. This paragraph contains a legal conclusion to which no response is required. 15. This paragraph contains a legal conclusion to which no response is required. 16. This paragraph contains a legal conclusion to which no response is required. 17. This paragraph contains a legal conclusion to which no response is required. 18. Denied. There is no basis to strike the confessed judgment. The Lease puts no restriction whatsoever upon Respondent as to when it may pay the taxes. The Lease expressly requires Petitioner to pay the amount due for the taxes to the Respondent within 30 days of the face period, as Petitioner admits in Paragraph 10 of its Petition. Petitioner has to date not paid Respondent any amount for the 2009 county & borough taxes. 19. Denied. Petitioner's averment is irrelevant. The Lease puts no restriction whatsoever upon Respondent as to when it may pay the taxes. The fact that Respondent chose to pay the taxes in the discount period did not relieve Petitioner of its obligation under the Lease to pay the amount due to the Respondent within 30 days of the face period on the tax notice. Petitioner failed to pay any amount to Respondent for the 2009 county & borough taxes within 30 days of the face period or at any other time, in clear violation of the Lease. 20. Denied. Petitioner is stating facts that are irrelevant to the question of whether Respondent included "grossly excessive amounts" in the confessed judgment or whether the confessed judgment included items that were not permitted in the contract authorizing confession of judgment, which are the only bases for striking the confessed judgment. The only relevant fact is that Petitioner defaulted on its obligation to pay the amount due for the 2009 county & borough taxes to Respondent within 30 days of the face period. Respondent's action in paying the taxes during the discount period is irrelevant and does not relieve Petitioner of its obligations under the Lease. 21. Denied. Petitioner's argument in this paragraph does not comply with the standard for striking a confessed judgment that the Petitioner itself set forth in Paragraph 16 of its Petition. Respondent complied with its obligation under the Lease when it provided Petitioner with notice of the taxes due. Petitioner failed to pay the amount due to Respondent, which constituted a default of the Lease for which Respondent was permitted to confess judgment. Petitioner has not alleged any facts that would satisfy the standard required to strike a confessed judgment. Petitioner must allege facts suggesting that Respondent included "grossly excessive amounts" in the confessed judgment or that the confessed judgment included items that were not permitted in the contract authorizing confession of judgment. Petitioner's Petition does not even allege facts that would satisfy this standard. The Petition does not, therefore, provide the Court with a basis to strike the confessed judgment. 22. Denied. The confessed judgment did not include any improper amounts. There is therefore no basis to open the confessed judgment. 23. Denied. Petitioner is alleging facts that are irrelevant to the question of whether Petitioner has a "meritorious defense" to the confessed judgment. The Lease requires Petitioner to pay the amount due for taxes to Respondent within 30 days of the face period. Petitioner failed to do so. The timing of when Respondent paid the tax does not change Petitioner's obligation under the lease. Petitioner's argument that the confessed judgment includes improper amounts because the amount included in the confessed judgment for the taxes paid during the discount period is less than what would be included if Respondent paid the face period amount is a novel argument, but it does not provide Petitioner with a "meritorious defense" to the confessed judgment. This argument, therefore, does not provide any basis to open the confessed judgment. 24. Denied. The averment contained in this paragraph does not provide the Petitioner with a "meritorious defense" to the confessed judgment and therefore does not provide any basis to open the confessed judgment. The Respondent is not required to use the $70,025.00 security deposit as credit for unpaid rent. Petitioner owes more than $70,025.00 to Respondents for prior unpaid rent and taxes that are not included in this confessed judgment. So even if Respondent chose to use the security deposit as credit for unpaid rent, it would be credited to previous defaults that are not included in this confessed judgment. 25. Denied. Petitioner's allegation is factually incorrect, grossly misleading and irrelevant in any case. Neither Respondent nor its legal counsel used Petitioner's escrowed funds to satisfy costs in any previous suit between Respondent and Petitioner. Unfortunately, Respondent must now set forth an explanation of the accurate facts, although they bear no relevance to the current matter, in order to counter Petitioner's counsel's misleading accusation of impropriety against Respondent and its counsel. In June 2006, Respondent purchased the property located at 406 Brandy Lane from Petitioner. This is the same property that Petitioner now leases from Respondent. In order to complete the transaction, outstanding judgments against Petitioner had to be satisfied and marked as such with the Cumberland County Prothonotary. Prior to entering the praecipe to satisfy one such judgment, the Sheriff's poundage in the net amount of $718.08 had to be paid. Respondent's counsel paid this poundage out of funds the Petitioner had escrowed specifically for the satisfaction of the judgments. Respondent's Counsel notified Petitioner's counsel, David A. Fitzsimons that it intended to pay the poundage out of the escrowed funds prior to doing so. See Exhibit A, July 18, 2006 letter from David W. Reager, to David A. Fitzsimons. See Exhibit B, Ledger report showing escrow of funds for payment of judgments and payment of poundage on July 19, 2006. Petitioner's counsel voiced no objection to this use of the escrowed funds at any time prior to its filing the instant Petition for Relief. Once Petitioner resolved the final judgment affecting the escrowed funds, Respondent's counsel disbursed the remaining escrow to Petitioner's counsel, who, again, voiced no objection to the use of any escrowed funds throughout the entire transaction. See Exhibit C, October 28, 2008 letter from David W. Reager to David A. Fitzsimons. It is clear that Respondent's counsel's use of the escrowed funds was completely appropriate, was done with complete prior disclosure to Petitioner's counsel and that the escrowed funds were directly related to the transaction for which they were utilized. None f these facts bear any relevance to the instant matter, nor do they provide Petitioner with any basis for relief against the confessed judgment entered in this matter. 26. Admitted. WHEREFORE, Respondent, Brandy Investors, LP, requests this Honorable Court to deny Petitioners' Petition for Relief from Confessed Judgment in Ejectment. Respectfully submitted, REAGER & ADLER, P.C. Date: September 11, 2009 6 ' Jo H. Pietrzak, Esqu' e Attorney I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 Attorneys for Plaintiff, Brandy Investors, LP REAGER & ADLER, PC ATTORNEYS AND COUNSELORS AT LAW 2331 MARKET STREET CAMP HILL, PENNSYLVANIA 17011-4642 717-763-1383 TELEFAX 717-730-7366 WEBSITE: ReagerAdlerPC.com THEODORE A. ADLER + DAVID W. REAGER CHARLES E. ZALESKI LINUS E. FENICLE THOMAS O. WILLIAMS SUSAN J. SMITH Writer's E-Mail Address: DWReager@ReagerAdlerPC.com July 18, 2006 VIA E-MAIL AND FIRST CLASS MAIL DFitzslmons@MDWO.com David A. Fitzsimons, Esquire Martson Deardorff Williams & Otto 10 East High Street Carlisle, PA 17013 RE: CALABRESE & SONS, INC. Dear David: SUSAN H. CONFAIR TIFFANY M. CARTWRIGHT PETER R. WILSON JOHN H. PIETRZAK RICHARD J. JOYCE +Certified Civil Trial Specialist The purpose of this letter is two-fold. One, as a response to your letter to me dated July 13, 2006, and also as further advice regarding our activities in having the Judgments at the county marked satisfied. First, with regard to your letter, as you may expect, I find it to be incredulous, given the fact that your client sat in our offices at the closing and failed to mention that a Judgment was entered against him in the amount of $34,937.45, in spite of the fact that the court records indicate that he was provided with written notice of that entry of Judgment several days prior to closing. Nonetheless, he signed and provided us with an Owner's Affidavit, which indicates, among other things, that he has no knowledge of such Judgments entered of record. I believe that our action in stopping payment on the funds disbursed, as well as my efforts in contacting you prior to stopping any of your major creditor payments, was appropriate and courteous. Accordingly, please be advised that we decline to provide any form of reimbursement to Mr. Calabrese. Additionally, while we have endeavored to move through all of these matters relating to his lawsuits and credit difficulties, in retrospect, my preference would have been to simply postpone scheduling closing until he was able to deliver to us all of the documentation required in connection with his cleared title. Instead, in order to accommodate the parties, which resulted in our rescheduling settlement several times over a period of more than a week, we put forth extra efforts in assisting and coordinating all of these various outstanding issues. David A. Fitzsimons, Esquire July 18, 2006 Page 2 My second reason in writing to you is, as we have continued to resolve your client's outstanding issues, we have been advised by the Prothonotary's Office that they are unable to enter the Praecipe relating to the Dyson Corporation Judgment without first paying the 2% poundage to the Sheriff's Office in the net amount of $718.08, which represents the balance due after the total of $868.09, less the credit of $150.00 already posted for the various filing fees. Again, it would have been our preference to have had this resolved by your client so that it would not be necessary for us to continue processing these matters. Accordingly, I am suggesting that we simply disburse the $718.08 and apply it against the escrow balance we are maintaining ($13,182.44) pending the final outcome of the Judgment held by Turri Associates, Inc. Also, in this regard, it would be unnecessary for us to continue to monitor this file for your client to work through matters on the Judgment if we had simply required total payment at the time of closing; another extended courtesy. Very truly yours, David W. Reager DWR/sam cc: William F. Rothman Date: 09/09/2009 TAS Client Trust Ledger Reager & Adler, PC Attorney: 1 David W. Reager 6283,000-5 Rottiman/WtAiam F. 406 Brandy Lane Date Check # Description 06/23/2006 Deposit MIDSTATE CK# 22176 -FOR Amount Balance Payee JUDGEMENT SATISFACTION 40,000.00CR 40,000.00 06/23/2006 Deposit MIDSTATE CK# 120523 - FOR JUDGEMENT SATISFACTION 13,182.44CR 53,182.44 06/29/2006 6227 Reimbursement for ck# 22178 109.8106 53,072.63 MIDSTATE SETTLEMENT ACCT 06/29/2006 6225 34,937.45DB 18,135.18 Turri Associates 06/29/2006 6226 Turn Payoff remainder 5,062.55DB 13,072.63 Calbrese & Sons Inc 06/29/2006 6228 , 127.OODB 12,945.63 Recorder of Deeds 07/19/2006 6237 10/ 718.08DB 12,227.55 SHERIFF OF CUMBERLAND COUNTY - 28/2008 6763 Disbursement 12,227.55DB 0.00 Martson Deardorff Williams Otto Total Deposits: 53 182.44CR Total Checks: Closing Balance: , 53,182.44DB $0.00 1 Page: 1 9P Wednesday 09/09/2009 2:57 p. REAGER & ADLER, PC ATTORNEYS AND COUNSELORS AT LAW - 2331 MARKET STREET CAMP HILL, PENNSYLVANIA 17011-4642 717-763-1383 TELEFAX 717-730-7366 WEBSITE: ReagerAdlerPC.com THEODORE A. ADLER + DAVID W. REAGER LINUS E. FENICLE THOMAS O. WILLIAMS PETER R. WILSON Writer's E-Mail Address: DWReager@ReagerAdlerPC.com October 28, 2008 David A. Fitzsimons, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 RE: CALABRESE & SONS, INC. Our File No. 06-283 Dear David: SUSAN H. CONFAIR JOHN H. PIETRZAK RICHARD J. JOYCE NEELY E. MEALS WAYNE S. MARTIN, P.E. +Certified Civil Trial Specialist This letter is a follow-up to your letter dated October 22, 2008, as well as our telephone conversation on Monday, October 27, 2008, regarding the escrow amount and the referenced matter. As we discussed, at the time of closing on June 15, 2006, we retained in escrow $13,182.44 to be made available for payment of a judgment against Calabrese & Sons, Inc., by Danko Arlington governed by the provisions of the Escrow Agreement dated June 15, 2006, executed by the parties. By your letter dated October 22, 2008, you have provided me a letter from James J. Woodworth, Esquire, dated October 16, 2008, advising their client, Danko Arlington, has accepted your offer to settle this matter for $6,591.22 in total. As I indicated to you when we spoke, the escrow balance is presently $12,227.55 which reflects certain disbursements as follows: Beginning Balance $13,182.44 Reimbursement to Midstate Abstract settlement account for Check No. 22178 payable to Freidman & King, PC $109.81 Recorder of Deeds $127.00 Sheriff of Cumberland County $718.08 Subtotal 854.89 Ending Balance $12,227.55 David A. Fitzsimons, Esquire Page 2 October 28, 2008 I have reviewed our statements in detail and determined that these charges were not added to any of the claims against Calabrese & Sons, Inc., in connection with any litigation. Accordingly, please find enclosed our escrow check made payable to Martson Deardorff Williams Otto Gilroy & Faller for $12,227.55 which is provided to you upon the understanding that you will make payment directly to James J. Woodworth, Esquire, on behalf of his client, Danko Arlington, Inc., and that you provide me with a time-stamped copy of the satisfaction of the judgment of record. Very trulZReager Davi . DWR/dlb Enclosure FAX: Bill Rothman Conmarce REAGER .& ADLER, P1C: -y; 6763 ESCROW ACCOUNT 2331 MARKET STREET CAMP HILL, PENNSYLVANIA 17011 60-184/313 DATE NUMBER AMOUNT PAY 10/28/2008 6763 *$12227.55 ***TWELVE THOUSAND TWO HUNDRED TWENTY-SEVEN & 55/100 DOLLARS To THE Martson Deardorff Williams Otto ORDER -o Gilroy & Faller as :. AUT 101MEp 51GNAru E William F. -Rothman 05? RUN 11'00676311' 1:0 3 1 30 1846D: 53 7053.84 Su' iEAGER & ADLER, P.C. PAY TO 6763 DATE TRUST NAME AMOUNT 10/28/2008 William F. Rothman Disbursement 12227.55 Account: 6283.000-5 VERIFICATION I, William Rothman, hereby verify that I am a Partner in Brandy Investors, LP, and, as such, I am authorized to verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. §4904, relating to unsworn falsification to authorities. e? Date: (r a By: 9 - f William Rot an BRANDY INVESTORS, LP, Respondent/Plaintiff V. CALABRESE & SONS, INC., Petitioner/Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION : NO. 09-4976 CONFESSION OF JUDGMENT IN EJECTMENT CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing Respondent's Answer to Petitioners' Petition for Relief From Confession of Judgment in Ejectment was served via first class U.S. mail, postage prepaid, to the following: David A. Fitzsimons, Esquire Martson, Deardorff, Williams Otto Gilroy & Faller, P.C. Ten East High Street Carlisle, PA 17013 Dated: September 11, 2009 C QJ? J sica Shull FILED-?.?? "?,` OF THE. PRNO 2M SEP 14 F f,_l 2= 1 13 _ r_ 1? I r . REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: JJpietrzak(-)Rea erg_AdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams(a)Reag_erAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors, LP BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS, Respondent/Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION CALABRESE & SONS, INC., NO. 09-4976 Petitioner/Defendants : CONFESSION OF JUDGMENT IN EJECTMENT PLAINTIFF BRANDY INVESTORS. LP'S MOTION FOR EMERGENCY ORDER OF POSSESSION AND NOW, comes the Respondent, Brandy Investors, LP, by and through its attorneys, Reager & Adler, P.C., and files the following Motion for Emergency Order of Possession pursuant to Cumberland County Local Rule of Court 298.3(a), and in support thereof, avers the following: 1. On July 22, 2009, Plaintiff, Brandy Investors, LP (hereinafter "Brandy") filed a Confession of Judgment in Ejectment at Docket No. 09-4976 against Defendant Calabrese & Sons, Inc. (hereinafter "Calabrese") seeking possession of the property located at 406 Brandy Lane, Mechanicsburg, PA 17055 (hereinafter the "leased premises") for Calabrese's numerous defaults of rent and other amounts due under a commercial lease (hereinafter the "Lease"). 2. Calabrese filed a Petition for Relief from Confession of Judgment in Ejectment on August 20, 2009. I . `. The Court issued a Rule to Show Cause on August 24, 2009 requiring Brandy to file an Answer to Calabrese's Petition for Relief, and stating that "If Plaintiff files an Answer to this Rule to Show Cause, the Court will determine if further order or hearing is necessary." 4. Plaintiff filed an Answer to the Rule to Show Cause and to Calabrese's Petition for Relief on September 14, 2009. 5. Brandy's Complaint for Confession in Ejectment seeks an order of possession due to Calabrese's defaults of rent and tax payments required under the Lease in the principal amount of $106,140.53. Brandy has filed a separate Confession of Judgment against Calabrese to recover these amounts due, filed at Docket No. 09-4977, which is not before this Court. 6. Brandy seeks an immediate Order of Possession from this Court. Since Brandy filed the two Confessions of Judgment in July 2009 (Docket No. 09-4977 for monetary recovery and Docket No. 09-4976 for Ejectment), Calabrese has failed to make any further payments of rent or taxes due under the Lease. 7. Pursuant to the Lease between the parties, Calabrese was required to pay rent in the amount of $25,136.42 for August 2009, September 2009 and October 2009. Calabrese has failed to make these rent payments, totaling an additional $75,409.26 in defaults not including late charges or interest. Further, Brandy paid the 2009 School Taxes on August 25, 2009 in the amount of $34,464.34, which was Calabrese's responsibility to pay under the Lease. 9. It is evident that Calabrese intends to default on all future rent and tax payments due under the Lease until Brandy is able to obtain an Order of Possession to regain possession of the leased premises. 2 10. Brandy has had to continue making its mortgage payments during the pendancy of Calabrese's Petition for Relief in order to avoid defaulting on its financing obligations for the subject property, without the benefit of receiving any rent from Calabrese. This has caused Brandy great financial hardship. 11. As explained in Brandy's Answer to Calabrese's Petition for Relief from the Confessed Judgment in Ejectment, Calabrese's Petition for Relief did not state any basis upon which this Court can either open or strike the Confessed Judgment in Ejectment. 12. As Calabrese's Petition for Relief did not set forth any basis that would permit this Honorable Court to open or strike the Confessed Judgment, there is no need for this Court to schedule a hearing in this matter or set a briefing schedule before denying Calabrese's Petition for Relief and issuing an Order of Possession to Brandy. 13. As Calabrese has ceased making rent and tax payments altogether since the filing of the Confessed Judgment in July 2009, it would be manifestly unfair to permit Calabrese to remain in possession of the leased premises for any additional length of time. 14. Unless this Honorable Court issues an immediate Order granting Brandy possession of the leased premises, Brandy will continue to suffer great financial harm at the hands of Calabrese. 15. Brandy therefore respectfully requests that this Honorable Court issue an immediate Order denying Calabrese's Petition for Relief and granting Plaintiff, Brandy Investors, LP possession of the leased premises at 406 Brandy Lane, Mechanicsburg, PA 17055. 16. In the alternative, Brandy respectfully request this Honorable Court to issue an immediate Order requiring Calabrese to pay Brandy the rent owed for August, September and October 2009 in the amount of $75,409.26, plus $34,464.34 for the 2009 School taxes, for a total amount of $109,873.60. Further, Brandy requests the Court to Order Calabrese to continue to pay its rent in the monthly amount of $25,136.42 for November 2009 and every month thereafter, all as a condition of maintaining its challenge to the Confessed Judgment in Ejectment, including any time period after such Confessed Judgment may have been opened until final resolution of this matter. 17. Concurrence of Counsel for Calabrese & Sons, Inc. to the relief sought in this Motion was sought and denied. 18. Defendant's Petition for Relief from Confessed Judgment in Ejectment is assigned to and currently pending before Judge M. L. Ebert, Jr. WHEREFORE, Plaintiff, Brandy Investors, LP, requests this Honorable Court to deny Defendant Calabrese & Sons, Inc.'s Petition for Relief from Confessed Judgment in Ejectment and to immediately issue an Order of Possession to the Plaintiff. Respectfully submitted, REAGER & ADLER, P.C. Date: October 23, 2009 oz,? G ?Af Jo H. Pietrzal , Esq e Attorney I.D. No. 79538 Attorney for Plaintiff, Brandy Investors, LP 4 VERIFICATION I, Jack. Jurasits, hereby verify that I am a Partner in Brandy Investors, LP, and, as such, I am authorized to verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Date:' By: a? L4t:Z;0'4 J uras' BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS, Respondent/Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION CALABRESE & SONS, INC., : NO. 09-4976 Petitioner/Defendants CONFESSION OF JUDGMENT IN EJECTMENT CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing Plaintiffs Motion for Emergency Order of Possession was served via certified U.S. mail, return- receipt requested, to the following: Seth T. Mosebey, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Dated: October 23, 2009 J sica Shull RMORCE OF THE PFOWNU Y 2049 OCT 26 PM 3: 25 PENNSYLVANIA OCT 2 7 2009. BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS, Respondent/Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION CALABRESE & SONS, INC., NO. 09-4976 Petitioner/Defendants : CONFESSION OF JUDGMENT IN EJECTMENT ORDER AND NOW, this day of IVOV??`p?,f , 2009, upon consideration of Defendant, Calabrese & Sons, Inc.'s Petition for Relief from Confession of Judgment in Ejectment and Plaintiff, Brandy Investors, LP's Answer thereto, as well as upon consideration of Plaintiffs Emergency Motion for Order of Possession and Defendants Answer thereto, if any, it is hereby ORDERED that Defendant Calabrese & Sons, Inc.'s Petition for Relief from Confession of Judgment in Ejectment is DENIED. It is further ORDERED that Plaintiff Brandy Investors, LP is granted immediate Possession of the property located at 406 Brandy Lane, Mechanicsburg, Pennsylvania 17055. - 1?k -? k M. L. Ebert, Jr., J. Counsel for Plaintiff: /hn H. Pietrzak, Esquire, Reager & Adler, P.C., 2331 Market St., Camp Hill, PA 17011 Counsel for Defendant: /eth T. Mosebey, Esq., Martson Law Offices, 10 East High Street, Carlisle, PA 17013 4 ;ter H: i^? I i 2999 t9`' -9 Fi '1 u: 3 1 F:\FILES\Clients\11093 Calabrese\I 1093.1petitionreopenorder/tde David A. Fitzsimons, Esquire Seth T. Mosebey, Esquire I.D. No. 203046 and No. 41722 MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant BRANDY INVESTORS, LP, : IN THE COURT OF COMMON PLEAS OF Respondent/Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-4976 CALABRESE & SONS, INC., and CIVIL ACTION - LAW Petitioner/Defendant : PETITIONER/DEFENDANT'S PETITION FOR RECONSIDERATION OF THE COURT'S ORDER OF NOVEMBER 9, 2009 AND NOW, comes the Petitioner/Defendant, Calabrese & Sons, Inc. ("Calabrese"), by and through its attorneys, MAR.TSON LAW OFFICES, and files the following Petition seeking reconsideration of the Court's Order of November 9, 2009, and scheduling of proceedings for an orderly transfer of possession of real estate as follows: 1. This Petition arises from actions under the above referenced docket relating to Confessions of Judgment at No. 09-4977 and Confessions of Judgment in Ejectment at No. 09-4976 against Calabrese and seeks relief from immediate action contemplated by Brandy Investors which would effect irreparable harm upon Calabrese and halt in-place, ongoing federal military procurement. 2. Issues relating to contesting the final amount owed under the judgment have not yet been disposed as is evidenced by the Order of Judge Oler dated November 6, 2009, attached hereto as Exhibit "A." 3. Judge Oler's Order disposes of Calabrese's objections to the confessed judgment but acknowledges that the amount at issue remains undetermined. 4. Brandy Investors filed a Motion for Emergency Order of Possession on or about October 23, 2009, while the action in front of Judge Oler was pending. The instant action in possession was assigned to the Honorable M. L. Ebert, Jr. 5. On November 9, 2009, Judge Ebert issued an Order (attached hereto as Exhibit "B") granting Brandy Investors immediate possession without opportunity for hearing or for disposition of the matters related to whether or not Brandy Investors' prayer for emergency possession is appropriate. 6. In fact, substantial hardship to Calabrese, its employees and customers, including federal military procurement entities would occur if Brandy Investors were allowed to immediately eject Calabrese from the facilities. 7. The facilities are a substantial machine shop operation with heavy machinery and ongoing federal contracts in place that would require substantial time and investment to remove, and simply ejecting Calabrese and leaving the equipment and in-progress federal contracts in place would cause substantial hardship and dislocation to not only Calabrese but also to, its employees, and the United States Navy, among other customers. 8. Upon information and belief, while Brandy Investors has posted the property for lease or sale, no tenant is immediately available for this machine shop facility, which is in excess of 20,000 square feet. 9. Counsel for Brandy Investors does not concur in the relief sought in this Petition. WHEREFORE, Petitioner/Defendant Calabrese & Sons, Inc., respectfully prays that the Court will reconsider its Order of November 9, 2009, and order an appropriate proceeding to determine the orderly transfer of possession to Brandy Investors. MARTSON LAW OFFICES By . 0? O&?? David A. Fitzsimons squire Seth T. Mosebey, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: A 113169 Attorneys for Defendant EXHIBIT A BRANDY INVESTORS, LP, Plaintiff V. CALABRESE & SONS, INC., and JOSEPH CALABRESE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 09-4977 CIVIL TERM IN RE: DEFENDANTS' PETITION FOR RELIEF FROM CONFESSION OF JUDGMENT BEFORE OLER, J. ORDER OF COURT AND NOW, this 6 h day of November, 2009, upon consideration of Defendants' Petition for Relief from Confession of Judgment, and following oral argument held on November 4, 2009, the petition is denied. NOTHING in this order is intended to represent a ruling that Defendants are not entitled to a return of all or part of the security deposit in this case. BY THE COUR, J. esley Oler, r., J. John H. Pietrzak, Esq. 2331 Market Street Camp Hill, PA 17011 Attorney for Plaintiff Da id A. Fitzsimons, Esq. East High Street Carlisle, PA 17013 Attorneys for Defendants "'ZA the EXHIBIT B s OU 21 Z009 0?. BRANDY INVESTORS, LP, Respondent/Plaintiff V. CALABRESE & SONS, INC., Petitioner/Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION NO. 09-4976 CONFESSION OF JUDGMENT IN EJECTMENT ORDER AND NOW, this ((?? 'Ij?lday of 2009, upon consideration of Defendant, Calabrese & Sons, Inc.'s Petition for Relief from Confession of Judgment in Ejectment and Plaintiff, Brandy Investors, LP's Answer thereto, as well as upon consideration of Plaintiffs Emergency Motion for Order of Possession and Defendants Answer thereto, if any, it is hereby ORDERED that Defendant Calabrese & Sons, Inc.'s Petition for Relief from Confession of Judgment in Ejectment is DENIED. It is further ORDERED that Plaintiff Brandy Investors, LP is granted immediate Possession of the property located at 406 Brandy Lane, Mechanicsburg, Pennsylvania 17055. )51.,M. -A. . L. Ebert, r., J. Counsel for Plaintiff: John H. Pietrzak, Esquire, Reager & Adler, P.C., 2331 Market St., Camp Hill, PA 17011 Counsel for Defendant: Seth T. Mosebey, Esq., Martson Law Offices, 10 East High Street, Carlisle, PA 17013 7171697 6506 12:05:35 p.m. 11-13-2009 1 /1 11!1J!LUU? 11: CJJ !1/-L4J?l UDO rvwK 15UN LAW YA(L 3911H .7 MU CATIQL I, Joseph Calabrese, President of Calabrese & Sons, Inc., hereby verify that I am authorized to sign this Verification and have reviewed the foregoing document and to the extent that the foregoing document contains facts supplied by or known to me, they are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 P&C.S.A. §4904, relating to answom falsification to authorities. Calabrese & Sons, Inc. 1117 o Calabrese FiFFLE.S imAl loos OYDr"110"Apeddnmeop wwdrt A CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Defendants' Petition for Reconsideration was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John H. Pietrzak, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorney for Plaintiff MARTSON LAW OFFICES By: M . Price Ten ast High Street Carlisle, PA 17013 (717) 243-3341 Dated: , l / 3 a 9 ??? ??! ? - ? ra??f ,?- ???. ..,? { ..• ?. t.X ? ? ? 4? 2?'?9 t?`r 13 ?? j ; { ?„ __. ?, ? {S??! Y" FARLES\Clients\11093 Calabrese\l 1093.2.pet8.wpd/tde David A. Fitzsimons, Esquire Seth T. Mosebey, Esquire I.D. No. 203046 and No. 41722 MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant BRANDY INVESTORS, LP, : IN THE COURT OF COMMON PLEAS OF Respondent/Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-4976 CALABRESE & SONS, INC., and : CIVIL ACTION - LAW Petitioner/Defendant : DEFENDANT'S PETITION FOR STAY OF EXECUTION AND NOW, comes the Petitioner/Defendant, Calabrese & Sons, Inc. ("Calabrese"), by and through its attorneys, MARTSON LAW OFFICES, and files the following Petition, pursuant to Pa. R.C.P. Rule 3162, seeking a stay of execution and an orderly transfer of possession of real estate as follows: 1. This Petition arises from actions under the above referenced docket relating to Confessions of Judgment at No. 09-4977 and Confessions of Judgment in Ejectment at No. 09-4976 against Calabrese and seeks a stay of execution in order to prevent irreparable harm upon Calabrese and halt in-place, ongoing federal military procurement. 2. Issues relating to contesting the final amount owed under the judgment have not yet been disposed as is evidenced by the Order of Judge Oler dated November 6, 2009, attached hereto as Exhibit "A." 3. Judge Oler's Order disposes of Calabrese's objections to the confessed judgment but acknowledges that the amount at issue remains undetermined. Moreover, Brandy Investors, despite requests, has yet to account for the status of the escrowed funds, including interest and current balance. 4. Brandy Investors filed a Motion for Emergency Order of Possession on or about October 23, 2009, while the action in front of Judge Oler was pending. The instant action in possession was assigned to the Honorable M. L. Ebert, Jr. 5. On November 9, 2009, Judge Ebert issued an Order (attached hereto as Exhibit "B") granting Brandy Investors immediate possession without opportunity for hearing or for disposition of the matters related to whether or not Brandy Investors' prayer for emergency possession is appropriate. 6. On November 12, 2009, Brandy Investors filed a Praecipe for Writ of Possession requesting that the Sheriff of Cumberland County deliver possession of the premises at 406 Brandy Lane, Mechanicsburg, Pennsylvania, to Brandy Investors. 7. Substantial hardship to Calabrese, its employees and customers, including federal military procurement entities would occur if Brandy Investors were allowed to immediately eject Calabrese from the facilities. 8. The facilities are a substantial machine shop operation with heavy machinery and ongoing federal contracts in place that would require substantial time and investment to remove, and simply ejecting Calabrese and leaving the equipment and in-progress federal contracts in place would cause substantial hardship and dislocation to not only Calabrese but also to, its employees, and the United States Navy, among other customers. 9. Allowing Brandy Investors to in effect "shutter" Calabrese will halt substantial pending progress payments due on U.S. Navy contracts and halt $2.6 million in ongoing U.S. Navy contracts critical to aircraft launch and recovery operations. 10. Upon information and belief, while Brandy Investors has posted the property for lease or sale, no tenant is immediately available for this machine shop facility, which is 89,000 square feet. 11. Counsel for Brandy Investors does not concur in the relief sought in this Petition. WHEREFORE, Petitioner/Defendant Calabrese & Sons, Inc., respectfully prays that the Court will stay the execution and issue an Order providing for the orderly transfer of possession of the real property located at 406 Brandy Lane, Mechanicsburg, Pennsylvania. Date:- ' m"& \% Nvij\ MARTSON LAW OFFICES n By David A. Fitzsimons, Esquire Seth T. Mosebey, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant EXHIBIT A BRANDY INVESTORS, LP, Plaintiff V. CALABRESE & SONS, INC., and JOSEPH CALABRESE, Defendants IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 09-4977 CIVIL TERM IN RE: DEFENDANTS' PETITION FOR RELIEF FROM CONFESSION OF JUDGMENT BEFORE OLER, J. ORDER OF COURT AND NOW, this 60' day of November, 2009, upon consideration of Defendants' Petition for Relief from Confession of Judgment, and following oral argument held on November 4, 2009, the petition is denied. NOTHING in this order is intended to represent a ruling that Defendants are not entitled to a return of all or part of the security deposit in this case. BY THE COUR, v/. I /PC, J. esley Oler, r., J. John H. Pietrzak, Esq. 2331 Market Street Camp Hill, PA 17011 Attorney for Plaintiff Da id A. Fitzsimons, Esq. East High Street Carlisle, PA 17013 Attorneys for Defendants ?? ? 1, • , _u.:...A, A ??# gar ?:. ?.: or m EXHIBIT B OCT 212009 o?. BRANDY INVESTORS, LP, Respondent/Plaintiff V. : IN THE COURT OF COMMON PLEAS, : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION CALABRESE & SONS, INC., : NO. 094976 Petitioner/Defendants CONFESSION OF JUDGMENT IN EJECTMENT ORDER 2009, upon consideration of AND NOW, this q-41 day of & I - , maeat Defendant, Calabrese & Sons, Inc.'s Petition for Relief from Confession of Judgment in Ejectment and Plaintiff, Brandy Investors, LP's Answer thereto, as well as upon consideration of Plaintiffs Emergency Motion for Order of Possession and Defendants Answer thereto, if any, it is hereby ORDERED that Defendant Calabrese & Sons, Inc.'s Petition for Relief from Confession of Judgment in Ejectment is DENIED. It is further ORDERED that Plaintiff Brandy Investors, LP is granted immediate Possession of the property located at 406 Brandy Lane, Mechanicsburg, Pennsylvania 17055. M. L. Ebert, r., J. Counsel for Plaintiff: John H. Pietrzak, Esquire, Reager & Adler, P.C., 2331 Market St., Camp Hill, PA 17011 Counsel for Defendant: Seth T. Mosebey, Esq., Martson Law Offices, 10 East High Street, Carlisle, PA 17013 I, Joseph Calabrese, President of Calabrese & Sons, Ina, hereby verify that I am audwrized to sign this Verification and have reviewed the foregoing document and to the extent that the foregoing document contains facts sugpfied by or known to me, they are true and correct to the best of my knowledge. information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904, relating to unswom falsification to authorities. Calabrese & Sons, Inc. o Calabrese P.*%ASCk , ila1CaWm"nao.2fe&M &%w.Wr CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Defendants' Petition for Stay of Execution was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John H. Pietrzak, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorney for Plaintiff MARTSON LAW OFFICES By: M . Price Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: /? / ' D 7 RLO-CrFICE cr THE PRflT# fi ' 1089 KO l 18 AM 11: 52 CUMBC i - "41,, G COU"I PENNSY VA .ItA BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CALABRESE & SONS, INC., and JOSEPH CALABRESE, DEFENDANTS NO. 09-4976 CIVIL ORDER OF COURT AND NOW, this 16`" day of November, 2009, upon consideration of the Calabrese & Sons, Inc.'s Petition for Reconsideration, IT IS HEREBY ORDERED AND DIRECTED that the Petition for Reconsideration of this Court's Order dated November 9, 2009, is DENIED. By the Court, -L ?xl M. L. Ebert, Jr., J. John H. Pietrzak, Esquire Attorney for Plaintiff /Seth Mosebey, Esquire David Fitzsimons, Esquire Attorney for Defendants bas 3%-) 1 1ES eya t I 1 "- ?,, 0 1 REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzak(&ReaggAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: TwilliamsAReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors, LP BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS, Respondent/Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION CALABRESE & SONS, INC., NO. 09-4976 Petitioner/Defendants : CONFESSION OF JUDGMENT IN EJECTMENT RESPONDENT BRANDY INVESTORS. LP'S ANSWER TO PETITIONERS' PETITION FOR STAY OF EXECUTION AND NOW, comes the Respondent, Brandy Investors, LP, by and through its attorneys, Reager & Adler, P.C., and files the following Answer to Petitioner's Petition for Stay of Execution of Writ of Possession, and in support thereof, avers the following: 1. No response required. 2. Denied. The amount of the Confessed Judgment for monetary damages under Docket No. 09-4977 is final. Defendants Calabrese & Sons, Inc. and Joseph Calabrese filed a Petition for Relief of the confessed judgment for monetary damages. Their petition was denied by Judge Oler in an Order dated November 6, 2009, attached to Petitioner's Petition for Stay of Execution as Exhibit "A". Judge Oler did not open or strike the confessed judgment and his Order does not in any way call into question the amount of the confessed judgment. The reference to a return of the security deposit has no bearing on the amount of the confessed judgment under Docket No. 09-4977 and this allegation is raised by Petitioners only to cause confusion and delay execution of the writ of execution for that judgment. 3. Denied. Judge Oler's November 6, 2009 Order speaks for itself. There is nothing contained in the Order that "acknowledges that the amount at issue remains undetermined." Judge Older denied Petitioners' Petition for Relief and therefore the amount of the confessed judgment at Docket No. 09-4977 is not in question. Calabrese has made no demand upon Respondent Brandy Investors, LP ("Brandy") to account for the $70,025.00 security deposit held in escrow. To the extent that there is any question concerning these funds, they remain in escrow, but have no bearing upon the confessed judgment filed at 09-4977. 4. Admitted. By way of further answer, Brandy's motion pertained only to the Confession of Judgment for Possession at Docket No. 09-4976 before Judge Ebert and had no bearing whatsoever on the matter pending before Judge Oler at Docket No. 09-4977. 5. Admitted in part; Denied in part. Brandy admits that Judge Ebert issued the Order dated November 12, 2009 granting possession to Brandy. Brandy denies that such order was issued "without the opportunity for a hearing." Brandy's October 23, 2009 motion was filed merely in an effort to have Judge Ebert rule upon Calabrese & Sons, Inc.'s ("Calabrese") prior Petition for Relief from the Confession of Judgment for Possession under Docket No. 09-4976, filed on August 20, 2009, and which Brandy had Answered on September 14, 2009. The necessity to seek an immediate resolution of Calabrese's Petition for Relief was due to Calabrese's ongoing failure to pay any rent from August 1, 2009 to the present. Every month that Calabrese is able to delay Brandy from obtaining possession costs Brandy an additional $25,136.42 in rent and approximately $4,500 in pro-rated taxes and insurance. 6. Admitted. 7. Admitted, with clarification. While Brandy must acknowledge that eviction will necessarily entail hardship to Calabrese, such is unavoidable. Calabrese has by its conduct forfeited any right to remain in the leased premises. Calabrese defaulted on rent and other payments due under the Lease in a principal amount of $106,140.53, not including applicable late fees, which resulted in the filing of the instant confessions of judgment on July 22, 2009. Since that time, Calabrese has defaulted on a further $100,545.68 in rent payments and $34,464.34 for 2009 School Taxes paid by Brandy in August 2009. Calabrese apparently did not begin making plans for an "orderly transfer of possession" when it made the conscious decision to stop paying rent in August 2009. Any resultant hardship is Calabrese's fault alone and does not provide this Court with an "equitable basis" to stay the execution of the previously issued writ of possession. 8. Denied. Brandy is not seeking to "simply eject" Calabrese. This is a process that has been ongoing for over four months, during which time Calabrese has continued to default upon all payments due under the Lease while apparently not making any preparations for what it must have known was its eventual eviction. The fact that Calabrese has not been planning for its eventual eviction in order to minimize disruption to its employees and customers, shows only that Calabrese continues to act in an unreasonable manner. This does not provide an "equitable basis" for a stay of execution under Pa.R.C.P. 3162. 9. Brandy has insufficient information to either admit or deny this averment. It is sufficient to say that any disruption, while unfortunate, has been brought about by Calabrese's own actions in defaulting upon the obligations under the Lease. 10. Admitted. While Brandy does not have a tenant prepared to take immediate possession, this does not mitigate in favor of permitting Calabrese to remain in possession of the leased premises. Calabrese stopped paying any rent in August 2009. To permit Calabrese to remain in possession, at Brandy's significant expense, would be manifestly unfair. 11. Admitted. WHEREFORE, Respondent, Brandy Investors, LP, requests this Honorable Court to deny Petitioners' Petition for Stay of Execution of the Writ of Possession under 09-4976. NEW MATTER 12. Because Calabrese now seeks relief on equitable grounds, it is necessary to ensure that the Court has all of the facts relevant to such equitable considerations before it when considering Calabrese's Petition. 13. Calabrese has a long history of defaulting upon the payments due under its June 2006 Lease with Brandy. 14. In 2007, Calabrese defaulted on rent payments for July and August, as well as tax and insurance premium payments, in the total principal amount of $65,447.09. Brandy confessed judgment at Docket No. 07-4277 and collected a judgment totaling approximately $77,009.73, including late fees, interest and attorneys' fees on or around February 1, 2008. 15. In 2008, Brandy filed another confession of judgment against Calabrese, at Docket No. 08-2519. There, Calabrese defaulted upon February, March and April 2008 rent, as well as 4 taxes due in 2007 and 2008, insurance due in 2007 and amounts due for roof repairs, all in the total principal amount of $120,075.63, not including late fees, interest or attorneys' fees. Brandy ultimately withdrew this confession of judgment because the recession hit and Calabrese was paying rent during the pendancy of the appeal of the judgments. Calabrese never paid any of the amounts due under this confession of judgment, which was withdrawn, and they remain outstanding today. 16. The present Confessions of Judgment at 09-4976 (ejectment) and 09-4977 (monetary damages) are based upon Calabrese's failure to pay rent for February and June 2009, and taxes and insurance due in 2008 and 2009, in the total principal amount of $106,140.53, not including late fees, interest or attorneys' fees. 17. Since the current confessions of judgment were filed on July 22, 2009, Calabrese has defaulted on rent for August, September, October and November 2009 and taxes due in August 2009, for a total principal amount due of $135,010.02, not including late fees. 18. The total amount that Calabrese owes Brandy, not including the 2007 confession of judgment, which was collected upon, is $361,226.18. 19. Calabrese has given no indication that it intends to pay its rent when it becomes due on December 1, 2009, in the amount of $25,136.42. 20. As can be seen from the amounts above, Calabrese has a long and continuous history of failing to comply with the payment obligations under its Lease. This long history of non-payment has caused great, continuous and ongoing harm to Brandy, who has been forced to pay the mortgage, taxes and insurance on the building despite Calabrese's failure to live up to its obligations. 21. Brandy is in danger of losing the leased premises to the bank if it must continue to suffer a tenant who has shown its intention of remaining in the leased premises for as long as possible without paying rent. 22. Despite Calabrese's history of non-payment, on November 17, 2009, after this Court issued the Order granting possession to Brandy, Brandy offered to permit Calabrese to remain in the premises until January 31, 2009 (a date picked by Calabrese's attorney) in order to perform an "orderly wrap-up" of its operations. In exchange, Brandy required that Calabrese pay November and December 2009 and January 2010 rent, as well as $4,500 per month in pro-rated taxes and insurance, in advance, for a total of $88,909.26. Brandy requested an answer to this proposal by the end of business on November 19, 2009. Calabrese has not responded to this request. Counsel for Brandy communicated this offer to Calabrese's counsel by telephone and email on November 17, 2009. A true and correct copy of the November 17, 2009 email is attached hereto as Exhibit "A". 23. Calabrese has successfully delayed execution of the confession of judgment for possession of the leased premises for over four months while it has apparently not made any preparations to wrap up its business or vacate the premises. 24. At the "eleventh hour" Calabrese seeks the mercy of the Court to grant it a stay of execution of the writ of possession. Calabrese asks the Court to do equity while Calabrese itself has not acted in an equitable manner towards Brandy. Calabrese has not brought any new information to the Court's attention that would warrant a stay of execution that was not considered by both Judge Ebert and Judge Oler in their separate granting of Orders denying Calabrese's two Petitions for Relief. In both matters, Calabrese was found to not be entitled to relief. 25. Calabrese respectfully requests this Honorable Court to perform equity on behalf of Brandy and deny Calabrese's Petition for Stay of Execution. WHEREFORE, Respondent, Brandy Investors, LP, requests this Honorable Court to deny Petitioners' Petition for Stay of Execution of the Writ of Possession under 09-4976. Respectfully submitted, REAGER & ADLER, P.C. L)? ?- Date: November 24, 2009 Jo H. Pietrzak, Esquir A orney I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 Attorneys for Plaintiff, Brandy Investors, LP Page 1 of 1 John Pietrzak From: John Pietrzak Sent: Tuesday, November 17, 2009 3:18 PM To: 'David A. Fitzsimons' Cc: 'Seth T. Mosebey' Subject: Calabrese David, My clients have authorized me to forward the following proposal to postpone takeover of possession of the leased property until January 31, 2009, the date upon which you have indicated your client needs to wrap up his business operations in an orderly fashion. Brandy Investors will postpone having the Sheriff execute on the writ of possession until January 31, 2010 in exchange for advance payment of 3 months rent (November, December 2009 and January 2010) in the amount of $25,136.42 per month plus $4,500 per month pro rata for taxes and insurance, for a total of $88,909.26. The amount of $88,909.26 must be paid to Brandy Investors by wire transfer or cashier's check no later than close of business on Thursday, November 19, 2009. Brandy Investors will not agree to use the security deposit as part of this payment. Please advise if your client will agree to these terms. Thank you, John. John H. Pietrzak Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011-4642 (717) 763-1383 fax: (717) 730-7366 JPietrzak@RQagprAdlerT?C.com The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be any attorney-client communication and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message at once. Thank you. Reager & Adler, PC. Circular 230 Disclosure: Unless expressly stated otherwise, this communication is not intended to be used by any taxpayer and may not be used or relied upon by any taxpayer for the purpose of avoiding penalties that may be imposed under the Internal Revenue Code of 1986, as amended. No one, without our express prior written consent, may use any part of this communication to promote, market, or recommend to another party any tax-related transactions or matters that may be addressed herein. 11/24/2009 VERIFICATION I, Jack Jurasits, hereby verify that I am a Partner in Brandy Investors, LP, and, as such, I am authorized to verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: (IIO(l 29 By: 0" J its BRANDY INVESTORS, LP, Respondent/Plaintiff V. CALABRESE & SONS, INC., Petitioner/Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION : NO. 09-4976 : CONFESSION OF JUDGMENT IN EJECTMENT CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing Respondent's Answer to Petitioners Petition For Stay of Execution was served via certified U.S. mail, return-receipt requested, to the following: Seth T. Mosebey, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Dated: November 24, 2009 J sicaJ Shull _ F(L EE 0 r r 7 h 'o 1 20091110'1' 24 Psi 1: 32 BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CALABRESE & SONS, INC., and JOSEPH CALABRESE, : DEFENDANTS : NO. 09-4976 CIVIL ORDER OF COURT AND NOW, this 20th day of November, 2009, upon consideration of the Defendant's Petition for Stay of Execution, IT IS HEREBY ORDERED AND DIRECTED that the Plaintiff file an Answer to the Petition on or before November 24, 2009; IT IS FURTHER ORDERED AND DIRECTED that a status conference with counsel on the matter will be held at 4:00 p.m. Wednesday, November 25, 2009, in chambers of Courtroom No. 5 of the Cumberland County Courthouse. By the Court, ?v? U \ M. L. Ebert, Jr., J. ohn H. Pietrzak, Esquire Attorney for Plaintiff Seth Mosebey, Esquire ,,,R?vid Fitzsimons, Esquire Attorney for Defendants bas OF THE MAPY 2009 NOV 20 F x '2. 34 CUM ,- BRANDY INVESTORS, LP, Plaintiff V CALABRESE & SONS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION 09-4976 CIVIL TERM CONFESSION OF JUDGMENT IN EJECTMENT IN RE: STATUS CONFERENCE ORDER OF COURT AND NOW, this 25th day of November, 2009, after review of the defendant petition for stay of execution, the defendant's answer thereto, and argument by counsel in the matter, IT IS HEREBY ORDERED AND DIRECTED that the defendant's petition for stay of execution is denied. By the Court, ./ David A Seth T. For the John H . For the mtf Fitzsimons, Esquire Mosebey, Esquire Plaintiff Pietrzak, Esquire Defendant ~P~~ ~~~~ /a/t ~or ~~ ~~ M. L. Ebert, ., J. ref ' . -.,',;." 2Q~9 Q~C - I r~1 iQ~ 4 .- , , r 'L.', _ i--_