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HomeMy WebLinkAbout10-0084GEORGE GARDNER IN THE COURT OF COMMON PLEAS OF t/d/b/a Gardner Properties, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. 2010- 0$4 (.' ivi 1 Tem V. CIVIL ACTION-LAW SIDING WINDOW ?? WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants. NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court, your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 *ga.00 Pb 0TY CO 155 73 GEORGE GARDNER IN THE COURT OF COMMON PLEAS OF t/d/b/a Gardner Properties, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, N0.2010- 7 ov" I V. CIVIL ACTION-LAW SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants. COMPLAINT NOW, comes Plaintiff, George Gardner t/d/b/a Gardner Properties, by and through his attorneys O'BRIEN, BARIC & SCHERER, and files the within Complaint and, in support thereof, sets forth the following: 1. Plaintiff is an adult individual with an address of P.O. Box 38, Carlisle, Cumberland County, Pennsylvania 17013. 2. Plaintiff, at all times relevant hereto, has traded and done business as Gardner Properties. 3. Plaintiff owns certain real property known as 469 East North Street, Carlisle, Cumberland County, Pennsylvania 17013. 4. On or about March 21, 2005, Plaintiff entered into a certain Lease with Siding Window Warehouse Plus, Inc. ("SWWP") for a portion of that property known as 469 East North Street, Carlisle, Pennsylvania. A true and correct copy of the Lease is attached hereto as Exhibit "A" and is incorporated by reference. 5. The initial term of the Lease was for a period of ten (10) years commencing May 1, 2005 and ending April 30, 2015. 6. As provided for in the Lease, Defendant, Michael Palson, was required to sign a personal guaranty to secure payment of the Lease obligations of SWWP. A true and correct copy of the guaranty is attached hereto as Exhibit "B" and is incorporated by reference. 7. SWWP took possession of the leased premises on or about 8. On or about May 2, 2007, the parties entered into a First Amendment to Lease. A true and correct copy of the First Amendment to Lease is attached hereto as Exhibit "C" and is incorporated by reference. The First Amendment to Lease increased the size of the leased premises and amended the schedule of rent due. 9. On or about February 25, 2008, the parties entered into a Second Amendment to Lease. A true and correct copy of the Second Amendment to lease is attached hereto as Exhibit "D" and is incorporated by reference. The Second Amendment to Lease further increased the size of the leased premises and amended the schedule of rent due. 10. SWWP had defaulted in its obligations under the Lease, as amended, by failing to pay rent, utility charges, insurance and real estate taxes. 11. Michael Palson has defaulted under the terms of the Guaranty by failing to pay rent, utility charges, insurance and real estate taxes due under the Lease, as amended. 12. The past due amount presently owed is $106,303.15 as set forth on Exhibit "E" which is attached hereto and incorporated by reference. 13. Upon breach of the Lease, as amended, Plaintiff may demand payment of all amounts remaining due through the duration of the lease term. 14. The amount of rent remaining due through the end of the lease term, commencing January 1, 2010 is $323,169.40. 15. All conditions precedent to recovery under the Lease, as amended, and the Guaranty have been fulfilled. COUNTI BREACH OF CONTRACT GARDNER PROPERTIES v. SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON 16. Plaintiff incorporates paragraphs one through fifteen as though set forth at length. 17. SWWP has breached the Lease, as amended, by failing and refusing to pay rent, utility charges, real estate taxes and insurance. 18. As a direct and proximate result of said breach, Plaintiff is owed the sum of $429,472.55. 19. Defendant, Michael Palson, has breached the Guaranty by failing and refusing to pay rent, utility charges, real estate taxes and insurance due under the terms of the Lease, as amended. 20. As a direct and proximate result of said breach, Michael Palson owes Plaintiff the sum of $429,472.55. WHEREFORE, Plaintiff requests judgment be entered in its favor and against Defendants for the sum of $429,472.55 plus costs and expenses together with such further relief as the Court deems just and proper. Respectfully submitted, O' EN, BARI SC E David A. Baric, Esquire I.D. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 VERIFICATION The statements in the foregoing Complaint are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are true and correct to the best of my 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 falsifications to authorities. DATE: r Z 3 O Geor Gardner LEASE Lease made this 21 st day of March, 2005, by and between GEORGE F. GARDNER t/d/b/a GARDNER PROPERTIES, of Box 38, Carlisle, Cumberland County, Pennsylvania, (hereinafter called "Lessor") and Siding Window Warehouse Plus, Inc., a Pennsylvania Subchapter S. Corporation, with its and principal place of business located at 469 E. North Street, Carlisle, PA 17013, Cumberland County, (hereinafter called "Lessee") Premises: Lessor leases to Lessee and Lessee leases from Lessor those certain premises with improvemews described as follows: A. The rear part of a building located at 469 E. North Street, Carlisle, PA 17013, and located in the Boro of Carlisle. The Premises to be leased is 11,676 square feet as identified on Exhibit A. Lessor is allowed to use the double loading docks on a shared basis with other building tenants. B. Parking space for approximately 40 vehicles is included with the lease at the front portion and to the left side of the premises being leased, which is identified on Exhibit B. Areas C and F on the attached Exhibit shalt be for the exclusive use of Lessee. Area E on the attached Exhibit may be used by Lessee, but also by other Lessee's in the building, including the employees and clients of other Lessee's. C. Access to the utility areas must be maintained clear at all times to facilitate any maintenance and repairs without prior notice being given by Lessor. Lessee shall provide Lessor with a building entrance key(s) and access codes for any security alarm system installed by Lessor for utility and emergency access. Locks on all entrance doors and security alarm codes must not be changed without providing keys to Lessor prior to the change. D. Lessee will provide a certificate of insurance to Lessor, as required in paragraph 8.13, upon lease execution, and will provide 30 days notice of cancellation or change of insurance coverage. 1 EXHIBIT "A" Oct 08 09 11:55a Waymaker Company 717#245#9277 p.3 E. Lessee, at their own expense, with prior notification to the Lessor, and upon receiving approval from the Lessor, may make improvements to the premises. All reasonable requests shall not be withheld. All requests for structural changes to the building shall be made in writing with proper diagrams of the proposed changes. 2. Term: The initial term of this Lease shall be for ten (10) years, commencing on May 1, 2005, and ending on April 30, 2015, with an option for an additional ten-year term with rates and terms as described hereafter. Lessee shall provide written notice to Lessor at least ninety days from the end of the initial term of its intent to seek an additional ten-year term. Lessee shall have access to the property from April 1, 2005, for the purposes of completing any renovations to the property as approved by Lessor. Rental payments will be waived during the renovation period. However, Lessee shall be responsible for any utility expenses during the renovation period. Upon commencement of business operations, but no later than May 1, 2005, Lessee shall be pay to Lessor the amount of rent due as described in Section 3. Lessee must obtain all necessary occupancy permits or licenses before commencement of business operations. 3. Rent: Annual rent for each year of the original lease term will be as follows: May 1, 2005 - April 30, 2006 May 1, 2006 - April 30, 2007 May 1, 2007 - April 30, 2008 May 1, 2008 - April 30, 2009 526,271.00 ($2,189.25 per month) $32,109.00 ($2,675.75 per month) $32,692.80 ($2,724.40 per month) $33,276.60 ($2,773.05 per month) May 1, 2009 - April 30, 2010 $33,860.40 ($2,821.70 per month) May 1, 2010 - April 30, 2011 $34,444.20 ($2,870.35 per month) May 1, 2011- April 30, 2012 $35,028.00 ($2,919.00 per month) May 1, 2012 - April 30, 2013 $35,611.80 ($2,967.65 per month) May 1, 2013 - April 30, 2014 $36,195.60 ($3,016.30 per month) May 1, 2014 - April 30, 2015 $36,779.40 ($3,064.95 per month) 2 Oct 08 09 11:56a Waymaker Company 717#245#9277 p.4 Annual rent for each year of the option for an additional 10 year term: May 1, 2015 - April 30, 2016 May 1, 2016 - April 30, 2017 $37,363.20 ($3,113.60 per month) $37,947.00 ($3,162.25 per month) May 1, 2017 - April 30, 2018 $38,530.80 ($3,210.90 per month) May 1, 2018 -April 30, 2019 $39,114.60 ($3,259.55 per month) May 1, 2019 - April 30, 2020 $39,698.40 ($3,308.20 per month) May 1, 2020 - April 30, 2021 $40,282.20 ($3,356.85 per month) May 1, 2021 - April 30, 2022 $40,866.00 ($3,405.50 per month) May 1, 2022 - April 30, 2023 $41,449.80 ($3,454.15 per month) May 1, 2023 - April 30, 2024 May 1, 2024 - April 30, 2025 $42,033.60 ($3,502.80 per month) $42,617.40 ($3,551.45 per month) Rental payments shall be made payable to Gardner Properties, in advance on the first day of each month for that month's rental during the term of this Lease. All rental payments shall be made to Lessor at the address specified above. A security deposit equal to one month's rent will be paid at the signing of this lease. A late charge, equal to 5% of the monthly rent, will be assessed for any rent payment postmarked after the 5"h of the month for which it is due. 4. Additional Rent: All charges, costs and expenses that Lessee assumes or agrees to pay hereunder, together with all interest and penalties that may accrue thereon in the event of the failure of Lessee to pay those items, and all other damages, costs, expenses, and sums that Lessor may incur or that may become due by reason of any default of or failure by Lessee to comply with the terms and conditions of this Lease shall be deemed to be additional rent, and, in the event of non- payment when due. Lessor shall have all the rights and remedies and Lessee all the obligations as herein provided for failure to pay rent. 3 Oct 08 09 11:56a Waymaker Company 717#245#9277 p.5 5. Repairs and Maintenance: Lessee shall make all necessary interior repairs, in and about the Premises at its own expense, provided that Lessor, and not Lessee, shall be required to make any structural repairs. Lessee shall further use all reasonable precaution to prevent waste, damage or, injury to the Premises and shall maintain the Premises in the same manner as prior to the term of the Lease, including removal of ice and snow from walks used an access to the Premises. Lessee shall be responsible for all repairs and maintenance required to maintain the premises in habitable condition during the term of the lease. This includes such equipment as the heating and cooling systems, plumbing system, electrical system and fixtures, doors, windows, roof, floors, walls, ceilings, and every component inside or outside of the building included in the lease. An annual reserve budget will be prepared for the cost to replace the roof, pavement, sidewalks, etc. The will be added as an additional cost and will be provided to Lessee on an annual basis. 6. Taxes: Lessee shall pay its prorated share of all taxes assessed and levied against the demised premises by any taxing authority. The prorated share shall be the total annual tax payment levied multiplied by a factor the numerator of which is the total square footage leased. and the denominator of which is the total square footage for the building in which space is leased by Lessor. Lessor will provide Lessee with an annual estimate of the amount of the tax reimbursement, and Lessee agrees to include partial payments each month with the rent payment. Actual payments made will be reconciled at the end of each annual period, and Lessee agrees to make any payment necessary to fully reimburse the Lessor for the tax expense. Lessor agrees to refund any overpayment to Lessee. 7. Utilities: Lessee shall be solely liable for utility charges as they become due during the teen of the Lease, either on a prorated square footage basis or actual usage. Such charges shall include, but are not limited to, electric, natural gas, telephone, landscaping, snow removal, and trash removal. The Lessor shall make all necessary changes to the electrical service to provide Lessee with a separately metered service for the leased premises. 4 Oct 08 09 11:56a Waymaker Company 717#245#9277 p.6 8. Insurance: Lessee shall carry fire and extended coverage insurance on the premises in an amount sufficient to cover the Lessee's improvements and contents on, or within the premises. Lessee shall. name the Lessor as additional insured. A. Lessee shall further carry liability insurance, at its own expense, in the sum of $1,000,000.00 in case of injury or damage to one person and $1,000,000.00 in case of injury or damage to more than one person in the same accident or occurrence and shall name Lessor as additional insured. B. Lessee shall pay its prorated share of Lessor's general insurance expense for the premises. The prorated share shall be the total annual general insurance expense multiplied by a factor the numerator of which is the total square footage leased and the denominator of which is the total square footage for the building in which space is leased by Lessor. Lessor will provide Lessee with an annual estimate of the amount of the insurance reimbursement, and Lessee agrees to include partial payments each month with the rent payment. Actual payments made will be reconciled at the end of each annual period, and Lessee agrees to make any payment necessary to fully reimburse the Lessor for the insurance expense. Lessor agrees to refund any overpayment to Lessee. 9. Unlawful or Dangerous Activity: Lessee shall neither use nor occupy the premises or any part thereof for any unlawfiil business purpose nor operate or conduct its business in a manner constituting a nuisance of any kind. 10. Environmental Compliance: A. Lessee shall not cause or permit any "Hazardous Substance" (as defined in 42 U.S.C.A. Section 9601(14) (Supp. 1990) (as amended) to be used, stored, or generated on the Premises. B. Lessee shall not cause or permit the Release (as defined in 42 U.S.C.A. Section 9601(22) (as amended) of any Hazardous Substance, contaminant, pollutant, or petroleum in, on, or under the Premises or into any ditch, conduit, stream, storm sewer, or sanitary sewer connected thereto or located thereon. 5 Oct 08 09 11:56a Waymaker Company 717#245#9277 p.7 C. Lessee shall fully and timely comply with all applicable federal, state, and local statutes and regulations relating to protection of the environment, including, without limitation, 42 U.S.C.A. Sections 6991-6991i and 35 P. S. Section 6021.101, et seq. D. Promptly after termination of this Lease or when required by any applicable federal, state, or local regulatory authority, Lessee shall perform, at its sole expense, an environmental site assessment reasonably acceptable to Lessor to determine the extent, if any, of contamination of the premises and shall, at its sole expense, clean up, remove, and remedy (i) all Hazardous Substances in, on, or under the Premises, (ii) any petroleum in, on, or under the Premises in excess of allowable levels, and (iii) all contaminants and pollutants in, on, or under the Premises that create or threaten to create a substantial threat to human health or the environment and that are required to be removed, cleaned up, or remedied by any applicable federal, state, or local statute, regulation, standard, or order. This obligation does not apply to a Release of Hazardous Substances, pollutants, contaminants, or petroleum caused solely by the act or omission of a third party other than an employee or agent of Lessee or a person having a contractual relationship to Lessee, provided that Lessee can establish that it exercised due care to prevent such act or omission of a third party and to minimize the damages therefrom, as provided in 42 U.S.C. Section 9607(b)(3)(1988). E. Lessee shall indemnify and save harmless Lessor from and against any and all liabilities, damages, suits, penalties, judgments, and environmental cleanup, removal, response, assessment, or remediation cost arising from contamination of the Premises or Release of any Hazardous Substance, pollutant, contaminant or petroleum in, on, or under the Premises, by Lessee. Lessee shall indemnify Lessor for any and all loss of rentals or decrease in property values arising from Lessee's breach of Paragraph A of this Section. Lessee shall save Lessor harmless from and against any breach by Lessee of Paragraphs A, B, and C of this Section. 11. Indemnity: Lessee shall indemnify Lessor against all expenses, liabilities and claims of every kind, including reasonable counsel fees, by or on behalf of any person or entity arising out of either (1) a failure by Lessee to perform any of the terms or conditions of this Lease, and (2) any 6 Oct 08 09 11:57a tdaymaker Company 717#245#9277 p.8 injury or damage happening on or about the Premises caused by actions of Lessee, Lessee's employees, clients, customers. 12. Default or Breach: Each of the following events shall constitute a default or breach of this Lease by Lessee: A. If Lessee shall fail to pay Lessor any rent or additional rent when the same shall become due and shall not make the payment within five (5) days of such due date. All payments must be postmarked within five (5) days of the due date. B. If Lessee shall fail to perform or comply with any of the conditions of this Lease and if the non-performance shall continue for a period of thirty (30) days after notice thereof by Lessor to Lessee or, if the performance cannot be reasonably had within the thirty (30) days period, Lessee shall not in good faith have commenced performance within the thirty (3 0) day period and shall not diligently proceed to completion of performance. C. If Lessee shall vacate or abandon the Premises. D. If this Lease or the estate of Lessee hereunder shall be transferred to or shall pass to or devolve on any person or party, except in the manner herein permitted. E. If Lessee fails to take possession of the demised premises on the term commencement date or within. twenty (20) days after notice that the demised premises are available for occupancy, if the term commencement date is not fixed herein or shall be deferred as herein provided. F. If Lessee fails to obtain and hold a Certificate of Occupancy from Carlisle Boro or other required licenses. 13. Effect of Default: In the event of any default hereunder, as set forth in paragraph 12, the rights of Lessor shall be as follows: A. Lessor shall have the right to cancel and terminate this Lease, as well as all of the right, title, and interest, of Lessee hereunder, by giving to Lessee, not less than thirty (30) days notice of the cancellation and termination. On expiration of the time fixed in the notice, this Lease 7 Oct 08 09 11:57a Waymaker Company 717#245#9277 p.9 and the right, title, and interest, of Lessee hereunder, shall terminate in the same manner and with the same force and effect, except as to Lessee's liability, as if the date fixed in the notice of cancellation and termination were the end of the term herein originally detennined B. Lessor may elect, but shall not be obliged, to make any payment required of Lessee herein, or comply with any agreement, term, or condition required hereby, to be performed by Lessee, and Lessor shall have the right to enter the demised premises for the purpose of correcting or remedying any such default, and to remain until the default has been corrected or remedied. Any expenditure for the correction by Lessor shall not be deemed waived, or release the . default of Lessee, or the right of Lessor, to take any action as may be otherwise permissible hereunder in the case of any default. C. Lessor may enter the premises immediately and secure all personal property of Lessee. Lessor may then terminate the Lease on giving thirty (30) days' written notice of termination to Lessee. On termination, Lessor may recover from Lessee all damages resulting from the breach, including the cost of recovering the premises; and the worth of the balance of this Lease over the reasonable rental value of the premises for the remainder of the Lease term, which sum shall be immediately due Lessor from Lessee. D. Lessor may relet the premises, or any part thereof for any term, at the rent and on the terms as Lessor may choose. Lessor may make alterations and repairs to the premises. 14. Access to Premises: Lessee shall permit Lessor or its agents to enter the denused premises at all reasonable hours to inspect the premises or make repairs that Lessee may neglect or refuse to make in accordance with the provisions of this Lease, and also to show the premises to prospective buyers. At any time within one year prior to expiration of the term, Lessor may show the premises to persons wishing to rent the premises. Lessee shall, within four (4) months prior to expiration of the term, permit the usual notices of "For Rent" and "For Sale" to be placed on the demised premises and to remain thereon without hindrance and molestation. 8 Oct 08 09 11:57a Wa?jmaker Company 717#245#9277 p.10 15. Easements Agreements, or Encumbrances: The parties shall be bound by all existing easements, agreements, and encumbrances of record relating to the demised premises, and Lessor shall not be liable to Lessee for any damages resulting from any action taken by holder of an interest pursuant to the rights of that holder hereunder. 16. Quiet Enjoyment: Lessor warrants that Lessee shall be granted peaceable and quiet enjoyment of the demised premises free from any eviction or interference by Lessor if Lessee pays the rent and other charges provided herein, and otherwise fully and punctually performs the terms conditions imposed on Lessee. 17. Liability of Lessor: Lessee shall be in exclusive control and possession of the and Lessor shall not be liable for any injury or damage to any property or to any person on or about the premises, nor for any injury or damage to any property of Lessee. The provisions herein permitting Lessor to enter and inspect the premises are made to insure that Lessee is in compliance with the terms and conditions hereof and make repairs that Lessee has failed to make. Lessor shall not be liable to Lessee for any entry on the premises for inspection purposes. 18. Representations by Lessor: At the commencement of the term, Lessee shall accept the premises in existing condition and state of repair, and Lessee agrees that no representations, statements or warranties, express or implied, have been made by or on behalf of Lessor in respect thereto except as contained in the provisions of this Lease, and Lessor shall in no event be liable for any latent defects. 19. Waivers: The failure of Lessor to insist on a strict performance of any of the terms and conditions hereof shall be deemed a waiver of the rights or remedies that Lessor may have regarding that specific instance only, and shall not be deemed a waiver of any subsequent breach or default in any terms and conditions. Oct 08 09 11:58a Waymaker Company 717#245#9277 p.11 20. Notice: All notices to be given with respect to this Lease shall be in writing. Every notice shall be deemed to have been given at the time it shall be deposited in the United States mail. Nothing contained herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process. 21. Sublease and Assignment: Lessee may not sublet the premises in whole or in part without Lessor's consent, but the making of any such sublease shall not release Lessee from or otherwise affect in any manner, any of Lessee's obligations hereunder. Lessee shall not assign or transfer this Lease or any interest herein without the prior written consent of Lessor and consent to an assignment shall not be deemed to be consent to any subsequent assignment. Any such assignment without such consent shall be void, and shall, at the option of Lessor, terminate this lease. Notwithstanding the foregoing, Lessor hereby consents to the assignment of Lessee's interest herein to Lessee's senior secured lender or lenders. 22. Surrender of Possession. Lessee shall, on the last day of the term, or on earlier termination and forfeiture of the Lease, peaceably quietly surrender and deliver the demised premises to Lessor free of sub tenancies, including all buildings and additions, and improvements constructed or placed thereon by Lessor. Any personal property belonging to Lessee, if not removed at the termination or default, if Lessor shall so elect, shall be deemed abandoned and the property of Lessor without any payment or offset therefor. Lessor may remove such property from the demised premises and store it at the risk: and expense of Lessee if Lessor shall so elect. Lessee shall repair and restore all damage to the demised premises caused by the removal of any equipment or, any other personal property. 23. Remedies of Lessor. A. In the event of a breach or a threatened breach by Lessee of any of the terms or conditions hereof, Lessor shall have the right of injunction to restrain Lessee and the right to 10 Oct 08 09 11:58a Waymaker Company 717#245#9277 p.12 invoke any remedy allowed by law or in equity, as if the specific remedies of indemnity or reimbursement were not provided herein. B. The rights and remedies given to Lessor in this Lease are distinct, separate and cumulative, and no one of them, whether or not exercised by Lessor, shall be deemed to be in exclusion of any of the others herein, by law, or by equity provided. C. In all cases hereunder, and in any suit, action or proceeding of any kind between the parties, it shall be presumptive evidence of the fact of the existence of a charge being due if Lessor shall produce a bill notice, or certificate of any public official entitled to give that notice to the effect that such charge appears of record on the books in his office and has not been paid. D. No receipt of money from Lessee after default or cancellation of this Lease in any lawful manner shall (1) reinstate, continue, or extend the term or affect any notice given to Lessee, (2) operate as a waiver of the right of Lessor to enforce the payment of rent and additional rent then due or falling due, or (3) operate an a waiver of the right of Lessor to recover possession of the demised premises by proper suit election proceeding, other remedy. After (1) service of notice of termination and forfeiture as herein provided and the expiration of the time specified therein; (2) the commencement of any suit action, proceeding, or other remedy, or (3) final order or judgment for possession of the demised premises, Lessor may demand, receive and collect any monies due without in any manner affecting such notice, order or judgment. Any and all such monies so collected shall be deemed to be payment on account of the use and occupation of the demised premises or at the election of Lessor, on account of the liability of Lessee hereunder. 24. Personal Guarantee: As a condition of this lease, Lessee hereby agrees to sign a personal guarantee, which guarantees the terms and conditions of this Lease Agreement, as described further on attached Exhibit C. 11 Oct 08 09 11:59a 25 Waymaker Company 717#245#9277 p.13 Total Agreement Applicable to Successors: This Lease contains the entire agreement between the parties and cannot be changed or terminated except by a written instrument subsequently executed by the parties hereto. This Lease and the terms and conditions hereof apply to and are binding on the heirs, legal representatives, successors, and assigns of both parties. 26. Applicable Law: This Lease shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. 27. Time of the Essence. Time is of the essence in all provisions of this Lease. IN WITNESS WHEREOF, the parties have executed this Lease at Carlisle, Pennsylvania, the day and year first above written. WITNESS: WITNESS: for: George F. Gardner t/d/b/a Gardner Properties for Siding Window W ehouse Plus, Inc. «r- 12 Dec It 09 05:59p Waymaker Company 717#245#9277 p.2 EXHIBIT C Guaranty To induce George F. Gardner, d/b/a Gardner Properties, (the "Promissee"), to enter into a Lease Agreement dated March 21, 2005 with Michael J. Paulson (the "Guarantor"), which is executed and effective simultaneously with the execution and effectiveness of this Guaranty, Michael J. Paulson, the Guarantor hereby unconditionally and absolutely guarantees to the Promisee the performance by the Guarantor of each and every covenant, agreement and obligation of the party or parties under the Agreement including, without limitation, any payments to the Promisee (or, if applicable, his executors, administrators or personal or legal representatives or estate or legatees) of all sums due under the Agreement at the time such sums shall be due and payable. The obligation of Guarantor under this Guaranty shall be a direct and primary obligation, and the Promisee shall not be required to exhaust any of the Promisee's rights or remedies against the parry or parties, or any Guarantor prior to making any demand on or invoking any of the Promises rights and remedies against a Guarantor. In furtherance of the foregoing, Promisee may proceed, at one time or successively and without notice to any Guarantor, against any Guarantor, or against any one or more of them. In any action brought by Promisee against a Guarantor under this Guaranty, no Guarantor shall be entitled to, and shall not, plead as a defense that Promisee is not legally or equitably insolvent or is dissolved or liquidated, and each Guarantor covenants and agrees to pay to the Promisee all costs and expenses (including attorney's fees) incurred by Promisee in any such action. This Guaranty and all rights, obligations and liabilities arising hereunder shall be construed and enforced in accordance with the laws of the State of Pennsylvania. This Guaranty shall bind each Guarantor below and each Guarantor's respective successors and assigns, and shall inure to the benefit of Promisee and Promisee's executors, administrators, personal and legal representatives, and estate and legatees. IN WITNESS WHEREOF, this Guaranty has been duly executed by the Guarantor on r 3,?10 Date By: , ntor EXHIBIT "B" FIRST AMENDMENT TO LEASE THIS AMENDMENT to Lease is made as of the 2nd day of May, 2007, by and between GEORGE F. GARDNER, d/b/a Gardner Properties ("Lessor") and Siding Window Warehouse Plus, Inc. ("Lessee"), Background A. Lessor and Lessee entered into a certain Lease dated March 21, 2005, (the "Original Lease") with respect to premises located at the rear of 469 E. North Street, Carlisle Boro, Cumberland County, Pennsylvania (the "Lease"); B. Lessor and Lessee wish to amend the Original Lease in the manner set forth below to allow for the leasing of additional space in the Premises and to reflect an also known as narne change for Lessee. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the parties agree as follows to modify certain sections of the Original Lease: The "Lessee" Siding Window Warehouse Plus; Inc., as described in the Lease Agreement, is also known as SWWP, Inc. Section 1, Premises: A. Section LA - the following language is added: The front part of the building located at 469 E. North Street, Carlisle, PA 17013, consisting of 4,800 square feet as identified on Exhibit A-I marked as Areas I and 2. B. Section I.B - the following language replaces the existing language: Parking space for approximately 40 vehicles is included with the lease at the front portion and to the left side of the premises being leased, which are identified on Exhibit B. Areas C and F shall be for the exclusive use of Lessee. Areas A, B, and G may be used by Lessee, but also by other tenant's of the buildutg, including the employees and clients of other Lessee's. Section 2, Term The following language is added: The lease term for the additional space in Areas 1 and 2 shall run concurrently with the existing Lease term. Lessee shall have access to Areas I and 2 for the purposes of completing any renovations, as approved by Lessor. Rental payments will be waived during the renovation period. Upon commencement of business operations in Areas 1 and 2, but no later than July 1, 20071 Lessee shall pay to Lessor the amount of rent due as described in Section 3. Lessee must obtain all necessary occupancy permits or licenses before commencement of business operations in Areas I and 2. Lessee shall be responsible for any utility expenses during the renovation of Areas I and 2. EXHIBIT "C" Oct 08 09 11:59a Waymaker Company 717#245#9277 p.15 Section 3, Rent The following rental rate schedule replaces the existing rate schedule: Annual rent for each of the original lease term will be. as follows: May 1, 2005 - April 30, 2006 May 1, 2006 - April 30, 2007 May 1, 2007 -.Lune 30, 2007 July 1, 2007 -April 30, 2008 May 1, 2008 - April 30, 2009 May 1, 2009 -April 30, 2010 May 1, 2010 - April 30, 2011 May 1, 2011 -April 30, 2012 May 1, 2012 - April3 0, 2013 May 1, 2013 -April 30, 2014 May 1, 2014 - April 30, 2015 $26.271.00 ($2,189.25/month) $32,109.00 ($2,675.75/month) $5,448.80 (for two months n $2,724.40 month) $38,444.00 (for 10 months a, $3,844.40/month) $46,956.60 ($3;913.05/month) $47,780.40 ($3,981,70/month) $48,604.20 ($4,050.35/month) $49,428.00 ($4, l 19.00/month) $50,251.80 ($4,187.65 /month) $51,076.60 ($4,256.30/month) $51,899.40 ($4,324.95/month) Annual rent for each year of the option for an additional 10 year term May 1, 2015 - April 30, 2016 May 1. 2016 - April 30, 2017 May I, 2017 - April 30, 2018 May 1, 2018 - April 30, 2019 May 1, 2019 - April 30, 2020 May 1, 2020 - April 30, 2021 May I , 2021 - April 30, 2022 May 1, 2022 -April 30, 2023 May 1, 2023 - April 30, 2024 May 1, 2024 - April 30, 2025 $52,677.89 ($4,389.82/month) $53,468.05 ($4,455.67month) $54,270.07 ($4,522.51 month) $55,084.12 ($4,590.34/month) $55,910.38 ($4,659.20/month) $56,749.04 ($4,729.09/ nonth) $57,60028 (S4,800.02/month) $58,46428 (S4,872.02/month) 559,341.24 ($4,945.10/month) 560,231.36 (55,019.28/month) Except as modified hereby, the Lease is hereby ratified and confirmed. IN WITNESS WHEREOF, the parties, being so authorized to do, have set their respective hands and seals hereto the day and date first above written. WITNESS: S Vv Tit l i: WITNESS: r SECOND AMENDMENT TO LEASL THIS SECOND A-MENDNIENT to Lease is made as of the 25th day of February, 2008, by and between GEORGE F. GARDNER, d/b/a Gardner Properties ("Lessor') and Siding Window Warehouse Plus, Inc. (SWWP,Ine) ("Lessee"). Background A. Lessor and Lessee entered into a certain Lease dated March 21, 2005, (the "Original Lease") and a Lease First Amendment dated May 2, 2007, with respect to premises located at 469 E. North Street, Carlisle Boro. Cumberland County. Pennsylvania (the "Lease"); B. Lessor and Lessee v,ish to further amend the Lease in the manner set forth below to allow for the leasing of additional space in the Premises. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged.. and intending to be legally bound, the parties agree as follows to modify certain sections of the Lease: Section 1, Premises: A. Section LA - the following language is added: The lower level part of the building located at 469 E. North Street, Carlisle, PA 17013, consisting of 1,834 square feet as identified on Exhibit A-2 marked as Areas 1A, 2A, and 3A. Section 2, Tenn: The following language is added: The lease tern for the additional space in Areas IA, 2A and 3A shall run concurrently with the existing Lease term. Lessee shall have access to Areas IA, 2A and 3A for the purposes of Completing any renovations, as approved by Lessor. Rental payments for the additional space will be waived until February 28, 2008 during the renovation period. Effective March 1. 2008, Lessee shall pay to Lessor the amount of rent due as described in Section 3. Section 3. Rent The following rental rate schedule replaces the existing rate schedule: Annual rent for each of the original lease term v ill be as follows: May 1, 2005 - April 30, 2006 526,271.00 ($2,189.25hnonth) May 1, 2006 - April 30, 2007 532,109.00 ($2,675.75/month) M a v 1, 2007 - June 30, 2007 $ 5,448.80 (for 2 months @ $2_,724.40 month) July 1, 2007 - February 28, 2008 S30,755.52 (for 8 months a, $3,844.40/month) EXHIBIT "D" Oct 08 09 12:00p Waymaker Company 717#245#9277 p.17 March 1, 2008 -April 30, 2008 $ 8,559.96 May 1, 2008 - April 30, 2009 $58,367. 76 May 1, 2009 -- April 30, 2010 $58,951. 76 May 1, 2010 - April 30, 2011 $59,535. 76 Mav 1, 2011 - April 30, 2012 $60,119. 76 May 1, 2012 - April 30, 2013 $60,703. 76 May 1, 2013 - April 30, 2014 $61,287. 76 May 1, 2014 - April 30, 2015 $61,571. 76 (for 2 months C S4,279.98/month) ($4,863.98/month) ($=1.91.2.65/month) ($4,9561.31 /month) ($5,009.98/month) ($5,058.47/month) ($5,107.3 I/month) ($5,155.981'month) Annual rent for each year of the option for an additional 10 year tern: May I, 2015 -April 30, 2016 $62.799.84 ($5,233.32/month) May 1, 2016 - April 30, 2017 $63,741.84 ($5,31 1.821nonth) May 1, 2017 - April 30, 2018 $64,697.97 (`65,391.50 month) May t, 2018 - April 30, 2019 $65,668.44 ($5,472.70/month) May 1, 2019 - Apri130, 2020 `666,653.47 ($5.554.46./month) May 1, 2020 - April 30, 2021 $67.653. 27 ($5,637.77/month) May 1, 2021 - April 30, 2022 $68,668.07 ($5,722.34/month) May 1, 2022 - April 30, 2023 `669,698.09 ($5,808.17/month) May 1, 2023 - April 30, 2024 $70,7143.56 ($5,895.30/month) May 1, 2024 - April 30, 2025 $71.504.71 ($5,983.73/month) Except as modified hereby, the Lease is hereby ratified and conlu7ned. IN WITNESS WHEREOF, the parties, being so authorized to do, have set their respective hands and seals hereto the day and date first above written. WITNESS: is WITNESS: l_J L. Michael Reynolds for George F. Gardner, A/b/a Gardner Properties Dec 11 09 05:59p Waymaker Company 717#245#9277 p.3 GARDNER PROPERTIES P.O. SOX 38 CARLISLE, PA 17013 Siding Window Warehouse Plus Attn: Michael Palson 469 E North Street, Suite 1 Carlisle, PA 17013 Unpaid invoices due as of Dec 10, 2009 Rent Electric Gas Water RE Taxes Insurance Other Total Aug-08 662.85 109.85 772.70 Sep-08 885.45 102.35 41.40 5,935.95 25.00 6,990.15 Oct-08 591.94 531.27 83.64 1,206.85 Nov-08 4,863.98 488.81 671.81 6,024.60 Dec-08 4,863.98 658.90 1,592.03 41.40 7,156.31 Jan-09 4,863.98 740.48 1,743.06 7,347.52 Feb-09 4,863.98 937.41 1,483.71 7,285.10 Mar-09 4,863.98 525.67 1,166.87 41.40 6,597.92 Apr-09 4,863.98 682.97 500.49 2,434.17 1,678.00 10,159.61 May-09 4,912.65 584.77 70.43 5,567.85 Jun-09 4,912.65 633.49 17.46 41.40 5,605.00 Jul-09 4,912.65 721.89 17.46 5,652.00 Aug-09 4,912.65 745.20 17.46 6,163.96 1,706.55 13,545.82 Sep-09 4,912.65 728.77 17.46 90.52 5,749.40 Oct-09 4,912.65 611.02 149.55 5,673.22 Nov-09 4,912.65 711.76 432.04 6,056.45 Dec-09 4,912.65 4,912.65 Total 69,077.02 10,850.71 8,175.67 256.12 14,534.08 3,384.55 25.00 106,303.15 EXHIBIT "E" SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff 0F CEOF -HE ?-EFiPF ti 1 /'•P- 7 jsr Jody S Smith Chief Deputy Edward L Schorpp Solicitor z? FEB - I Pi`; L: a? C Geroge Gardner t/d/b/a Gardner Properties Case Number vs. 2010-84 Siding Window Warehouse Plus, Inc. SHERIFF'S RETURN OF SERVICE 01/1912010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Siding Window Warehouse Plus, Inc., but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Complaint and Notice according to law. 01/19/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Michael Palson, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Complaint and Notice according to law. 01/19/2010 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that he made a diligent search and inquiry for the within named defendant to wit: Michael Palson, but was unable to locate him in his bailiwick. He therefore returns the within Complaint and Notice as not found as to the defendant Michael Palson. The Carlisle Postmaster has advised the defendant has moved and left no forwarding address. 01/19/2010 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that he made a diligent search and inquiry for the within named defendant to wit: Siding Window Warehouse Plus, Inc., but was unable to locate them in his bailiwick. He therefore returns the within Complaint and Notice as not found as to the defendant Siding Window Warehouse Plus, Inc. The Carlisle Postmaster has advised the defendant has moved and left no forwarding address. 01/26/2010 Dauphin County Return: And now January 26, 2010 at 1150 hours I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Siding Window Warehouse Plus Inc. by making known unto Michael Palson, President adult in charge at 117 Sawgrass Drive, Blue Bell, PA 19422 its contents and at the same time handing to her personally the said true and correct copy of the same. 01/28/2010 11:50 AM - Dauphin County Return: And now January 26, 2010 at 1150 hours I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Michael Palson by making known unto himself personally, at 651 Alricks Street, Harrisburg, PA 17110 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $68.84 January 28, 2010 ici GountySuite Sherif. ieieosofi. Inc. SO AN RS, ROTVNY ANDERSON, SHERIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GEORGE GARDNER NO.: 2010-084 t/d/b/a Gardner Properties Plaintiff v, Cl:VII. ACTION -LAW SIDING WII~TDOW WAREHOUSE PLUS, INC., and . MICHAEL PALSON, Defendants `' - ~' ae ~ ~, ~; ~-:, .- ' ~ rci~ -~ NOTICE TO PLEAD ~ _= ;~ ~~ To: George Gardner t/d/b/a Gardner Properties =~ rn David A. Baric, Esquire == •• Baric & Scherer = ~... 19 West South Street Carlisle, PA 17013 You are hereby notified to file a written response to the New Matter that was filed on March 19, 2010 within twenty (20) days from service hereof or a judgment may be entered against you. By: Sup. Ct. I.D. No. 87371 200 S. Spring Garden St., Suite 11 Carlisle, PA 17013 (717) 243-7135 Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GEORGE GARDNER NO.: 2010-084 t/d/6/a Gardner Properties Plaintiff v. CIVIL ACTION -LAW SIDING WIl~TDOW WAREHOUSE PLUS, INC., and MICHAEL PALSON, Defendants ANSWER TO COMPLAINT WITH NEW MATTER AND NOW, this day of March, 2010, comes the Defendants, Siding Window Wazehouse Plus, Inc. and Michael Palson, by and through their attorney, Andrew H. Shaw, Esquire and file the instant Answer and in support thereof states as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part. It is admitted that Siding Window Warehouse Plus, Inc. took possession of the premises after the execution of the lease. Plaintiff has failed to plead a specific date, and therefore Defendant cannot fully admit to the averments in Paragraph 7 of Plaintiff s Complaint. 1 8. Admitted in part and denied in part. It is admitted that Plaintiff and Defendant Siding Window Warehouse Plus, Inc. executed the First Amendment To Lease. It is further admitted that the First Amendment to Lease increased the size of the leased premises and amended the schedule of rent due. It is denied that Defendant Michael Palson executed the First Amendment to Lease in his individual capacity as a guarantor. Strict proof thereof is demanded at trial. 9. Admitted in part and denied in part. It is admitted that Plaintiff and Defendant Siding Window Warehouse Plus, Inc. executed the Second Amendment To Lease. It is further admitted that the Second Amendment to Lease increased the size of the leased premises and amended the schedule of rent due. It is denied that Defendant Michael Palson executed the Second Amendment to Lease in his individual capacity as a guarantor. Strict proof thereof is demanded at trial. 10. Paragraph 10 of Plaintiffs Complaint is a legal conclusion to which no response is required. To the extent a response is required, it is denied that Defendant Siding Window Warehouse Plus, Inc. defaulted in its obligations under the Lease as stated in Paragraph 10 of Plaintiff s Complaint. 11. Paragraph 10 of Plaintiffs Complaint is a legal conclusion to which no response is required. To the extent a response is required, it is denied that Defendant Michael Palson defaulted in his obligations under the Lease as stated in Paragraph 10 of Plaintiff's Complaint. 12. Denied. It is specifically denied that the past due amount presently owed is $106,303.15. Strict proof thereof is demanded at trial. 13. Denied as stated. The Lease speaks for itself. 2 14. Denied. It is specifically denied that the amount of rent remaining due through the end of the lease term, commencing January 1, 2010 is $323,169.40. 15. Paragraph 15 of Plaintiff's Complaint is a legal conclusion to which no response is required. 16. No response required. 17. Paragraph 17 of Plaintiff's Complaint is a legal conclusion to which no response is required. 18. Paragraph 18 of Plaintiff's Complaint is a legal conclusion to which no response is required. 19. Paragraph 19 of Plaintiff's Complaint is a legal conclusion to which no response is required. 20. Paragraph 20 of Plaintiff's Complaint is a legal conclusion to which no response is required. WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Count I of Plaintiff s Complaint. NEW MATTER 21. Paragraphs 1 through 20 are incorporated herein by reference as though set forth in full. 22. Plaintiffs' Complaint fails to state any cause of action upon which relief may be granted. 23. Plaintiffs' claims are barred by the doctrine of unclean hands. 3 24. To the extent that Plaintiffs have suffered any damage, said damage was caused by Plaintiffs, and not by the action or inaction of Defendants. 25. Plaintiffs' claims are barred because they have failed to mitigate any damages they may have suffered. 26. Plaintiffs' claims are barred by the doctrine of estoppel. 27. Plaintiffs' claims are barred by the doctrine of laches. 28. Plaintiffs' claims are barred by the defense of accord and satisfaction. 29. Plaintiffs' claims are barred by the statute of fraud. 30. Plaintiffs' claims are barred by the doctrine of consent. 31. Plaintiffs' claims are barred by the doctrine of duress. 32. Plaintiffs' claims are barred by the doctrine of release. 33. Plaintiffs' claims are barred by the doctrine of waiver. 34. Plaintiffs' claims are barred by the doctrine of res judicata. 35. Plaintiffs' claims are barred by the doctrine of collateral estoppel. 36. Plaintiff's claims are barred against Micheal Palson, individually, as any claims under the lease were dismissed through the Discharge of bankruptcy proceedings for Michael Jay Palson and Angela Sue Palson docketed at No: 1:07-bk-00033. 4 WHEREFORE, Defendant respectfully requests this Honorable Court to rule in favor of Defendant and dismiss Plaintiff's Complaint. Respectfully Date: ~- By: ~~~- ~a A4fdrew lyl. Shaw, Enquire Pa. Supreme Ct. I.D. No. 87371 200 S. Spring Garden Street Suite 11 Carlisle, PA 17013 717-243-7135 Attorney for Defendant VERIFICATION I, Michael Palson, Presdient of Siding Window Warehouse Plus, Inc., verify that the statements made in this Answer is true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: ~ `' ~ ~~--~ ~~p ,; _~ ~,~~ Y Michael Palson, President of Siding Window Warehouse Plus, Inc. VERIFICATION I, Michael Palson, verify that the statements made in this Answer is true and correct. understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: ~ ~ ~ ~ ~! Q Michael Palson CERTIFICATE OF SERVICE I, Andrew H. Shaw, Esquire, do hereby certify that a true and correct copy of the following document, Answer with New Matter, was served this date on the below named, by facsimile and by placing same in the United States mail, first-class, postage prepaid thereon, addressed as follows: David A. Baric, Esquire Baric & Scherer 19 West South Street Carlisle, PA 17013 Attorney for Plaintiff Date: ~_ ~ ~r. ~/~ GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, V. SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM CIVIL ACTION-LAW STIPULATION TO ENTRY OF JUDGMENT C-) :3 rp Y ?rn ( W W NOW. come the parties to this matter by and through their attorneys of record and agree as follows: Plaintiff, George Gardner t/d/b/a Gardner Properties has instituted the above action against the Defendants. 2. The parties agree to entry of judgment against Defendant, Siding Window Warehouse Plus, Inc. for the sum of $429,472.55. David A. Baric, Esquire Baric Scherer 19 'West South Street Carlisle. PA 17013 (717) 249-6873 Attorney for Plaintiff Attorney for Defendants 414.00 PD ATT"? 01 17041 P_* 01 47839 200 South Spring Garden Street Suite 11 Carlisle, P.A 17013 (717) 243-7135 SEP 0 8 Zola GEORGE GARDNER IN THE COURT OF COMMON PLEAS OF t/d/b/a Gardner Properties, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. 2010- 084 CIVIL TERM c 'C3 E7. t CIVIL ACTION-LAW SIDING WINDOW `- WAREHOUSE PLUS, INC. y C co and MICHAEL PALSON, Defendants. % ORDER AND NOW, this 8 day of S tfR§-4 V , 2010, upon the Stipulation to Entry of Judgment it is ordered that judgment be entered with the Prothonotary of Cumberland County against the Defendant, Siding Window Warehouse Plus, Inc. and in favor of the Plaintiff, George Gardner t/d/b/a Gardner Properties in the amount of $429,472.55. BY THE COURT, ?Vl " ?A A - J. \A ? David A. Baric, Esquire Baric Scherer 19 West South Street Carlisle, Pennsylvania 17013 ./Andrew H. Shaw, Esquire 200 South Spring Garden Street, Suite 11 Carlisle, Pennsylvania 17013 1.:0 [ F-S r'Y -C L' LL GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, V. SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM CIVIL ACTION-LAW c ro? mCD zM x? cf.)r- rx ?a = c:? z s ?v N w -Q r CDP co C-1 -n -urn :Ua) °Q C-n C) zn C.)M CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) A notice of intent to serve the subpoena with a copy of the attached subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) No objection to the subpoena has been received; and, (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve. David A. Baric, Esquire Date: GEORGE GARDNER IN THE COURT OF COMMON PLEAS OF t/d/b/a Gardner Properties, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. 2010- 084 CIVIL TERM V. : CIVIL ACTION-LAW SIDING WINDOW WAREHOUSE PLUS, INC. : and MICHAEL PALSON, Defendants. NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff, George Gardner t/d/b/a Gardner Properties, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Date: March 9, 2011 David A. Baric, Esquire Baric Scherer 19 West South Street Carlisle, PA 17013 (717) 249-6873 GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, V. SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM CIVIL ACTION-LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: SWWP, Inc. c/o Andrew H. Shaw, Esquire 200 South Spring Garden Street, Suite I 1 Carlisle, Pennsylvania 17013 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: All corporate records for Siding Window Warehouse Plus, Inc. 2. All corporate records for SWWP, Inc. 3. All accounting records for Siding Window Warehouse Plus, Inc. for the period May 1, 2005 to the present. 4. All accounting records for SWWP, Inc. for the period May 1, 2005 to the present. 5. Any and all documents evidencing claims against, and accounts receivable from others for Siding Windows Warehouse Plus, Inc. and/or SWWP, Inc. currently outstanding. 6. All federal tax returns filed by Siding Window Warehouse Plus, Inc. and SWWP, Inc. during the period May 1, 2005 to the present. 7. The most recent bank statements for any and all accounts of Siding Windows Warehouse Plus, Inc. or SWWP, Inc. 8. Warehouse, Inc. Any register containing the name(s) of any shareholders of Siding Windows You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the following address: Baric Scherer 19 West South Street Carlisle, PA 17013 c/o David A. Baric, Esquire You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: David A. Baric, Esquire I.D. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff BY THE COURT, DATE: BY: Prothonotary SEAL OF THE COURT GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, : V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM CIVIL ACTION-LAW SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants. NOTICE TO: SWWP, Inc. c/o Andrew H. Shaw, Esquire 200 South Spring Garden Street, Suite 11 Carlisle, Pennsylvania 17013 You are required to complete the following Certificate of Compliance when producing documents or things pursuant to Subpoena. GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM CIVIL ACTION-LAW SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, ; Defendants. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, , certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the subpoena issued on have been produced. Date: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GEORGE GARDNER NO.: 2010-084 t/d/b/a Gardner Properties Plaintiff V. CIVIL ACTION - LAW -vim - -, SIDING WINDOW WAREHOUSE ?r' ... -0 PLUS, INC., and , - ED MICHAEL PALSON, C-) 'Z?c o e --n Defendants cz) `?: Fi SWWP, INC.'S MOTION TO QUASH SUBPOENA AND FOR PROTECTIVE ORDER SWWP, Inc., by its undersigned counsel, Andrew H. Shaw, respectfully move this Court, pursuant to Pa.R.C.P. No. 4012 for a Protective Order as follows: 1. Plaintiff filed a Complaint against Siding Window Warehouse Plus, Inc. and Michael Palson on January 4, 2010, seeking enforcement of a lease entered into between the parties. 2. On or about March 19, 2010, Defendant filed an Answer with New Matter. 3. On or about April 22, 2010, Plaintiff filed a Reply to New Matter. 4. On or about September 3, 2010, Plaintiff filed a Praecipe to Discontinue as to the Defendant Micheal Palson. 5. The remaining parties subsequently executed a Stipulation To Entry of Judgment, which was reduced to an Order of Court, signed by the Honorable M.L. Ebert, Jr. on September 8, 2010. A copy of the Stipulation and Order is attached hereto and incorporated by reference as Exhibit A. 6. On or about March 29, 2011, Plaintiff mailed via certified mail to SWWP, Inc. a subpoena duces tecum pursuant to Pa.R.C.P. No. 4009.22. A copy of the Supoena is attached hereto and incorporated by reference as Exhibit B. 7. SWWP, Inc. and Siding Windows Warehouse Plus, Inc. are separate and distinct corporations. 8. SWWP, Inc. is not a party to this matter. 9. Said discovery request from Plaintiff represents an unreasonable annoyance, embarrassment, oppression, burden and expense to SWWP, Inc. in that: a. Plaintiff has a judgment against Defendant Siding Window Warehouse Plus, Inc.; b. SWWP, Inc. is a separate and distinct entity from Siding Window Warehouse Plus, Inc.; and c. Any information provided by SWWP, Inc. will not aid in the execution of the judgment against Siding Window Warehouse Plus, Inc. 10. Further, Plaintiff has filed a Praecipe For Writ of Summons against SWWP, Inc. at Docket No. 11-2993. A copy of the Writ is attached hereto and incorporated by reference as Exhibit C. 11. It is assumed that any cause of action surrounding the matter against SWWP, Inc. is somehow related to the instant litigation. 12. Plaintiff would not be permitted to make this same discovery request against SWWP, Inc. in the matter docketed at 11-2993, and it is assumed that Plaintiff is using this means to engage in discovery from which it would otherwise be prohibited. 13. Counsel for the Plaintiff has been contacted and does not concur in this request. 14. The Honorable M.L. Ebert, Jr. was previously assigned other matters related to this matter. WHEREFORE, SWWP, Inc. respectfully requests that this Honorable Court quash the subpoena served upon SWWP, Inc., enter a protective order in favor of SWWP, Inc. related to this matter and stay the execution on the subpoena until this Court has made a final ruling on this Motion. Respectfully Date: -- / l 0/ ? By: Andrew IT Shaw, Esquire Pa. Supreme Ct. I.D. No. 87371 200 S. Spring Garden Street Suite I1 Carlisle, PA 17013 717-243-7135 Attorney for SWWP, Inc. SEP 0 8 ?U10 GEORGE GARDNER IN THE COURT OF COMMON PLEAS OF t/d/b/a Gardner Properties, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. 2010- 084 CIVIL TERM V. CIVIL ACTION-LAW SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants. n r r ORDER AND NOW, this g4l` - day of , 2010, upon the Stipulation to Entry of Judgment it is ordered that judgment be entered with the Prothonotary of Cumberland County against the Defendant, Siding Window Warehouse Plus, Inc. and in favor of the Plaintiff, George Gardner t/d/b/a Gardner Properties in the amount of $429,472.55. BY THE COURT, J. David A. Baric, Esquire Baric Scherer 19 West South Street Carlisle, Pennsylvania 17013 Andrew H. Shaw, Esquire 200 South Spring Garden Street, Suite 11 Carlisle, Pennsylvania 17013 E XHIBIT E GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM V. SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants. CIVIL ACTION-LAW STIPULATION TO ENTRY OF JUDGMENT NOW, come the parties to this matter by and through their attorneys of record and agree as follows: 1. Plaintiff, George Gardner t/d/b/a Gardner Properties has instituted the above action against the Defendants. 2. The parties agree to entry of judgment against Defendant, Siding Window Warehouse Plus, Inc. for the sum of $429,472.55. David A. Baric, Esquire Baric Scherer 19 West South Street Carlisle, PA 17013 (717) 249-6873 Attorney for Plaintiff Attorney for Defendants 200 South Spring Garden Street Suite 11 Carlisle, PA 17013 (717) 243-7135 GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, V. SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM CIVIL ACTION-LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: SWWP, Inc. c/o Andrew H. Shaw, Esquire 200 South Spring Garden Street, Suite 11 Carlisle, Pennsylvania 17013 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: All corporate records for Siding Window Warehouse Plus, Inc. 2. All corporate records for SWWP, Inc. 3. All accounting records for Siding Window Warehouse Plus, Inc. for the period May 1, 2005 to the present. 4. All accounting records for SWWP, Inc. for the period May 1, 2005 to the present. 5. Any and all documents evidencing claims against, and accounts receivable from others for Siding Windows Warehouse Plus, Inc. and/or SWWP, Inc. currently outstanding. 6. All federal tax returns filed by Siding Window Warehouse Plus, Inc. and SWWP, Inc. during the period May 1, 2005 to the present. 7. The most recent bank statements for any and all accounts of Siding Windows Warehouse Plus, Inc. or SWWP, Inc. 8. Any register containing the name(s) of any shareholders of Siding Windows Warehouse, Inc. EXHIBIT i __a_ You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the following address: Baric Scherer 19 West South Street Carlisle, PA 17013 c/o David A. Baric, Esquire You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: David A. Baric, Esquire I.D. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff BY THE COURT, DATE: Prothonotary SEAT: OF THE COURT Prom SWWP Inc. )Plaintiffs) & A,ddmss(es) George Gardner t/d/b/a Gardner Properties . P.O. Box 38 . Carlisle, Pennsylvania 17013 1 h t T C i Case No. erm VS. Civil Action Defendant(s) & Address(es) SWWP, Inc. . 651 Alricks Street ; Harrfsburg, Pennsylvania 17110 1Wrn PRAECIPE FOR WRIT OF SUMMONS ? 7- TO THE PROTHONOTARY/CLERK. OF SAID COURT; issue summons it tJte above case Writ of Summons shall be issued and forwarded to A 0--- 1-4 A6 a ice Date ; March 9, 2011 Signatwe of A.ttoz ey PrintName• David A. Beiric, Esquire Address: 19 West South Street Carlisle, PA 17413 Telephone #: (717) 249-6873 Supreme Court ID Number: U853 at 3/18/2011 10:32 AM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION WRIT OF SUMMONS TO: SWWP, Inc. YOU ARE NOTIFJED TEAT TIE ABOVE-NAMED PLAIIMFF(S) IIAS/HAVE CO1vNWNCED AN ACTION AGAINST YOU. i? b , &L L L thpnotarylc rk, 'vii Division I)fyrl Date:' by Deputy to 2437872 EXHIBIT to ? I`"e c1; Co" VROM RECORD ?:. rh0h4l.kOft wdo /at 1" hand -;dCOOK14GO** Pw 002/0021 CERTIFICATE OF SERVICE I, Andrew H. Shaw, Esquire, do hereby certify that a true and correct copy of the following document, SWWP, Inc.'s Motion To Quash Supboena And For Protective Order, was served this date on the below named, by facsimile and by placing same in the United States mail, first-class, postage prepaid thereon, addressed as follows: David A. Baric, Esquire Baric & Scherer 19 West South Street Carlisle, PA 17013 Attorney for Plaintiff Date: ?`-- Andrew H. Shaw, Esquire IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GEORGE GARDNER t/d/b/a Gardner Properties Plaintiff V. SIDING WINDOW WAREHOUSE PLUS, INC., and MICHAEL PALSON, Defendants NO.: 2010-084 c CIVIL ACTION - L . -<p v Wit-? ,n a i .. - RULE TO SHOW CAUSE Sk 1 AND NOW, this __?y day of 2011, upon consideration of SWWP, Inc.'s Motion To Quash Supboena and for Protective Order, IT IS HEREBY ORDERED AND DIRECTED THAT: 1. A rule is issued upon Plaintiff, George Gardner t/d/b/a Gardner Properties, to show cause why the Motion To Quash Supboena and for Protective Order should not be granted. 2. Plaintiff shall file an Answer on or before M NN , 2011. 3. If no Answer to the Rule to Show Cause is filed by the required date, the relief requested by SWWP, Inc. shall be granted upon the Court's receipt of a Petition requesting Rule be made Absolute. If Plaintiff files an Answer to this Rule to Show Cause, and the Answer raises disputed issues of material fact, an evidentiary hearing or argument will then be scheduled. Z- 4. The Prothonotary is directed to forward said Answer to this Court. 5. The subpoena issued to SWWP, Inc. is hereby stayed pending disposition of this motion. Distribution: Andrew H. Shaw, Esquire, attorney for SWWP, Inc. 0 Mo David A. Baric, Esquire, attorney for Plaintiff ?? /it 0Z& BY THE COURT: GEORGE GARDNER, t/d/b/a Gardner Properties, PLAINTIFF V. SIDING WINDOW WAREHOUSE PLUS, INC., and MICHAEL PALSON, DEFENDANTS IN THE COURT OF COMMON PLEAS OF ., CUMBERLAND COUNTY, PENNSNTVPLIA: Z rn z? r- c= r -`ern xs r*a C:) o u C-; c w c, M > NO. 10-084 CIVIL ?` IN RE: MOTION TO QUASH SUBPOENA AND FOR PROTECTIVE ORDER ORDER OF COURT AND NOW, this 22nd day of July, 2011, upon consideration of the Defendant's Motion to Quash Subpoena and for Protective Order and the Answer filed by the Plaintiff, IT IS HEREBY ORDERED AND DIRECTED that argument in the matter will be held on Thursday, August 11, 2011, at 8:30 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. avid Baric, Esquire Attorney for Plaintiff drew Shaw, Esquire Attorney for Defendant bas 4 By the Court, M. L. Ebert, Jr., J. • `dam 1? GEORGE GARDNER, IN THE COURT OF COMMON PLEAS OF t/d/b/a Gardner Properties, CUMBERLAND COUNTY, PENNSYLVA NIA PLAINTIFF C= ~ V ?cm - x• _a{ -p, . -u, z SIDING WINDOW WAREHOUSE -<> -' ' ' PLUS, INC., and s> X20 -, (7) MICHAEL PALSON, 7) DEFENDANTS NO. 10-084 CIVIL' tv IN RE: MOTION TO QUASH SUBPOENA AND FOR PROTECTIVE ORDER ORDER OF COURT AND NOW, this 11th day of August, 2011, upon consideration of the Defendant's Motion to Quash Subpoena and for Protective Order, the Plaintiff's Answer thereto and after oral argument, IT IS HEREBY ORDERED AND DIRECTED that the Defendant's Motion to Quash Subpoena and for Protective Order of Court is DENIED. SWWP, Inc„ shall produce the information requested by the Subpoena Duces Tecum previously served upon them. All information provided by SWWP, Inc. shall be maintained by the Plaintiff as confidential and not disseminated to any other person or entity without further Order of Court. By the Court, M. L. Ebert, Jr., J. David Baric, Esquire Attorney for Plaintiff Andrew Shaw, Esquire Attorney for Defendant MWj 6pissuIu00 bas GEORGE GARDNER : IN THE COURT OF COMMON PLEAS OF tld/b/a Gardner Properties, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, . NO. 2010- 084 CIVIL TERM • c V. : r-) ~ r=- • CIVIL ACTION-LAW . zrn o .,'~^ao ~~r c ~ SIDING WINDOW ~ --+o ~ WAREHOUSE PLUS, INC. and MICHAEL PALSON, -o 5-' Defendants. : c,) ~r~ w MOTION TO COMPEL NOW, comes Plaintiff, George Gardner, by and through his attorney, David A. Baric, Esquire of BARIC SCHERER LLC, and files within Motion to Compel and, in support thereof, sets forth the following: 1. On or about December 15, 2010, Plaintiff served Discovery In Aid Of Execution Request For Production Of Documents upon counsel for the Defendants. A true and correct copy of Plaintiffs Discovery In Aid of Execution Request For Production Of Documents is attached hereto as Exhibit "A" and is incorporated. 2. By correspondence dated January 25, 2011, counsel for Plaintiff reminded counsel for Defendant that responses were past due. A true and correct copy of this correspondence is attached as Exhibit "B." 3. On or about February 25, 2011, counsel for the Defendant provided to undersigned counsel a partial response to Plaintiffs Request For Production Of Documents. A true and correct copy of the partial response is attached as Exhibit "C." 4. The Honorable M.L. Ebert, Jr. has previously ruled in this case. 5. Defendant has failed to provide full and complete production of the records requested. WHEREFORE, Plaintiff requests that Defendant, be ordered and directed to produce the documents requested to Plaintiff within thirty (30) days of said order. Respectfully submitted, BARIC SCHERER LLC ~ David A. Baric, Esquire I.D. 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 GEORGE GARDNER : IN THE COURT OF COMMON PLEAS OF t/d/b/a Gardner Properties, . CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, : : NO. 2010- 084 CIVIL TERM V. • : CIVIL ACTION-LAW SIDING WINDOW : WAREHOUSE PLUS, INC. : and MICHAEL PALSON, . Defendants. : DISCOVERY IN AID OF EXECUTION REQUEST FOR PRODUCTION OF DOCUMENTS Pursuant to Pa.R.C.P. No. 4009, as amended, the Plaintiff, George Gardner dd/b/a Gaxdner Properties, by his attorneys, Baric Scherer, request you to produce copies of the following documents, at its expense within thirty (30) days of service of this request. INSTRUCTIONS If you object to the production of any document on the grounds that the attorney-client, I attorney work-product or any other privilege is applicable thereto, you shall with respect to that document: (a) State its date; (b) Identify its author; (c) Identify each person from whom the document was received; (d) Identify each person who received it; (e) Identify each person from whom the document was received; (f) State the present location of document and all copies thereof; (g) Identify each person who has ever had possession, custody or control of it or copy thereof; and EXHIBIT "A" (h) Provide sufficient information concerning the document and the circumstances thereof to explain the claim of privilege and to permit the adjudication of the propriety of that claim. As referred to herein, "document" includes written, printed, typed, recorded, or graphic matter, however produced or reproduced, including conespondence, telegrams, other written communications, data processing storage units, ta.pes, contracts, agreements, notes, memoranda, analyses, projections, indices, work papers, studies, reports, surveys, diaries, calendazs, films, photographs, diagrams, drawings, minutes of ineetings, or any other writing (including copies of any of the foregoing) regardless of whether you, your former or present counsel, agents, employees, officers, insurers, or any other person acting on your behalf, are now in possession, custody or control. DOCUMENTS REOUESTED 1. All corporate records for Siding Window Warehouse Plus, Inc. 2. All corporate records for SWWP, Inc. 3. All accounting records for Siding Window Warehouse Plus, Inc. for the period May 1, 2005 to the present. 4. All accounting records for SWWP, Inc. for the period May 1, 2005 to the present. 5. Any and all documents evidencing claims against, and accounts receivable from others for Siding Windows Warehouse Plus, Inc. and/or SWWP, Inc. currently outstanding. 6. All federal tax returns filed by Siding Window Warehouse Plus, Inc. and SWWP, Inc. during the period May l, 2005 to the present. 7. The most recent bank statements for any and all accounts of Siding Windows Warehouse Plus, Inc. or SWWP, Inc. 8. Any register containing the name(s) of any shareholders of Siding Windows Warehouse, Inc. Respectfully submitted, C SCHE r 1 Date: / David A. Baric, Esquire ~ I.D. 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 CERTIFICATE OF SERVICE I hereby certify that on December 15, 2010, I, David A. Baric, Esquire of Baric Scherer, did serve a copy of Discovery In Aid Of Execution Request For Production Of Documents, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Andrew H. Shaw, Esquire 200 South Spring Garden Street, Suite 11 Carlisle, Pennsylvania 17013 ~ dv~ r ~ David A. Baric, Esquire BARIC 19 West South Street Carlisle, Pennsylvania 17013 Attorneys-at-Law (717) 249-6873 (717) 249-5755 - Fax SCHERER dbaric@baricscherer.com David A. Baric Michael A. Scherer _--ac~-- Tricia D. Naylor Bret P. Shaffer January 25, 2011 Andrew H. Shaw, Esquire , 200 South Spring Garden Street, Suite 11 Carlisle, Pennsylvania 17013 RE: George Gardner t/d/b/a Gardner Properties v. Siding Window Warehouse Plus. Inc. Deax Andrew: According to my calendar, the period for you to respond to my document production request in the above matter has now expired. Please advise me as to when I may expect to receive the documents. Absent a response, I will be filing a motion to compel production of the documents. Very truly yours, BARIC SCHERER IA~ ~ 1 David A. Baric, Esquire DAB/' cc: File dab. d ir/realestate/adams/ga rnderproperties/shaw4.ltr EXHIBIT "B" • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GEORGE GARDNER . NO.: 2010-084 t/d/b/a Gardner Properties • Plaintiff . V. . CIVIL ACTION - LAW SIDING WINDOW WAREHOUSE . PLUS, INC., and . MICHAEL PALSON, . Defendants . ANSWER TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS AND NOW, this day of February, 2011, comes the Defendant, Siding Window Warehouse Plus, Inc., by and through its attorney, Andrew H. Shaw, Esquire and files the instant Answer and in support thereof states as follows: 1. Documents are forthcoming from Defendant. 2. Defendant objects to this request. SWWP, Inc. is a separate, unrelated corporation not a party to this action. Said request is in violation of Pa. R.C.P. No. 4009 et seq. 3. Documents are forthcoming from Defendant. 4. Defendant objects to this request. SWWP, Inc. is a separate, unrelated corporation not a party to this action. Said request is in violation of Pa. R.C.P. No. 4009 et seq. 5. Defendant objects to this request, as it relates to SWWP, Inc. SWWP, Inc. is a separate, unrelated corporation not a party to this action. Said request is in violation of Pa. R.C.P. No. 4009 et seq. As for the request to Siding Windows Warehouse Plus, Inc., the requested documents are forthcoming. EXHIBIT "C" 6. Defendant objects to this request, as it relates to SWWP, Inc. SWWP, Inc. is a separate, unrelated corporation not a party to this action. Said request is in violation of Pa. R.C.P. No. 4009 et seq. As for the request to Siding Windows Warehouse Plus, Inc., the requested documents are forthcoming. 7. Defendant objects to this request, as it relates to SWWP, Inc. SWWP, Inc. is a separate, unrelated corporation not a party to this action. Said request is in violation of Pa. R.C.P. No. 4009 et seq. As for the request to Siding Windows Warehouse Plus, Inc., the requested documents are forthcoming. 8. Documents are forthcoming from Defendant. Respectfully submitted Date: 'z-; By: Andrew H. Shaw, squire Pa. Supreme Ct. I.D. No. 87371 200 S. Spring Garden Street Suite 11 Carlisle, PA 17013 717-243-7135 Attorney for Defendant 2 CERTIFICATE OF SERVICE I, Andrew H. Shaw, Esquire, do hereby certify that a true and correct copy of the following document, Defendant's Answer to Plaintiff's Request For Production of Documents, was served this date on the below named, by facsimile and by placing same in the United States mail, first-class, postage prepaid thereon, addressed as follows: David A. Baric, Esquire Baric & Scherer ' 19 West South Street Carlisle, PA 17013 Attorney for Plaintiff Date: ~ J AAr7ew H. haw, Esquire CERTIFICATE OF SERVICE I hereby certify that on November q , 2011, I, David A. Baric, Esquire of Baric Scherer LLC, did serve a copy of the Motion To Compel, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Andrew H. Shaw, Esquire 200 South Spring Garden Street, Suite H Carlisle, Pennsylvania 17013 r David A. Baric, Esquire GEORGE GARDNER IN THE COURT OF COMMON PLEAS OF t/d/b/a Gardner Properties, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. 2010- 084 CIVIL TERM V. n na CIVIL ACTION-LAW SIDING WINDOW ? o WAREHOUSE PLUS, INC. z? -c and MICHAEL PALSON, -<> cn Defendants. po zo 3 5C O RULE 14 AND NOW, this y day of IV ITV • , 2011, upon consideration of the foregoing Motion To Compel, it is hereby ordered that (1) a rule is issued upon the Defendant to show cause why Plaintiff is not entitled to the relief requested; (2) the Defendant shall file an answer to the motion within '20-days of this date; (3) the motion shall be decided under Pa.R.C.P. No. 206.7; (4) depositions shall be completed within 4? days of this date; (5) argument shall be held on the 44 day of c? z C3 -•en a orr-, 20 ]kat : D t'7 a..m./pZ, in Courtroom c:-?- of the Cumberland County Courthouse; and (6) notice of the entry of this order shall be provided to all parties by the Plaintiff. BY THE COURT, Andres N. Shaw, W IQ-" 1Jaurid Aa?a , M .L. Ebert, Jr., J. M ?pPtP.g Ill /Da GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, V. SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM CIVIL ACTION-LAW ?r CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) A notice of intent to serve the subpoena with a copy of the attached subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) No objection to the subpoena has been received; and, (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve. l David A. Baric, Esquire Date: November 10, 2011 GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM CIVIL ACTION-LAW SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants. NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff, George Gardner, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Date: November 10, 2011 David A. Baric, Esquire Baric Scherer LLC 19 West South Street Carlisle, PA 17013 (717) 249-6873 GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, V. SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM CIVIL ACTION-LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Wells Fargo Bank, N.A. 604 East High Street Carlisle, Pennsylvania 17013 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all statements in your possession relating or referring to the Account ending in 0825 in the name of SWWP, Inc. Wholesale Building Supplies from September, 2006 to the present. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the following address: Baric Scherer LLC 19 West South Street Carlisle, PA 17013 c/o David A. Baric, Esquire You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: David A. Baric, Esquire I.D. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff BY THE COURT, DATE: BY: Prothonotary SEAL OF THE COURT GEORGE GARDNER, t/d/b/a Gardner Properties, PLAINTIFF V. SIDING WINDOW WAREHOUSE PLUS, INC., and MICHAEL PALSON, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-084 CIVIL ORDER OF COURT AND NOW, this 2nd day of February, 2012, after hearing on the Plaintiff's Motion for Compel and the Court noting that the Defendants failed to appear; IT IS HEREBY ORDERED AND DIRECTED that the Plaintiff's Motion to Compel is GRANTED. Defendants will provide all requested discovery on or before February 24, 2012. This discovery will include all requested documents and information concerning SWWP, Inc. Failure to comply with this Order will result in the immediate imposition of counsel fees and the scheduling of a hearing to determine sanctions to include why the Defendants should not be held in Contempt of Court By the Court, David Baric, Esquire Attorney for Plaintiff Lf Andrew Shaw, Esquire Attorney for Defendant bas CDF, es twa • r'ed 12-11-1h 1?? --? t M. L. Ebert, Jr., f--, GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM V. SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants CIVIL ACTION-LAW • ?'? - j' Ham; _, CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) A notice of intent to serve the subpoena with a copy of the attached subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) No objection to the subpoena has been received; and, (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve. / r David A. Baric, Esquire Date: April 12, 2012 GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM V. CIVIL ACTION-LAW SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff, George Gardner, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Date: March 22, 2012 David A. Baric, Esquire Baric Scherer LLC 19 West South Street Carlisle, PA 17013 (717) 249-6873 GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, V. SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL. PALSON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM CIVIL ACTION-LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Bradley A. Mentzer CPA 325 South Hanover Street Carlisle, Pennsylvania 17013 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all records or documents, in any form including, but not limited to electronic form, that were reviewed, inspected or delivered to you for the preparation of state or federal income tax returns for an entity known as SWWP, Inc. during the period of 2006 through 2010 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the following address: Baric Scherer LLC 19 West South Street Carlisle, PA 17013 c/o David A. Baric, Esquire You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the parry serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: David A. Baric, Esquire I.D. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff DATE: BY: BY THE COURT, Prothonotary SEAL OF THE, COURT GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, V. SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM CIVIL ACTION-LAW NOTICE TO: Bradley A. Mentzer CPA 325 South Hanover Street Carlisle, Pennsylvania 17013 You are required to complete the following Certificate of Compliance when producing documents or things pursuant to Subpoena. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM CIVIL ACTION-LAW CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, , certify to the best of my knowledge, information GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, V. SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants. and belief that all documents or things required to be produced pursuant to the subpoena issued on have been produced. Date: GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, V. SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM rn c rn CIVIL ACTION-LAW z _ c 171--° z rr-:r- w • ter` yc ca --; N) CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) A notice of intent to serve the subpoena with a copy of the attached subpoena attached thereto was mailed or delivered to each party at least twenty days prior the date on which the subpoena is sought to be served; (2) A copy of the notice of intent, including the proposed subpoena, is attached to thi certificate; (3) No objection to the subpoena has been received; and, (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve. _Z/ David A. Baric, Esquire Date: May 15, 2012 GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, V. SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM CIVIL ACTION-LAW NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff, George Gardner, intends to serve a subpoena identical to the one that is to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Date: April 24, 2012 David A. Baric, Esquire Baric Scherer LLC 19 West South Street Carlisle, PA 17013 (717) 249-6873 GEORGE GARDNER t/d/b/a Gardner Properties, Plaintiff, V. SIDING WINDOW WAREHOUSE PLUS, INC. and MICHAEL PALSON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010- 084 CIVIL TERM CIVIL ACTION-LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Kevin B. Benton CPA 401 East Louther Street, Suite 220 Carlisle, Pennsylvania 17013 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all records or documents, in any form including, but not limited to electronic form, that were reviewed, inspected or delivered to you for the preparation of state or federal income tax returns for an entity known as SWWP, Inc. during the period of 2006 through 2010 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the following address: Baric Scherer LLC 19 West South Street Carlisle, PA 17013 c/o David A. Baric, Esquire You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: David A. Baric, Esquire I.D. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff BY THE COURT, DATE: BY: ?g // Prothonotary SEAL OF THE COURT