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HomeMy WebLinkAbout10-2461York Road Professional IN THE COURT OF COMMON PLEAS Offices, LLC, CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff NO.: 2010- M(ol SAMIS, FLOWER & LINDSAY 26 West High Street Carlisle, PA V. CIVIL TERM - IN EQUITY Suzanne Diehl and Nicholas Pallante and n S2 Brenda Pallante, husband and wife, 1 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 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 TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 G 0a.00 Pa ArN 1 Ct-* 650 N York Road Professional IN THE COURT OF COMMON PLEAS Offices, LLC, CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff NO.: 2010- v. CIVIL TERM - IN EQUITY Suzanne Diehl and Nicholas Pallante and Brenda Pallante, husband and wife, Defendants AVISO SAIDIS, FLOWER & LINDSAY 26 West High Street Carlisle, PA contra suya por la Corte sin mas avi.so adi.cional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion Como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en defenderse de las quejas demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMA CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADA, ES POSIBLE QUE ESTA OFICINA LE PUEDO PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 2 York Road Professional Offices, LLC, Plaintiff V. Suzanne Diehl and Nicholas Pallante and Brenda Pallante, husband and wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA NO.: 2010- CIVIL TERM - IN EQUITY COMPLAINT AND NOW, comes the Plaintiff, York Road Professional Offices, LLC, by and through its attorney, and states the following cause of action: 1. The Plaintiff is York Road Professional Offices, LLC, a Pennsylvania limited liability company, with its principal office at 26 West High Street, Carlisle, Cumberland County, Pennsylvania (hereinafter "YRPO"). 2. The Defendant, Suzanne Diehl, is an adult individual who resides at 110 West Springville Road, Boiling Springs, Cumberland County, Pennsylvania. 3. The Defendants, Nicholas Pallante and Brenda SAIDIS, LINDSAY 26 West High Street Carlisle, PA Pallante, husband and wife, are adult individuals who reside at 917 Petersburg Road, Carlisle, Cumberland County, Pennsylvania (hereinafter "Pallante Defendants"). 3 4. Genevieve A. Diehl, is an adult individual who resides at 401. Myers Road, Boiling Springs, Cumberland County, Pennsylvania. 5. Suzanne Diehl and Genevieve A. Diehl, collectively, are sometimes hereinafter referred to as the Diehls. 6. The Diehls and YRPO entered into an Agreement of Sale on April 4, 2008 for Lot No. 71, 72, 73 and 74 of Jonathan Park, Parcel Nos. 40-23-0592-086; 40-23-0592-087; 40- 23-0592-088 and 40-23-0592-089, being commercial lots on York Road, South Middleton Township, Cumberland County, Pennsylvania (the "Property") The purchase price was three hundred one thousand ($301,000.00) dollars and YRPO paid a ten thousand ($10,000.00) dollar nonrefundable deposit. Settlement was called for on or before April 1, 2009. 7. By Addendum dated on or about April 4, 2009, YRPO paid an additional ten thousand ($10,000.00) dollar nonrefundable deposit and settlement was extended to on or before December 31, 2009. 8. YRPO from April 4, 2008 to December 31, 2009, SAWIS, LINDSAY AnUROXAT-IAW 26 West High Street Carlisle, PA secured architectural renderings, plans, specifications, engineering, surveying, and all the appropriate documentation ("Professional Services") for South Middleton Township to issue a Conditional Use Approval for the consolidation of the 4 four lots and the approval of a twelve thousand (12,000) square foot office building. 9. Conditional Use Approval was dated February 12, 2009 and filed to No. H08-29 in South Middleton Township. 10. The cost of Professional Services and various filing fees incurred by YRPO is $ 45,759.89, together with invoices, which have not yet been submitted. 11. On December 22, 2009, YRPO proposed seller financing to the Diehls, which would permit the conveyance of the lots from the Diehls to YRPO prior to December 31, 2009. 12. Negotiations of the various terms of seller financing continued until what appeared to be a confirmation on December 29, 2009, to which all parties were agreeable. A copy of the December 29, 2009 letter is attached hereto and marked Exhibit "A". 13. The parties discussed executing as many documents as possible on December 30, 2009, and finalizing the settlement during the week of January 4, 2010, as necessary. 14. These timeframes reflected the unavailability of the SAMIS, FLOWER & LWDS W ATTOYMMM-LAW 26 West High Street Carlisle, PA Diehls' counsel on December 31, 2009 and the fact that Robert C. Saidis, a member of YRPO, was out of town after December 30„ 2009. 15. On December 30, 2009, closing documents were emailed by YRPO to the Diehls' attorney, including, but not limited to 5 a proposed deed and executed copies of the settlement sheet, note, mortgage, collateral assignment of studies, guarantees of the principals and a disclosure for confession of judgment. 16. YRPO delivered what it understood were copies of all necessary documents for closing on December 30, 2010. 17. On Friday, December 31, 2009, the Defendants insisted on personal guarantees of the YRPO principals' spouses. 18. On December 31, 2009, YRPO confirmed with the Diehls' counsel that the members were out of town. 19. In accordance with the understanding of the parties to finalize the matter during the week of January 4, 2010, the YRPO principals discussed the spousal guarantees on January 4, 2010, and advised the Diehls that spousal guarantees from the two married members of YRPO were acceptable. A copy of the correspondence dated January 5, 2010, is attached hereto and marked Exhibit "B". 20. YRPO had substantially performed all of its obligations for the seller financing by December 30, 2009. 21. The parties had agreed that final settlement, the SAMIS, FLOWER & LINDSAY ATIOMEY, M taw 26 West High Street Carlisle, PA payment of the funds and exchange of documents would occur during the week of January 4, 2010. 6 22. But not for the arbitrary termination of the seller financing by the Diehls, the transaction would have been completed within the timeframes established by the parties. 23. YRPO had substantially performed by December 30, 2009, and offered complete performance to the seller financing by January 5, 2010. 24. YRPO's inability to consent to and delivery spousal guarantees on a specified date is not, per se, a breach, which destroyed the contract between the Diehls and YRPO for seller financing. 25. YRPO is protected by the Equitable Doctrine of Substantial Performance. 26. The Pallante Defendants, were fully aware of the allegations of this Complaint and YRPO's legal position that the Diehls had a legal obligation to provide financing to YRPO. 27. Despite the Pallante Defendants' knowledge of YRPO's SAMIS, UNDSAY ATFORNErWMAW 26 West High Street Carlisle, PA alleged legal claim, which had been delivered to the Diehls on Friday, March 5, 2010, the Pallante Defendants accepted conveyance of Genevieve A. Diehl's one-half interest of the property on March 29, 2010, which deed is recorded as Instrument No. 201008037 and copy of which is attached hereto, made a part hereof and marked Exhibit "C". 7 28. Pallante Defendants accepted the conveyance for the sole purpose of removing Genevieve A. Diehl as a defendant in this lawsuit. 29. The conveyance to the Pallante Defendants was with the full knowledge of the claims asserted herein of YRPO and that the conveyance to Pallante Defendants would be under and subject to these claims. 30. The Pallante Defendants agree not to raise any defense, which is not available to the Diehls, including, but not limited to the Pallante Defendants being a bona fide purchaser for value; the Pallante Defendants not having privity of contract with YRPO or any other defense the Pallante Defendants may have, which is not available to the Diehls. WHEREFORE, YRPO, Plaintiffs in this matter, prays your Honorable Court: 1. To order and direct the Defendants to provide seller financing on the terms and conditions, which were agreed, including spousal guarantees; A. To direct the Defendants to convey Property by SAMIS, LINDSAY AT[U§V*' SATUw 26 West High Street Carlisle, PA Deed of Special Warranty free and clear of all encumbrances; 8 B. To retain jurisdiction and set a timeframe for the conveyance and financing as hereinbefore set forth; 2. Or in the alternative, to declare the Agreement of Sale null and void and order and direct the Defendants: A. To refund to YRPO the twenty thousand ($20,000.00) dollar nonrefundable deposit, together with. interest; B. To pay YRPO the sum of $45,759.89 for all Professional Services and filing fees; C. To pay YRPO any and all additional sums for Professional Services, which have not yet been billed; and D. To direct YRPO to deliver copies of all the documents represented by the Professional Services to the Defendants. SAMIS, LINDSAY A7lO§U*-Y -LAW 26 West High Street Carlisle, PA Date AfaIL'-N, 70W Respectfully submitted, %bert C. Saidis, Esquire Attorney I.D. No.: 21458 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiff 9 VERIFICATION I verify that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. York Road Professional Offices, LLC DATED : 1Y" ZWh By: William Kronenberg Me er SAMIS, LINDSAY ATIUW%ts.nruw 26 West High Street Carlisle, PA 10 MAXI I4Q 1-_1F;.r1.RDORFF WILLIAMS OTTO C ILROY & F'A.I.,LER NIAPTSON LAW OFFICES 10 EAST HIGH STRF.IiT CARLISLE, PENNSYLVANIA 17013 TL-'LuRONE (717) 243-3341 FACSIMILE (717) 243-1850 IvTFRNET a-wucmartsonla-ucom WILLIAM R MARTSON JOHN B. Fowj.FR 111 DANA,a. K. DEARDORFF THOMAS J. WILLIAMS* No V. OTro III HuHERT X. GILROY GFoRGF, B. FAI.LRR JR.* DAviD A. FITZSIMONS CHRISTOPHER E. RICE JENNIFER L. SPEARS SE-r1-1 T. MosFRFY TRUDY E. FLHLINGGR KATIE. J. MAXWELL JACOB M. THF.Is 'BOARD Compiea CML TxAL SPICIALIST December 29, 2009 VIA E-MAIL (rsaidis(aIsfl-law.com) Robert C. Saidis, Esquire SAIDIS, FLOWER & LINDSAY 26 West High Street Carlisle, PA 17013 RE: Diehl to Kronenberg and Saidis - Jonathan Park, Lots 71, 72, 73 and 74, South Middleton Township, Pennsylvania Our File No. 12303.27 Dear Bob: After our negotiations on December 29, 2009, it appears that we have reached the following agreement: 1. Settlement will occur by December 31, 2009. 2. Buyer will pay $10,000.00 at settlement to be applied towards the purchase price. 3. The Buyer will receive Seller Financing for the balance of the purchase price. The note will be for two years (December 31, 2011) with the option to extend for one additional year (December 31, 2012); provided, however, that Buyer must pay an additional $40,000.00, which will be applied to the purchase price, in order to exercise the option. 4. The interest rate for the first two years will be six (6%) percent and will increase to ten (10%) percent during year three if the option is exercised. 5. Personal/Unlimited Guarantees will be required of all partners which includes you, William Kronenberg, and Andrew Kronenberg. 6. Title Insurance will be issued by your office for the benefit of the Seller with the appropriate endorsements as determined by Seller. 7. Buyer may prepare all loan documents including a Note, Mortgage, Deed, Guaranties, Assignment of Contracts and any other documents deemed appropriate by Seller, which will be reviewed and approved by Seller's counsel. 8. All costs incurred by Seller, except for the transfer tax, will be paid for by Buyer. 11 LAW OFFICES SAIDIS, FLOWER & LINDSAY ' A PROFESSIONAL CORPORATION 26 WEST HIGH STREET JOHN E. SLIKE CARLISLE, PENNSYLVANIA 17013 ROBERT C. SAIDIS TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486 JAMES D. FLOWER, JR. EMAIL: attorney@sfl-law.com CAROL J. LINDSAY www.sfl-law.com JOHN B. LAMPI DANIEL L. SULLIVAN ALBERT H. MASLAND DEAN E. REYNOSA THOMAS E. FLOWER MARYLOU MATAS JASON E. KELSO January 5, 2010 Via email criceAmartsonlaw.com Christopher E. Rice, Esq. Martson Law Offices 10 East High Street Carlisle, PA 17013 Re: Diehl/Jonathan Park Dear Chris: CAMP HILL OFFICE 2109 MARKET STREET TELEPHONE: (717)737-3405 FACSIMILE: (717)737-3407 REPLY TO CARLISLE Late in the afternoon of January 4, 2010, I had an opportunity to speak with Doc Kronenberg. Doc's wife, Jodi, is willing to guarantee the loan, as is my wife. This is consistent with the emails we traded on December 31, 2009, where the following was indicated: 1. Your client wanted spousal guarantees. 2. I was unable to get in touch with Doc Kronenberg. 3. We would talk on Monday, January 4, 2010. Needless to say, it is to everyone's advantage to salvage this deal. we are looking for a follow up upon Don's return to see if we can continue to work through this transaction. As always, we appreciate everyone's effort in this regard. I received your email. of Tuesday, January 5, 2010, and certainly would consider this as another option if it is viewed more favorably by the Diehls and there are no additional costs to us. Needless to say, we would prefer the original terms as set forth in your December 29, 2009 letter, subject to a final agreement after your review of those documents and the spousal guarantees. RCS/pm CC: William Kronenberg Andrew Kronenberg yours , WER & LINDSAY Saidis 1111111111 4? OOOPNE Parcel No. 40-23-0592-089 40-23-0592-088 40-23-0592-087 40-23-0592-086 DEED MADE THE 29`h day of March, 2010. BETWEEN GENEVIEVE A. DIEHL AND SUZANNE DIEHL, of Cumberland County, Pennsylvania, hereinafter referred to as: Grantors, AND NICHOLAS PALLANTE AND BRENDA PALLANTE, husband and wife, with a one-half interest held as tenants by the entirety, and SUZANNE DIEHL, a married woman, with a one-half interest, and Nicholas Pallante and Brenda Pallante holding title as tenants in common with Suzanne Diehl, all of Cumberland County, Pennsylvania, hereinafter referred to as: Grantees, In consideration of ONE HUNDRED FIFTY THOUSAND DOLLARS AND 00/100 ($150,000.00), the receipt whereof is hereby acknowledged, the Grantor does hereby grant and convey to the Grantees, their heirs and assigns: ALL THOSE CERTAIN tracts of land situate in South Middleton Township, Cumberland County, Pennsylvania, bounded and described according to the Plan for Phase No. I of Jonathan Park, prepared by Stephen G. Fisher, P.L.S., dated December 2, 1985, and recorded in the Office of the Recorder of Deeds in and for Cumberland County in Plan Book 49, Page 107, as follows: TRACT 1: BEGINNING at an iron pin on the dedicated right-of-way line of York Road , PA 74, L.R. 125 and the northwestern corner of Lot No. 68 on the above- referenced Plan; thence along said Lot No. 68 , South 32 degrees 14 minutes 55 seconds West 150.00 feet to a point; thence along Lot Nos. 68, 11, and 12 on the above-referenced Plan, North 57 degrees 45 minutes 05 seconds West 120.00 feet to a point; thence along Lot No. 73 of the above-referenced Plan, North 32 degrees 14 minutes 55 seconds East 150.00 feet to a point; thence along said dedicated right-of- way line of York Road, PA 74, L.R. 125, South 57 degrees 45 minutes 05 seconds East 120.00 feet to an iron pin, the place of BEGINNING. BEING Lot No. 73 on pages 1, 2 & 5 of the Plan for Phase No. 1 of Jonathan Park and being Lot No. 74 on page 3 of the Plan for Phase No. 1 of Jonathan Park as referenced above and containing 18,000 square feet. TRACT 2: BEGINNING at a point on the dedicated right-of-way line of York Road, PA 74, L.R. 125 at the northwestern corner of Lot No.74 on the above-referenced Plan; thence along said Lot No. 74, South 32 degrees 14 minutes 55 seconds West 150.00 feet to a point; thence along Lot Nos. 12 and 13 on the above-referenced Plan and Lot No. 67 on the Plan for Phase No. 2 of Jonathan Park, recorded in Cumberland County Plan Book 55, Page 27, North 57 degrees 45 minutes 05 seconds West 120.00 feet to a point; thence along Lot No. 72 of the above-referenced Plan, North 32 degrees 14 minutes 55 seconds East 150.00 feet to a point; thence along said dedicated right-of-way line of York Road. PA 74, L.R. 125, South 57 degrees 45 minutes 05 seconds East 120.00 feet to an iron pin, the place of BEGINNING. BEING Lot No. 72 on pages 1, 2 & 5 of the Plan for Phase No. 1 of Jonathan Park and being Lot No. 73 on page 3 of the Plan for Phase No. I of Jonathan Park as referenced above and containing 18,000 square feet. TRACT 3: BEGINNING at a point on the dedicated right-of-way line of York Road, PA 74, L.R. 125 at the northwestern corner of Lot No. 73 on the above-referenced Plan; thence along said Lot No. 73, South 32 degrees 14 minutes 55 seconds West 150.00 feet to a point; thence along Lot No. 67 on the Plan for Phase No. 2 of Jonathan Park, recorded in Cumberland County Plan Book 55, Page 27, North 57 degrees 45 minutes 05 seconds West 120.00 feet to a point; thence along Lot No. 71 of the above-referenced Plan, North 32 degrees 14 minutes 55 seconds Fast 150.00 feet to a point; thence along said dedicated right-of-way line of York Road, PA 74, L.R. 125, South 57 degrees 45 minutes 05 seconds East 120.00 feet to an iron pin, the place of BEGINNING. BEING Lot No. 71 on pages 1, 2 & 5 of the Plan for Phase No. 1 of Jonathan Park and being Lot No. 72 on page 3 of the Plan for Phase No. 1 of Jonathan Park as referenced above and containing 18,000 square feet. TRACT 4: BEGINNING at a point on the dedicated right-of-way line of York Road, I'A 74, L.R. 125 at the northwestern corner of Lot No. 72 on the above-referenced Plan; thence along said Lot No. 72 , South 32 degrees 14 minutes 55 seconds West 150.00 feet to a point; thence along Lot No. 67 on the Plan for Phase No. 2 of Jonathan Park, recorded in Cumberland County Plan Book 55, Page 27, North 57 degrees 45 minutes 05 seconds West 120.00 feet to a point; thence along land now or formerly of Carlisle Community Baptist Church, North 32 degrees 14 minutes 55 seconds East 150.00 feet to a point; thence along said dedicated right-of-way line of York Road, PA 74, L.R. 125, South 57 degrees 45 minutes 05 seconds East 120.00 feet to an iron pin, the place of BEGINNING. BEING Lot No. 70 on pages 1, 2 & 5 of the Plan for Phase No. 1 of Jonathan Park and being Lot No. 71 on page 3 of the Plan for Phase No. 1 of Jonathan Park as referenced above and containing 18,000 square feet. BEING THE SAME PREMISES which Raymond E. Diehl and Donald E. Diehl, by Deed dated March 28, 2007, and recorded March 30, 2007, in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania at Instrument No. 2007010411, granted and conveyed unto Genevieve A. Diehl and Suzanne Diehl, Grantors herein. Under and subject to any and all building and use restrictions and easements of record. THIS IS A CONVEYANCE FROM MOTHER-IN-LAW/MOTHER AND SISTER-IN-LAW TO SON-IN-LAW/BROTHER-IN-LAW AND DAUGHTER/SISTER-IN-LAW AND IS THEREFORE EXEMPT FROM REALTY TRANSFER TAX. AND the said Grantors hereby covenant and agree that they will warrant specially the property hereby conveyed. IN WITNESS WHEREOF, said Grantors have hereunto set their hands and seals the day and vear first above written. SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF r, jq%_"jjkt (SEAL) Genevieve A. Die Raymond E. Diehl, the spouse of Genevieve A. Diehl, Grantor herein, joins in the within conveyance solely for the purpose of releasing whatever interest he may be construed to have. 417-:m e, (SEAL) Ra nd E. Diehl Donald E. Diehl, the spouse of Suzanne Diehl, Grantor herein, joins in the within conveyance solely for the purpose of releasing whatever interest she may be construed to have. : ?(SE?AL) Donald E. Diehl .r. ?.. ? 1r wv a. sir. ?y.W ?4 sYlY .. ..+Ym w?r?wr.vw++.•.+N.e.?+++.... ?. COMMONWEALTH OF PENNSYLVANIA } j: ss. COUNTY OF CUMBERLAND ) On this, the 29`h day of March, 2010, before me, the undersigned officer, personally appeared Raymond E. Diehl and Genevieve A. Diehl, known to me or satisfactorily proven to be the persons whose names are subscribed to the within instrument, and acknowledged that they executed the same tar the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. COANA MYE&TH OF PENNSYL / vMu? ?Iv Now" Seel - I/L. "L - 06-a??' (SEAL) MwaretAmNeah,Not"PMc No 7nblic CwNele eoro, CwtwWo eounty lWy Ca wnWslon EWft June 28, 201 f Mwabar, Pennsylvania Associalon of Notaries COMMONWEALTH OF PENNSYLVANIA ) ss. COUNTY OF CUMBERLAND ) On this, the 29" day of March, 2010, before me, the undersigned officer, personally appeared Donald E. Diehl and Suzanne Diehl, known to me or satisfactorily proven to be the persons whose names are subscribed to the within instrument, and acknowledged that they executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. ? TH of MINSYLVANU ONWEAt S*ft SW MWFatAm Nwh, NOWY PLOD 0MV " E?q W June a 2M 1 panls Aaaoe+at M of s No lic I L / +C,t, EAL HU" i -- I hereby certify that the precise residence and complete post office address of the within Grantees is 417 Petersburg Road, Carlisle, PA 17015 Attorney for Grantees MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 EAS'r HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE 717-243-3341 FACSIMILE 717-243-1850 INTERNET www.martsonlawxom ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 201008037 Recorded On 3/31/2010 At 3:49:53 PM * instrument Type - DEED Invoice Number - 63206 User ED - JM * Grantor - DIEHL, GENEVIEVE A * Grantee - PALLANTE, NICHOLAS * Customer - MARTSON * FEES STATE WRIT TAX $0.50 STATE JCS/ACCESS TO $23.50 JUSTICE RECORDING FEES - $17.00 RECORDER OF DEEDS PARCEL CERTIFICATION $40.00 FEES AFFORDABLE HOUSING $11.50 COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 SOUTH MIDDLETON SCHOOL $0.00 DISTRICT SOUTH MIDDLETON TOWNSHIP $0.00 TOTAL PAID $97.50 * Total Pages - 7 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA RECORDER O D DS * - Information denoted by an asterisk may change during the verification process and may not be reflected on this page. OWNE IItlIIiIR 11111111111111111 it . York Road Professional : IN THE COURT OF COMMON PLEAS Offices, LLC, : CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff :NO.: 2010 - ac{ (o ff 0,-W, l Teru- CIVIL TERM - IN EQUITY Suzanne Diehl and Nicholas Pallante and Brenda Pallante, husband andwife, Defendants r? PRAECIPE V FOR LIS PENDENS TO THE PROTHONOTARY: Please index this Praecipe as a lis pendens with regard to the real estate kno'PA an(k numbered as Lot No. 71, 72, 73 and 74 of Jonathan Park, Parcel Nos. 40-23-0592-086; 40-23- 0592-087; 40-23-0592-088 and 40-23-0592-089, South Middleton Township, Cumberland County, Pennsylvania owned by Defendants, Suzanne Diehl and Nicholas Pallante and Brenda Pallante, husband and wife, and more fully described in the deed recorded in the office of the Recorder of Deeds of Cumberland County to Instrument No. 201008037. The address of the parties in this matter are as follows: Plaintiffs: York Road Professional Offices, LLC 26 West High Street Carlisle, PA 17013 Defendants: Suzanne Diehl 110 West Springville Road Boiling Springs, PA 17007 Nicholas and Brenda Pallante 917 Petersburg Road Carlisle, PA 17013 SAIDIS, FLOWER & LINDSAY ATIOWEYS•ADIAW 26 West High Street Carlisle, PA Dated: 2 f c- / Z d Respectfully submitted, Robert C. ai ' , squire Attorney for Plaintiffs Supreme Court ID #21458 Saidis, Flower & Lindsay 26 West High Street Carlisle, PA 17013 717-243-6222 *-00 A6 Arj CASH P* a14o+7l I4o kojrce CERTIFICATE OF SERVICE I hereby certify that a copy of the Praecipe for Lis Pendens was served this date via United States Mail, postage prepaid, addressed as follows: Christopher E. Rice, Esq. 10 East High Street Carlisle, PA 17013 SAIDIS, FLOWER & LINDSAY ATIUMM nr uW 26 West High Street Carlisle, PA Dated: ??, oZD lD SAIDIS, FLOWER & LINDSAY Phy is McCoy 2 York Road Professional IN THE COURT OF COMMON PLEAS Offices, LLC, CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff NO.: 2010-2461 ~~ ~ _ v . ~= ~ , =-; CIVIL TERM - IN E~IT~'I'Y ~.- ~ Suzanne Diehl and - ~ ~ ~ ' ''~ _ Nicholas Pallante and - ~ -_; Brenda Pallante, husband and ~ ~-~ ,- _ ''` wife, ~;:; _ . '.Y -; - Defendant s y,,--. - !" ;i :: ~-~ REPLY TO NEW MATTER AND COUN'PERCLAIM AND NOW comes the Plaintiff through its attorney, Saidis Sullivan Law, and replies to the Defendants' Answer with New Matter and answers the Defendants' Counter Claim, as follows: REPLY TO NEW MATTER 31. No answer is required. 32. Denied. The letter speaks for itself. SAIDIS, FIAWER Sz LINDSAY A'[TORNEYS•A'C•1AW 26 West High Street Carlisle, PA 33. Denied. The letter speaks for itself. By way of further answer, the letter dated December 22, 2009, suggests Seller financing, which started the negotiations to resolve the financing issue. 34. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment and proof thereof is demanded. 35. Denied. The letter speaks for itself. By way of further answer, the parties were aware of each others' holiday schedules, which would take them out of the office. Discussions concerning the final exchange of documentation after December 31, 2010, were raised without objection in verbal conversations and on Christmas Eve, December 24, 2009, in writing (Exhibit "D" to Defendants Answer With New Matter). 36. Denied. The letter speaks for itself. 37. Denied. The letter speaks for itself. 1 38. Denied. The letter speaks for itself. SAIDIS, I IlVDS nrromvEYS•nn~nw 26 West High Street Carlisle, PA 39. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment and proof thereof is demanded. 40. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment and proof thereof is demanded. 41. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment and proof thereof is demanded. By way of further answer, the action of the Defendants' counsel demonstrates that the final resolution was to occur during the week of January 4, 2010, at which time counsel would have the opportunity to review the documents. 42. Denied. The email speaks for itself. By way of further answer, the parties had agreed to finalize the settlement during the week of January 4, 2010. It is clearly evident by Exhibit "E" to the Answer, as counsel for the Defendants was fully aware that Robert C. Saidis, Esq. was out of town on December 31, 2010, and was not able~to reach the other members of the Plaintiff until after the new year. A copy of the January 5, 2010 email to Christopher E. Rice, Esq. agreeing to personal guarantee of all spouses is attached as Exhibit "B" to the Complaint. Plaintiff, also, believes that Donald Diehl, spouse of Suzanne Diehl, was the agent of the Defendants in negotiating the terms of the financing. 43. Denied as stated. The email speaks for itself. The email is consistent with the Plaintiff's position that the final details of the transaction were to be resolved the week of January 4, 2010. The email dated January 5, 2010 to Christopher E. Rice, Esq., attached as Exhibit "B" to the Complaint, is consistent with the Plaintiff's position and accepts the requirement for spousal guarantees. 44. Denied. The agreement of the parties had always been that the majority of the transactional documents would be exchanged on or before December 31, 2009, and the details resolved during the week of January 4, 2010. In particular, this included the Defendants providing tax information to allow proration and the review of all documents by Defendants' 2 counsel, all of which was acceptable to the parties until the arbitrary and capricious termination of the Seller financing by the Defendants. The alleged termination is represented in the email attached as Exhibit "G" to the Answer With New Matter and was sent on December 31, 2009, at 2:46 P.M. SAIDIS, FIAWER Sz LIlVDSAY n~noiuv~vsnruw 26 West High Street Carlisle, PA 45. Denied. The averments of paragraph 45 state a conclusion of law. By way of further answer, a commitment letter is not customary in Cumberland County or central Pennsylvania with regard to seller financing. The negotiation of the terms was ongoing and continued to evolve until December 31, 2009, at 8:52 A.M. when personal guarantees of spouses were requested. The parties were aware that all the Members of the Plaintiff were unavailable until after the new year and that the actual response of the Plaintiff could not be made until the week of January 4, 2010. 46. Denied. To the contrary, the final terms upon which both counsel acted were contained in the letter of December 29, 2009 (a copy of which is attached to the Complaint as Exhibit "A"), which did not require spousal guarantees. It was only on December 31, 2009, that the final requirement of spousal guarantees was communicated~to Plaintiff's counsel. Pursuant to the parties' agreement to resolve matters the week of January 4, 2010, the Defendants were promptly notified on January 5, 2010, that spousal guarantees were acceptable. All other terms, conditions and requirements had been agreed to by and between the parties, through their counsel, on or before December 31, 2009. In addition, all other loan documents had been submitted to Defendants' counsel on or before December 31, 2009. 47. Admitted in part and denied in part. It is admitted that as part of the negotiations there were discussions between the parties concerning the pros and cons of resolving the transaction. In addition, Defendants' counsel was also advised that it was in everyone's best interest to settle, to accomplish as much as possible on or before December 30, 2009, and to proceed in good faith and fair dealing to resolve the final issues between the parties during the week of January 4, 2010. Plaintiff never received any objection to this timetable until December 31, 2009 at 2:46 p.m. WHEREFORE, Plaintiff prays your Honorable Court: 1. To order and direct the Defendants to provide seller financing on the terms and conditions, which were agreed, 3 including spousal guarantees: A. To direct the Defendants to convey Property by Deed of Special Warranty free and clear of all encumbrances; B. To retain jurisdiction and set a timeframe for the conveyance and financing as hereinbefore set forth. 2. Or in the alternative, to declare the Agreement of Sale null and void and order and direct the Defendants: A. To refund to Plaintiff the twenty thousand ($20,000.00) dollar nonrefundable deposit, together with interest; B. To pay Plaintiff the sum of $45,759.89 for Professional Services, together with attorney's fees for securing all governmental approvals and filing fees; C. To pay Plaintiff any and all lost profits, by reason of the Defendants arbitrary and capricious acts; D. Such other relief as is just and equitable in the opinion the Court. COUNTERCLAIM 48. No answer is required. SAIDIS, FIAWER Sz LINDSAY 26 West High Street Carlisle, PA 49. Denied. The Complaint in this matter was filed after the Defendants arbitrarily and capriciously refused to complete settlement. The Complaint was filed on April 14, 2010. 50. No answer is required as the averments state a conclusion of law. By way of further answer, the relief sought by the Plaintiff is set forth in the Complaint and the Answer to New Matter. 51. Denied. To the contrary, all terms had been agreed upon for the seller financing, in accordance with the discussions of the parties. The requirement of spousal guarantees on December 31, 2009, at 2:46 p.m. was to be resolved during the week of January 4, 2010. Plaintiff notified the Defendants on January 5, 2010 that spousal guarantees were acceptable. 52. Denied. The agreement of the parties had been reached, subject only to the final resolution of spousal 4 guarantees, as requested by the Defendants on December 31, 2009 at 2:46 p.m., and agreed to by the Plaintiff on January 5, 2010. On repeated occasions, Defendants had been informed that details, which remained unresolved, would be handled promptly during the week of January 4, 2010. No objection was ever raised by the Defendants to this resolution. SAIDIS, FLOWER Sz LIlVDSAY nrro~~rsnr•uw 26 West High Street Carlisle, PA 53. No answer is required as the averments of paragraph 53 state a conclusion of law. 54. The Defendants have no defense and, accordingly, the Plaintiff seeks attorneys' fees pursuant to the Judicial Code. WHEREFORE, Plaintiff respectfully requests that the Court enter judgment for attorneys' fees in favor of the Plaintiff, and against the Defendants, and deny the Defendants' request for attorneys' fees, costs, and interest. Date Z ~ p Respectfully submitted, ~~ ..~ f~ Robert C. Saidis, Esquire Attorney I.D. No.: 21458 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiff 5 VERIFICATION I verify that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. ~ 4904, relating to unsworn falsification to authorities. York Road Professional Offices, LLC /~ <~'" DATED: F (L ~ / y: An w Krone er SAIDIS, LIND ~~~:~W 2G West High Street Carlisle, PA CERTIFICATE OF SERVICE On this 7th day of July, 2010, I hereby certify that I served a true and correct copy of the foregoing Reply to New Matter and Counterclaim upon the attorney of record for the Plaintiffs via United States Mail, postage prepaid, addressed as follows: Christopher E. Rice, Esq. Hubert X. Gilroy, Esg. Martson Law Offices 10 East High Street Carlisle, PA 17013 SAIDIS SULLIVAN LAW / ~ ~`~ By : ~-. c=~ Jason E. Kelso, Esquire ~~ SAIDIS, LIND ~~.~.~,W 26 West High Street Carlisle, PA 7 en f ~~ ~ ~~ Y ,, . . PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) CU+d~ ~.~ :_: L't~J~`1' TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ^ for JURY trial at the next term of civil court. X^ for trial without a jury. CAPTION OF CASE (entire caption must be stated in fuln YORK ROAD PROFESSIONAL OFFICES, LLC vs. SUZANNE DIEHL and NICHOLAS & BRENDA PALLANTE vs. (Defendant) Pretrials will be held on 9/8/2010 (Briefs are due S days before pretria[s No. 2010-2461 Civil Indicate the attorney who will try case for the party who files this praecipe: Hubert X. Gilroy, Esquire, for the Defendants Indicate trial counsel for other parties if known: Robert C. Saidis, Esquire, for the Plaintiff This case is ready for trial. Signed: Term Print Name: Hub~rt x. Gilroy,. Date: July 13, 2010 Attorney for: Defendants 015.00 P O 1v'r1`'y e# aa73s 2*a~lsara (check one) XQ Civil Action -Law ^ Appeal from arbitration (other) (Plaintiff) The trial list will be called on 8/31/2010 and Trials commence on 9/20/2010 YORK ROAD PROFESSIONAL : IN THE COURT OF COMMON PLEAS OF OFFICES, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. SUZANNE DIEHL and NICHOLAS and BRENDA PALLANTE, Defendants CIVIL ACTION -LAW NO. 10-2461 CIVIL TERM ORDER OF COURT AND NOW, this 21St day of July, 2010, a pretrial conference in the above matter is scheduled for Thursday, September 16, 2010, at 11:00 a.m., in chambers of the undersigned judge, Cumberland County Courthouse, Cazlisle, Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference. ./Robert C. Saidis Es . q 26 West High Street Carlisle, PA 17013 Attorney for Plaintiff /Hubert Gilroy, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendants Court Administrator - ~LG~.y1d ~a~-~a~ :rc ~,~ ,~~c~c.. 9~aa /ro ~~ ~=~" ~~ r .~ ~? ~: z_._ r_ ~_.. c... ~- ~_: ~~ -,-•. £.:.: .~;~;-: -.,, ,,. BY THE COURT, I= fu.~i~ "_ , Pm ~:~K CU;.- ~ _ ~ F~tiT~~ r. ,.. _~' P. Richazd Wagner, Esquire PA Supreme Court LD. #23103 Mancke, Wagner, &Spreha 2233 North Front Street Harrisburg, PA 17110 Telephone (717) 2347051 Fax (717)234-7080 Attorney For Plaintiff YORK ROAD PROFESSIONAL OFFICES, LLC, Plaintiff, v. SUZANNE DIEHL and NICHOLAS PALLANTE and BRENDA PALLANTE, husband and wife, Defendants. TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 2010-2461 Civil Term CIVIL ACTION -LAW INEQUITY PRAECIPE Please enter the appearance of the undersigned as counsel for the Plaintiff, York Road Professional Offices, LLC, in the above-captioned matter. Respectfully Submitted, agner &Spreha P. char agner, Esquire i. i 03 2233 North Front Street Harrisburg, PA 17110 Attorneys For Plaintiff Date: ? - 2 S -~ 0 York Road Professional Offices, LLC, Plaintiff v. Suzanne Diehl and Nicholas Pallante and Brenda Pallante, husband and wife, Defendants TO THE PROTHONOTARY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA NO.: 2010-2461 CIVIL TERM -INEQUITY PRAECIPE o *- ~'? ~ e~ r o ',`, mot- ~~ ,.~~ _ _ t~ __ . ~ u: '~ ~ ~;,' _ Please withdraw the appearance of Robert C. Saidis, Esq. in the above-captioned matter. Respectfully submitted, FLOWER ~ I.~TDSAY 2G West High Street Carlisle, PA Date ~ ~' 4 ~ ~ SAIDIS SULLIVAN LAW Ro C. Sai ><s, Esquire Attorney I.D. No.: 21458 26 West High Street Carlisle, PA 17013 (7171243-6222 Attorney for Plaintiff Hubert X. Gilroy, Esquire I.D. No. 29943 R. Christopher VanLandingham, Esquire LD. No. 307424 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Cazlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Flt ~p-OFFlCE OF THE PROTHONOTARY 2Q10 SEP 23 Pty i ~ X00 CU~gFR~.AND COUNTY p<3~NSYLYAN4A YORK ROAD PROFESSIONAL OFFICES, LLC, Plaintiff v. SUZANNE DIEHL, and NICHOLAS PALLANTE and BRENDA PALLANTE, husband and wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-2461 CIVIL TERM :INEQUITY ORDER AND NOW this Z S^ ~ ~ day of September, 2010, pursuant to an agreement reached by the parties at a pre-trial conference held on September 16, 2010, it is hereby Ordered and directed as follows: 1. This case is stricken from the trial list. 2. The parties shall proceed with and conclude all discovery by December 1, 2010. 3. The parties shall file any dispositive motions with the Court on or before January 1, 2011. 4. In the event no dispositive motions aze filed, the parties may proceed to list this case again for trial after January 1, 2011. CC: ~~chazd Wagner, Esquire Hubert X. Gilroy, Esquire i'n,~ l lSr-l.~ l_.OrJ t E'.S 4/~a J -v ~~ • 11 York Road Professional IN THE COURT OF COMMON PLEAS Offices, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V C= C:5 11 . --D Z o NO.: 2010 - 2461 ? Co r # i i Suzanne Diehl and .' Nicholas Pallante and ? CIVIL TERM - IN EQUITY ' Brenda Pallante husband and , ? c:o -'- ' ~n Wife, ` ° Defendants = ' 5 MOTION FOR RECUSAL OF THE HONORABLE JUDGE J. WESLEY OLER AND THE BENCH OF THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY AND NOW, Plaintiff, York Road Professional Offices, LLC, by and through its counsel, P. Richard Wagner, Esquire, hereby moves this Honorable Court to recuse itself from this case, and avers as follows: 1. The Managing Member of Plaintiff is Robert C. Saidis, Esquire, who is a practicing attorney in Cumberland County and an active member of the Cumberland County Bar (hereinafter referred to as "Saidis' ). 2. A primary witness for the Defendants is Christopher E. Rice, Esquire, who is a practicing attorney in Cumberland County and an active member of the Cumberland County Bar (hereinafter referred to as "Rice"). 3. Saidis and Rice have represented clients and presented matters before the Honorable Judge J. Wesley Oler (hereinafter referred to as "Judge Oler") and all other Members of the Cumberland County Bench (hereinafter referred to as the "Bench"). 4. Judge Oler heard a nonj ury trial between Raymond E. Diehl and Genevieve A. Diehl v. John McAdoo and Cathy McAdoo, No. 2008-1234 Civil Term, in which Saidis was counsel for Raymond E. and Genevieve A. Diehl. 5. Genevieve A. Diehl is the prior owner of the tract of land subject to this litigation during the occurrence of the events, which give rise to this action. 6. Saidis and Rice will continue to represent clients and present matters in front of Judge Oler and the Bench. 7. Saidis is actively considering seeking election to the Bench in 2011 as a candidate for one of two seats which are open on the Bench. • • 8. In the event Saidis is successful in his candidacy, Judge Oler and the Bench would be asked to render a decision involving a future member of the Bench. 9. In the event Saidis' candidacy is successful, there would be an appearance of impropriety if Judge Oler and the Bench did not recuse themselves. 10. As stated in Plaintiff's complaint, Plaintiff incurred in excess of $45,759.89 in fees for professional services and various filings regarding this matter. 11. As Managing Member of Plaintiff, Saidis has personally incurred and paid for some of the fees stated. 12. The Agreement of Sale entered into by Plantiff and Defendant and negotiations of the various terms of seller financing involved numerous communications and negotiations between Saidis and Rice. 13. Saidis and Rice will be the primary witnesses for the Plaintiff and Defendant in this matter. 14. In hearing this matter, judge Oler or the Bench will be required to determine the credibility of both Saidis and Rice in deciding this matter. 15. In hearing this matter, Judge Oler or the Bench must make a decision that may personally either benefit or adversely effect Saidis. 16. Pursuant to the Code of Judicial Conduct, Canon 3, "Judges should disqualify themselves in a proceeding in which their impartiality might be reasonably questioned." IT The failure to recuse themselves by Judge Oler and the Bench may be an appearance of impropriety and the impartiality of Judge Oler and the Bench may be questioned. 18. The continued involvement of Judge Oler and the Bench in this case creates the appearance of an impropriety and would tend to undermine public confidence in the judiciary. WHEREFORE, Plaintiff respectfully requests that the Honorable Judge Wesley Oler and other Honorable Judges of the Court of Conunon Pleas of Cumberland County recuse themselves from this matter and further that an Order be entered appointing a visiting Judge. Date: Respectfully submitted, MANCKE, GNER & SPREHA By chard Wagner Attorney I.D. No.: 23103 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 Fax: (717) 234-7080 Attorney for Plaintiff • VERIFICATION I verify that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. York Road Professional Offices, LLC DATED: ,r' B ert C. Saidis, Member CERTIFICATE OF SERVICE On this ,! day of 2010, I hereby certify that I served a true and correct copy of the foregoing Motion for Recusal of the Honorable Judge J. Wesley Oler and the Bench of the Court of Common Pleas of Cumberland County upon all parties of record via United States Mail, postage prepaid, addressed as follows: Hubert X. Gilroy, Esq. 10 East High Street Carlisle, PA 17013 Mancke Wagner Spreha & McQuillan By: I?y(/J/ (fl iYla,.a J YORK ROAD PROFESSIONAL : IN THE COURT OF COMMON PLEAS OF OFFICES, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW SUZANNE DIEHL and NICHOLAS and BRENDA PALLANTE, Defendants NO. 10-2461 CIVIL TERM IN RE: MOTION FOR RECUSAL OF THE HONORABLE JUDGE J. WESLEY OLER AND THE BENCH OF THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ORDER OF COURT AND NOW, this 6t' day of January, 2011, upon consideration of the attached motion for recusal, a hearing is scheduled for Thursday, February 3, 2011, at 4:00 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, ? P. Richard Wagner, Esq. 2233 North Front Street Harrisburg, PA 17110-1027 Attorney for Plaintiff Hubert Gilroy, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendants (1,,p es J. v o :rc FILED-OFFICE FAFILES\Clients\12303Diehl\12303.27Kronenberg and Saidis\12303.27A\12303.27A.motionsj OF THE PROTHONOTARY Hubert X. Gilroy, Esquire I.D. No. 29943 201I JAN 3 AM11:28 R. Christopher VanLandingham, Esquire CUMBERLAND COUNTY' I.D. No. 307424 PENNSYLVANIA MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants YORK ROAD PROFESSIONAL : IN THE COURT OF COMMON PLEAS OF OFFICES, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2010-2461 CIVIL TERM SUZANNE DIEHL, and : IN EQUITY NICHOLAS PALLANTE and BRENDA PALLANTE, husband and wife, Defendants DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW, come the Defendants, Suzanne Diehl, Nicholas Pallante and Brenda Pallante, by and through their attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and file this motion for summary judgment averring as follows: 1. The moving parties are Suzanne Diehl, an adult: individual residing at 110 West Springville Road, Boiling Springs, Pennsylvania, and Nicholas Pallante and Brenda Pallente, adult individuals residing at 917 Petersburg Road, Carlisle, Pennsylvania (herein collectively referred to as "Defendants") 2. The responding party is York Road Professional Offices, LLC, a Pennsylvania limited liability company with a principal place of business located at 26 West High Street, Carlisle, Pennsylvania (herein referred to as "Plaintiff") 3. The pleadings are closed in this case. 4. There is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report. The claims in this action arose from a negotiation for the sale of commercial lots located on York Road in South Middleton Township, Pennsylvania (herein referred to as the "Property"). Defendants were the owners of the Property' and Plaintiff was the prospective buyer. 6. On April 4, 2008, Plaintiff and Defendants (herein collectively referred to as the "Parties") entered into an agreement of sale for the Property which is attached hereto as Exhibit "A" and incorporated herein by reference (herein referred to as the "Agreement of Sale"). By addendum to the Agreement of Sale the Parties agreed that settlement would occur not later than April 1, 2009. 7. By a second addendum to the Agreement of Sale, which is attached hereto as Exhibit "B" and incorporated herein by reference (herein referred to as "Second Addendum"), the Parties agreed to extend the settlement date to on or before December 31, 2009. Defendants informed Plaintiff, by a letter from their attorney Christopher E. Rice (herein referred to as "Counsel for Defendants") dated December 16, 2009, which is attached to Defendants' Answer as Exhibit "A" and incorporated herein by reference, that Defendants were "adamant about settling on or before December 31, 2009, and [were] not interested in any further extensions." 9. By letter dated December 22, 2009, which is attached to Defendants' Answer as Exhibit "B"and incorporated herein by reference, Plaintiff informed Defendants that Plaintiff had been unable to secure third-party financing and requested seller financing from Defendants in order to purchase the Property. ' The original owners of the Property were Defendant Suzanne Diehl and her mother-in- law Genevieve Diehl. Genevieve Diehl transferred her share of the Property to her daughter Defendant Brenda Pallante and son-in-law Defendant Nicholas Pallante once suit was filed, and the Pallantes accepted any obligation of Genevieve Diehl regarding the litigation 10. Counsel for Defendants negotiated terms of seller-financing with Plaintiff through a letter dated December 23, 2009 and attached to Defendants' Answer as Exhibit "C," whereby Defendants wanted, among other things, a term of two years and the personal guarantees of the partners and spouses. 11. Plaintiff responded in a letter dated December 24, 2009, attached to Defendants' Answer as Exhibit "B," requesting a term of two and one half years and stating that the "[p]ersonal guarantees of the partners and spouses are not acceptable." 12. On December 29, 2009, counsel for the Parties negotiated the terms of seller financing via telephone. Counsel for Defendants memorialized the negotiated terms in a letter to Plaintiff dated December 29, 2009, which is attached hereto as Exhibit "C" and incorporated herein by reference, and closed the letter to Plaintiff stating "[t]he above is being forwarded to our clients to confirm the accuracy of the terms. Please contact us as soon as possible so that we can arrange settlement." 13. The Parties never agreed on the terms of seller financing. 14. In its Complaint Plaintiff requests that this Court order and direct the Defendants to provide seller financing on the terms and conditions Plaintiff alleges were agreed to by the Parties. 15. Plaintiff and Counsel for Defendants negotiated terms of an agreement for seller financing, but never reached an agreement on that issue. 16. Plaintiff does not claim that there was a written agreement executed by the parties, because one does not exist. 17. There was also no verbal agreement, because Counsel for Defendants made it clear that he was only negotiating when he wrote to Plaintiff stating "[t]he above is being forwarded to our clients to confirm the accuracy of the terms," in his December 29, 2009 letter to Plaintiff. 18. While Defendants deny that an agreement for seller financing was ever reached, even if an agreement had been reached between Plaintiff and Counsel. for Defendants, such agreement would not be binding on the Defendants. 19. It is well-settled in the Commonwealth that an attorney may not bind his clients without express authority from his clients to do so. Reutzel v. Douglas, 582 Pa. 149, 154, 870 A.2d 787, 790 (2004). 20. Counsel for Defendants admitted under oath at a deposition that he did not have express authority to bind Defendants to the terms of the seller financing. (Deposition of Christopher E. Rice, October 15, 2010 at 52, 64-65). A true and correct copy of the deposition transcript is attached hereto as Exhibit "D" and incorporated herein by reference. 21. According to Counsel for Defendants, Donald Diehl, husband of Defendant Suzanne Diehl and son of prior owner Genevieve Diehl ("Original Parties"), was communicating with Counsel for Defendants on behalf of the Original Parties, and Counsel for Defendants received instructions from him. (Deposition of Christopher E. Rice, October 15, 2010 at 16-18). 22. Donald Diehl stated under oath at his deposition that Counsel for Defendants was never given and never had authority to bind Defendants. (Deposition of Donald E. Diehl, October 15, 2010 at 17-18). A true and correct copy of the deposition transcript is attached hereto as Exhibit "E" and incorporated herein by reference. 23. Even if an agreement had been reached between Plaintiff and Counsel for Defendants, which Defendants and Counsel for Defendants deny, Counsel for Defendants could not have bound Defendants to the agreement without express authority to do so. Counsel for Defendants never had express authority to bind Defendants and therefore, no agreement was ever made between Plaintiff and Defendants regarding seller financing. 24. In the alternative, Plaintiff requests in its Complaint that this Court declare the Agreement of Sale null and void and order and direct the Defendants to refund to Plaintiff the $20,000.00 nonrefundable deposit, together with interest; to pay Plaintiff the sum of $45,759.89 for all Professional Services and filing fees; to pay Plaintiff any and all additional sums for Professional Services, which have not yet been billed; and to direct Plaintiff to deliver copies of all documents represented by the Professional Services to the Defendants. 25. There is no legal basis to declare the Agreement of Sale null and void. The Plaintiff's entire Complaint is premised on the fact that the Agreement of Sale is legal and binding. 26. There is no basis for, and no claim has been made., that the Defendants breached the Agreement of Sale. WHEREFORE, Defendants respectfully request this Court grant summary judgment in their favor and against Plaintiff, and dismiss all claims against Defendants with prejudice. Respectfully submitted, MARTSON LAW OFFICES By Hubert X. Gilroy, E?'Pre I.D. No.29943 R. Christopher VanLandingham, Esquire I.D. No. 307424 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Dater- ?1 Attorneys for Defendants EXHIBIT "A" STANDARD AGREEMENT FOR THE SALE OF VACANT LAND This lorm recommended wtd approved for, but not restricted to use by, the members of the Pennsylvania Association of REALTORS•L (PAR) A/S-?'L SELLER'S BUSINESS RELATIONSHIP WITH PA LICENSED BROKER BROKER(Company) NONE-REFERENCE HEREIN TO SELLER'S BROKER PHONE :ADDRESS SHALL,IF APPLICABLE,MEAN SELLER'S ATTORNEY FAX _ LICENSEE(S) Designated Agent? BROKER IS THE AGENT FOR SELLER. OR (if checked below): ? Yes ? No Broker is NOT the Agent for Seller and is a/an: ? AGENT FOR BUYER ? TRANSACTION LICENSEE BUYER'S BUSINESS RELATIONSHIP WITH PA LICENSED BROKER BROKER (Company) NONE-REFERENCE HEREIN TO BUYER'S BROIER PHONE .%DDRESS SHALL,IF APPLILCABLE MEAN BUYER'S ATTORNEY FAX LICENSEE(S) Designated Agents? ? Yes ? No BROKER IS THE AGENT FOR BUYER. OR (if checked below): Broker is NOT the Agent for Buyer and is a/an: ? AGENT FOR SELLER ? SUBAGENT FOR SELLER ? TRANSACTION LICENSEE When the saute Broker is Agent for Seller and Agent for Buyer, Broker is a Dual Agent. All of Broker's licensees are also Dual Agents I A LESS there are separate Designated Agents for Buyer and Seller. If the same Licensee is designated for Seller and Buyer, the Licensee isa Dual Agent. i I . This Agreement, dated April 04, 2008 , is between SELLER(S) Genevieve A. Diehl Suzanne Diehl called "Seller," and BUYER(S) Kronenberg and Saidis, a Pennsylvania Partnership or Assigns Y called "Buyer." 2. PROPERTY (12-06) Seller hereby agrees to sell and convey to Buyer, who agrees to purchase: ALL THAT CERTAIN lot or piece of ground with buildings and improvements thereon erected, if any, known as: Lot No. 71, 72, 73 and 74 of Jonathan Park commercial lots on York Road / in the Township of South Middleton I County of Cumberland in the Commonwealth of Pennsylvania. Identification (e.g., Tax ID #; Parcel 12 #: Lot, Block, Deed Book, Page, Recording Date) 3 Deed Book 279, Page 1761, Parcel Nos. 40-23-0592-086; 40-23-0592-087; 40-23-0592-088 and 40-23-0592-089 14 3. TERMS tA) Purchase Price Three Hundred One Thousand i which will be paid to Seller by Buyer as follows: U. S. Dollars which I . Cash or check at signing this Agreement: S ?. Cash or check within 10 days of the execution of this Agreement: Non-Refund. Deposit S 10,000.00 S -' I 4. Cash or cashier's check at time of settlement: S 291, 000.00 TOTAL S - 301,000.00 _ 131 Deposits paid by Buyer within 30 DAYS of settlement will be by cash or cashier's check. Deposits, regardless of the form of =1 I a\ nu nt utd the person designated as payee, will be paid in U.S. Dollars to Broker for Seller (unless uthem ise stated here). -' N\ ho \\ ill retain deposits in an escrow account until consummation or termination of this Agreement in conformity with all applicable laws and regulations. Any check tendered as deposit monies may be held uncashed pending the acceptance of this Agreement. 10 Seller's written approval to be on or before: April 08, 2008 at 5:00 P.M. i DI Settlement to be on Addendum or before if Buyer and Seller a-rcc. L:) COM e\ance From Seller will be by fee simple deed of special warranty unless otherwise stated here: PREPARED BY: Robert C. Saldis, 5-''L St ;nd srC Agreement For The Sale Of Vacant Land, Revised 12/06. Pennsylvania Association of REALTORS© F IGRT PENNSYLVANIA ASSOCIATION OF REALTORS) 2006 R :, it .AST`' Sortwa3re, J2008, Version 6.16. Software Registered to: Robert C. Saidis, Saidis, Flower & Lindsay 1; r i 04/04/08 14:14:52 Pa_ e 1 of 14 _ (F) Payment oft ransfer taxes will be divided equal I y between Buyer and Seller unless otherwise stated here: 4 (G) At time of settlement, the following will be pro-rated on a daily basis between Buyer and Seller, reimbursing where applicable: current taxes (see Notice Regarding State and Local Taxes); rents; interest on loan assumptions; water and/or sewer fees. if any: refuse fees; cable television fees and other similar charges. The charges are to be pro-rated for the period(s) covered. Seller will pay up to and including the date of settlement; Buyer will pay for all days following settlement, unless otherwise stated here: 4o d. FIXTURES AND PERSONAL PROPERTY (5-01) ,! (A) vNICIL .' Va?t,\tla?s\sklr?aa??t?cb t ,?a1?e\aYn?C'?ttlo?lt>e?i??Oar1r\abar?V.?ib?tane'drib`tnc?at?? bAh"\AMtt#cr&W 4' (B) V?EW?EUkdt??(?nbi.aactldd\Hy?ell>zry?\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ 44 i> (C) ` ?iL?lll1lml4b\riuC?tarle??t)d?ttc s?\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ 3(, \\\\\\\\\\\\\\\\\\\\\\\\\\???????????\\\\\\\\\\\\\\`1\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ 47 5. DATES/TIM E IS OF THE ESSENCE (9-05) (A) The settlement date and all other dates and times referred to for the performance of any of the obligations of this Agreement are 4) the essence ofthis Agreement and are binding. `u (B) For purposes of this Agreement, number of days will be counted from the date of execution, excluding the day this Agreement was executed and including the last day of the time period. The Execution Date of this Agreement is the date when Buyer and Seller have indicated full acceptance of this Agreement by signing and/or initialing it. All changes to this Agreement should be initialed and dated. `4 (C) The settlement date is not extended by any other provision of this Agreement and may only be extended by mutual written agreement of the panics. (D) Certain time periods are pre-printed in this Agreement as a convenience to the Buyer and Seller. Any pre-printed time periods are negotiable and may be changed by striking out the pre-printed text and inserting a different time period acceptable to all parties. 5,? 6. FINANCING CONTINGENCY (12-06) ?v ® WAI VED. This sale is NOT contingent on financing, although Buyer may still obtain financing. 00 ? ELECTED I (A) This sale is contingent upon Buyer obtaining financing as follows: I. AMOUnt of loan $ 2. Minimum Tetra years 3. Type: ? Land Acquisition Only ? Land Acquisition and Construction ? Other /,- 4. Interest rate %; however, Buyer agrees to accept the interest rate as may be committed by the lender, not os to exceed a maximum interest rate of %. 5. Discount points, loan origination, loan placement and other fees charged by the lender as a percentage of the loan (excluding any -) insurance premiums and VA funding fee) not to exceed % (0% if not specified) of the loan. 1 The interest rate(s) and fee(s) provision in paragraph 6(A) are satisfied if the lender(s) gives Buyer the right to guarantee the interest ^'_ rate(s) and fee(s) at or below the maximum levels stated. Buyer gives Seller the right, at Seller's sole option and as permitted by law and the lender(s), to contribute financially, without promise of reimbursement, to the Buyer and/or the lender(s) to make the 74 above terms available to Buyer. (B) Within days (10 if not specified) from the Execution Date of this Agreement, Buyer will make a completed, written loan application to a responsible lender according to the terms above. Broker for Buyer, if any, otherwise Broker for Seller, is authorized to communicate with the lender for the purposes of assisting in the ban process. (C) Should Buyer furnish false or incomplete information to Seller, Broker(s? or lender(s) concerning Buyer's legal or financial status, or fail to cooperate in good faith in processing the financing application, which results in the lender(s) refusing to approve a financing commitment, Buyer will be in default of this Agreement. ?-! (D) I. Financing commitment date . If Seller does not receive a copy of Buyer's financing; commitment(s) by this date, Buyer and Seller agree to extend the financing commitment date until Seller terminates ?3 this Agreement by written notice to Buyer. ?,4 2. ( poll receiving a financing commitment, Buyer will promptly deliver a copy of the commitment to Seller. 3. Seller may terminate this Agreement in writing after the loan commitment date, if the financing commitment(s): a. k not valid until the date of settlement, OR b Is conditioned upon the sale and sett lementofany other property, OR c. Does not satisfy al I the terms as stated in paragraph 6 (A). OR d. Contains any other condition not specified in this Agreement that is not satisfied and/or removed in writing by the lender(s) within 7 DAYS after the commitment date in paragraph 6 (D) (1), other than those conditions that are ru,tOmariIN satisfied at or near settlement, such as obtaining insurance and confirming employment status. ' 4. 11' this Agreement is terminated pursuant to paragraphs 6 (D) (1) or (3), or the loan(s) is not obtained for settlement. all depo,it monies Neill be returned to Buyer according to the terms of paragraph 22 and this Agreement will be VOID. Buffer \?ill Ix responsible for any costs incurred by Buyer for any inspections or certifications obtained according to the terms of this PREPARED BY: Robert C. Saidis, 6-VL Standard Agreement For The Sale Of Vacant Land, Revised 12/06. Pennsylvania Association of REALTORSO ,' ,P',,RiCHT PENNSYLVANIA ASSOCIATION OF REALTORSO2006 FAST6 Soitwfre, 02008. Version 6.16. Software Registered to: Robert C. Saidis, Saidis, Flower & Lindsay ?- ), f 04/04/08 13:38:55 // fia?e 2 of 14 Agreement, and any costs incurred by Buyer for: (1) Title search, title insurance and/or mechanics' lien insurance, or anv fee /o for cancellation; (2) Flood insurance and/or fire insurance with extended coverage, mine subsidence insurance, or any tee for 9' cancellation; (3) Appraisal fees and charges paid in advance to the lender(s). `/S (E) Seller Assist ® NOT APPLICABLE I t!! ? APPLICABLE. Seller will pay: 1 u I ? S or % of the Purchase Price, maximum, toward Buyer's costs as acceptable by the lender(s). I?i2 ? i u3 7. WAIVER OF CONTINGENCIES (9-05) 104 If this Agreement is contingent on Buyer's right to inspect and/or repair the Property, or to verify insurability, environmental 1 o; conditions, boundaries, certification, zoning classification or use, or any other information regarding the Property, Buyer's failure i06 to exercise any of Buyer's options within the times set forth in this Agreement is a WAIVER of that contingency and Buyer ! 1)7 accepts the Property and agrees to the RELEASE in paragraph 24 of this Agreement. 1wS S. INSPECTIONS (9-05) Itl9 (,A) Seller will provide access to insurers' representatives and, as may be required by this Agreement, to surveyors, municipal officials. I I u and inspectors. If Buyer is obtaining financing, Seller will provide access to the Property to appraisers and others reasonably required I I 1 by lender(s). Buyer may attend any inspections. 2 (B) Buyer and/or anyone on the Property at Buyer's direction or on Buyer's behalf, will leave the Property in ithe same condition as when they arrived unless otherwise agreed upon by the parties. Buyer bears the risk of restoring or repairing the Property or reimbursing Seller for any loss of value. i I (C) Buyer may make a pre-settlement walk-through inspection of the Property. Buyer's right to make this inspection is not waived by any i lo other provision of this Agreement. 1 17 (D) All inspectors, including home inspectors, are authorized by Buyerto provide a copy of any inspection report to Broker for Buyer. 1 18 (E) Seller has the right, upon request, to receive without charge a copy of any inspection report from the party for whom it was prepared. 1 19 9. STATUS OF WATER (12-06) 12o (A) CONNECTION TO OFF-PROPERTY WATER SOURCE CONTINGENCY 121 ? NOT APPLICABLE. An off-site water source is not available for the Property. 122 ® WAIVED. Buyer ackowledges that Buyer has the option to make this Agreement contingent on determining that the terms of 123 con necti ng the Property to an off-site water source through South Middleton Authority i24 (Name of Service Provider) are acceptable to Buyer. Buyer WAIVES THIS OPTION and agrees to the RELEASE in paragraph 24 125 of this Agreement. 126 ? ELECTED. Contingency Period: days (15 is not specified) from the Execution Da e of this Agreement. 127 1. Within the Contingency Period, Buyer, at Buyer's expense, may choos o determin to of connecting the Property to I'-S an off-site water source available through (Name of Service Provider 129 If the terms of connection are not acceptable to Buyer, within the Con ngency Perio B er will: 130 a. Accept the Property and agree to the RELEASE in paragraph 24 of this Agreem t, O 131 b. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of 132 paragraph 22 of this Agreement, OR 133 c. Enter into a mutually acceptable written agreement with Seller as acceptable to the lender(s), ifany. 134 If Buyer and Seller do not reach a written agreement within the Contingency Period and Buyer does not terminate this 135 Agreement by written notice to Seller within that time, Buyer will accept the Property and agree to the terms of the 136 RELEASE in paragraph 24 of this Agreement. 137 (B) ON-SITE WATER SERVICE INSPECTION CONTINGENCY I ;S ® NOT APPLICABLE. Property is not served by an on-site water source. 139 ? WAi VED. Property is served by an on-site water source. Buyer acknowledges that Buyer has the option to obtain an on-site water 140 service inspection of the Property. BUYER WAIVES THIS OPTION and agrees to the RELEASE in paragraph 24 of this 141 Agreement. 142 ? ELECTED. Contingency Period: days (15 if not specified) from the Execution Date of this Agreement. 143 1. Within the Contingency Period, Buyer, at Buyer's expense, may obtain an inspection of the quality and/or quantity of the 144 on-site water system from a properly licensed or otherwise qualified water well testing company. If required by the inspection company, Seller, at Seller's expense, will locate and provide access to the on-site water system. 140 Sel Ier also agrees to restore the Property, at Seller's expense, prior to settlement. I 3. If Buyer is not satisfied with the condition of the water system as stated in amy written inspection report(s), within the 1 4,? Contingency Period Buyer will: 49 a. Accept the Property with the information stated in the rport(s) and agree to the RELEASE in paragraph 24 of this Agreement, OR b. Present the report(s) to Seller with a Written Corrective Proposal ("Proposal") listing corrections and'orcredits desired by Buyer. The Proposal may, but is not required to, include the name of a properly licensed or qualified professional to perform the corrections requested in the Proposal. provisions for payment. including retests, and a projected date for I 4 completion of the corrections. Buyer agrees that Seller will not he held liable for corrections that do not comply \\ith .` ` lender or governmental requirements if performed in a workmanlike manner according to the terms of Buyer's Proposal. or by a contractor selected by Buyer. I> (1) Within days (7 if not specified) of receiving Buyer's Proposal, Seller will inform Buyer in writing of 14S Seller's choice to: PREPARED BY: Robert C. Saidis, -VL. Standard Agreement For The Sale Of Vacant Land, Revised 12106. Pennsylvania Association of REALTORS-5 PYRIGHT PENNSYLVANIA ASSOCIATION OF REALTORS8 2006 r'..,,siFASTa Spftwar?, 02008, Version 6.16. Software Registered to: Robert C. Saidis, Saidis. Flower & Lindsay 04/04/0814:14:36 /y.P`ee3of 14 (a) Satisfy the terms of Buyer's Proposal, OR uu (b) Credit Buyer at settlement for the costs to satisfy the terms of Buyer's Proposal, as acceptable to the lender(s). if !'' i any, OR I n' (c) Not satisfy the terms of Buyer's Proposal and not credit Buyer at settlement for the costs to satisfy the terms of 3 Buyer's Proposal. i o4 (2) if Seller agrees to satisfy the terms of Buyer's Proposal or to credit Buyer at settlement as specified above, Buver accepts the Property and agrees to the RELEASE in paragraph 24 of this Agreement. r, (3) If Seller chooses not to satisfy the terms of Buyer's Proposal and not to credit Buyer at settlement as specified above. or if Seller fails to choose any option within the time given, Buyer will, within days (5 if not specified): (,s (a) Accept the Property with the information stated in the report(s) and agree to the RELEASE in paragraph 24 of 't19 this Agreement, OR o (b) Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to I the terms of paragraph 22 ofthis Agreement, OR _'- (c) Enter into a mutually acceptable written agreement with Seller, as acceptable to the lender(s), if any. If Buyer and Seller do not reach a written agreement during the time specified, and Buyer does not terminate this Agreement by written notice to Seller within that time, Buyer will accept the Property and agree to the RELEASE in paragraph 24 of this Agreement. IC')SITE WATERSERVICE APPROVAL CONTINGENCY NOT APPLICABLE. The Property has an existing water service and Buyer is not seeking approval to install an on-site water ?_. system. ,'/ t WAI VED. Buyer understands and acknowledges there may be no developed" water system for the Property and that Buyer has the i III • 'I / option to make this Agreement contingent on receiving municipal approval for the installat' n of an on-site water system. BUYER 1 IV WAIVES THIS OPTION and agrees to the RELEASE in paragraph 24 of this Agreement. 1 ?'? ? ELECTED. Contingency Period: days (15 if not specified) from the Exec too this e 196 I N3 1. Within the Contingency Period, Buyer will make a completed, written application for municipal approval for the installation 1 S 4 of an on-site water system from (municipality). Buyer wil l pay for 13 applications, legal representation, and any other costs associated with the application and approval process. 2. If the municipality requires tha application to be signed bythe current owner, Seller agrees to do so. l 3. If final, unappealable approval is not obtained by , Buyerwill: a. Accept the Property and agree to the RELEASE set forth in paragraph 24 of this Agreement, OR b. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms I 90 of paragraph 22 of this Agreement, OR 191 c. Enter into a mutually acceptable written agreement with Seller as acceptable to the lender(s), if any. 1 if Buyer and Seller do not reach a written agreement before the time for obtaining final approval, and Buyer does not ?? terminate the Agreement of Sale by written notice to Seller within that time, Buyer will accept the Property and agree 1,)4 to the terms of the RELEASE in paragraph 24 of this Agreement. i'/?, 10. STATUS OF SEWER (12-06) 11)0 (A) Sel let- represents that Property is served by: 19- ® Off-Property Sewage Disposal System (Public Sewer) 196 ? Individual On-Lot Sewage Disposal System (See Sewage Notice 1) ? Individual On-Lot Sewage Disposal System in Proximity to Well (See Sewage Notice 1; see Sewage Notice 4, if applicable) ? Ten-acre Permit Exemption (See Sewage Notice 2) 1 ? Holding Tank (See Sewage Notice 3) 't12 ? None (See Sewage Notice 1) ?its ? None Available (See Sewage Notice 5 or Sewage Notice 6, as applicable) ?!1-1 ? 11)5 (B) INDIVIDUAL ON-LOT SEWAGE DISPOSAL INSPECTION CONTINGENCY '00 ® NOT APPLICABLE. The Property is not served by an individual on-lot sewage disposal system. I' ? WAIVED. Buyer acknowledges that Buyer has the option to request an inspection of the individual on-lot sewage disposal systemm. 20S BUYER WAIVES THIS OPTION and agrees to the RELEASE in paragraph 24 of this Agreement. -'It'd ? ELECTED. Contingency Period: days (15 ifnot specified) from the Execution Date ofthis Agreement. 1 I. Within the Contingency Period, Buyer, at Buyer's expense, may obtain an inspection of the individual on-lot sewage ' I 1 disposal system from a qualified, professional inspector. = 2. If required by the inspection company, Seller, at Seller's expense, will locate, provide access to and empty the individual on-lot sewage disposal system. Seller also agrees to restore the Property, at Seller's expense, prior to settlement. = 14 3. If the inspection report reveals defects that do not require expansion or replacement of the existing individual on-lot sewage disposal system, Buyer will, within the Contingency Period, notify Seller in writing that Buyer will: a. Accept the Property with the information stated in the report(s) and agree to the RELEASE in paragraph 24 of this - Agrcement, OR b. Present the report(s) to Seller with a Written Corrective Proposal ("Proposal") listing corrections and/or credits desired = - ' by Buyer. The Proposal may, but is not required to, include the name of a properly licensed or qualified professional to ='t perform the corrections requested in the Proposal, provisions for payment, including retests, and a projected date for -=1 completion ofthe corrections. Buyer agrees that Seller will not be held liable for corrections that do notcomplywith lender or govermental regirements if performed in a workmanlike manner according to the ternms of Buyer's Proposal, or by a PREPARED BY: Robert C. Saidis, Standard Agreement For The Sale Of Vacant Land, Revised 12/06. Pennsylvania Association of REALTORSO 'l RIGHT PENNSYLVANIA ASSOCIATION OF REALTORSO2006 r,AST d; Software. 02008. Version 6.16. Software Registered to: Robert C. Saidis, Saidis, Flower & Lindsay ~ 1 04/04/08 13:38:55ge 4 of 14 '23 contractor selected by Buyer. "Y (I) Within days (7 if not specified) of receiving Buyer's Proposal, Seller will inform Buyer in writing of -'25 Seller's choice to: '11(a) Satisfy the terms of Buyer's Proposal, OR -- (b) Credit Buyer at settlement for the costs to satisfy the terms of Buyer's Proposal, as acceptable to the lender(s), if -15 any, OR -' (c) Not satisfy the terms of Buyer's Proposal and not credit Buyer at settlement for the costs to satisfy the terms of Buyer's Proposal. (2) If Seller agrees to satisfy the terms of Buyer's Proposal or to credit Buyer at settlement as specified above, BUVCI- -' accepts the Property and agrees to the RELEASE in paragraph 24 of this Agreement. (3) if Seller chooses not to satisfy the terms of Buyer's Proposal and not to credit Buyer at settlement as specified above, '34 or if Seller fails to choose any option within the time given, Buyer will, within days (5 if not specified): 3 ` (a) Accept the Property with the information stated in the report(s) and agree to the RELEASE in paragraph 24 of '') this Agreement, OR (b) Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to -'' the terms of paragraph 22 of this Agreement, OR (c) Enter into a mutual ly acceptable written agreement with Seller, as acceptable to the lender(s), if any. -' 1) If Buyer and Seller do not reach a written agreement during the time specified, and Buyer does not terminate L i this Agreement by written notice to Seller within that time, Buyer will accept the Property and agree to the RELEASE in paragraph 24 of this Agreement. 4. If the inspection report reveals the need to expand or replace the existing individual on-lot sewage disposal system, Seller may, '44 within 25 days of receiving the inspection report, submit a Written Corrective Proposal ("Proposal") to Buyer. The Proposal 143 will include, but not be limited to, the name of the company to perform the expansion or replacement; provisions for payment. --' *f including retests; and a projected completion date for corrective measures. Within 5 DAYS of receiving Seller's Proposal, or if no Proposal is provided within the time given, Buyer will notify seller in writing of Buyer's choice to: -'46 a. Agree to the terms of the Proposal, if any, accept the Property and agree to the RELEASE in paragraph 24 of this -'49 Agreement, OR b. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of -'> I paragraph 22 of this Agreement, OR c. Accept the Property and the existing system and agree to the RELEASE in paragraph 24 of this Agreement, and, it' required by any lender(s) and/or any governmental authority, correct the defects before settlement or within the time `+ required by the lender(s) and/or governmental authority, at Buyer's sole ex nse, and with 1; s Pe permission and access to the Property given by Seller. Permission and access may not be unreasonably withheld by Seller. If Seller denies Buyer '?!> permission and/or access to correct the defects, Buyer may within 5 DAYS of Seller's denial, terminate this Agreement bN written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 22 of this ' ,? Agreement. DIVIDUAL ON-LOT SEWAGE DISPOSAL INSTALLATION CONTINGENCY 2oO NOT APPLICABLE. The Property has an existing sewage disposal system. '() AIVED. Buyer understands and acknowledges that Buyer has the option to make this Agreement contingent on receiving -'G municipal approval for the installation of an individual on-lot sewage disposal system. BUYER WAIVES THIS OPTION and 2o3 agrees to the RELEASE in paragraph 24 of this Agreement. 'o4.r --.'-? ELECTED. Contingency Period: days (15 ifnot specified) from the Execution Date ofthis Agreement, ,t I. Within the Contingency Period, ? Buyer or ? Seller will make a completed, written application for municipal approval 'O0 for the installation of an individual on-lot sewage disposal system from 267 (municipality). Buyer will pay for application, legal representation, and any other costs associated with the application and 2o8 approval process. 2t,`) 2. If the municipality requires the application to be signed bythe current owner, Seller agrees to do so. r 3. If final, unappealable approval is not obtained b -1 Y Buyer will: a. Accept the Property and agree to the RELEASE set forth in paragraph 24 of this Agreement, OR b. Terminate this Agreement, by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 22 of this Agreement, OR c. Enter into a mutually acceptable written agreement with Seller, as acceptable to the lender(s), if any. If Buyer and Seller do not reach a written agreement before the time of obtaining final approval, and Buyer does not ' t teminate this Agreement by written notice to seller within that time, Buyer will accept the Property and of the RELEASE in paragraph 24 of this Areement. agree to the terms D) CONNECTION TO OFF-LOT SEWAGE DISPOSAL SYSTEM CONTINGENCY ? SOT :\I'PLIC'A BLE. An off-site sewage disposal system is not available forthe property. ="' ® \\!.-\I\ ED. Buyer acknowledges that Buyer has the option make this Agreement contingent on determining that the ternis of ' connecting the property to an off-lot sewage disposal sytem through South Middleton Authority (Ser%ICC Provider) are acceptable to Buyer. Buyer WAIVES THIS OPTION and agrees to the RELEASE in paragraph 24 of this Agreement. -,4 ? ELECTED. Contingency Period: days (15 ifnot specified) from the Execution Date ofthis Agreement. I A; Within the Contingency Period, Buyer, at Buyers expense, may choose to determine whether the terms of connecting the '\u Property to an off-site sewage system through: PREPARED BY: Robert C. Saidis, ccc, S-11 Standard Agreement For The Sale Of Vacant Land, Revised 12/06. Pennsylvania Association of REALTOR&D y? _+'T RIGHT PENNSYLVANIA ASSOCIATION OF REALTORS@ 2006 •_„r.~STfrare, ©2008, Version 6.16. Software Registered to: Robert C. Saidis, Saidis, Flower & Lindsay if l_.\> namdinu +z•za- .e?. ?±% (Service Provider) are acceptable to Buyer. If the terms of connection are not acceptable to Buyer, within the Contingency Period '-? Buyer will: 1. Accept the Property and agree to the RELEASE in paragraph 24 of this Agreement, OR -'` 2. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 22 of this Agreement, OR 3. Enter into a mutually acceptable written agreement with Seller as aceptable to the lender(s), if any. If Buyer and Seller do not reach a written agreement within the Contingency Period, and Buyer does not terminate '`14 this Agreement by written notice to Seller within that time, Buyer will accept the Property and agree to the terms of the RELEASE in paragraph 24 of this Agreement. '90 11. ENVIRONMENTAL AUDIT & PROPERTY INSPECTIONS (1-98) A) SeI ler represents and warrants that Seller has no knowledge, except as listed below, of whether: 2`?5 I . The Property has been contaminated by any substance in any manner which requires remediation; _2199 2. The Property contains any wetlands, flood plains, or any other environmentally sensitive areas, development of which is limited or 31111 precluded by law; 11 3. The Property contains any substance, the removal or disposal of which is subject to any law or regulation; 3()2 4. Any law has been violated in the handling or disposing of any material waste or the discharge of any material into the soil, air. surface water, or ground water; u4 5. The Property contains underground fuel or liquid storage tanks. ?0 EXCEPTIONS: 'oo None ;??, cB) ?an?r??hn?ti??r?>et?Baiaag??rt?du?ek:??????????????????????????????????????????????????????????? 311) '21N? 3111 kilaN ??la,ivlllbat?tla'aAe??r, ?t? „t?tto??bt?b??r tie'rl?bi?aan?d?lat\tbir?ti?dtlokt?bl?ule??n?kaiWaatlt?lkbkat'ctbi,br 311 312 (C) Seller agrees to indemnify and to hold Broker harmless from and against all claims, demaihds, or liabilities, including attorneys fees 313 and court costs, which arise from or are related to the environmental condition or suitability of the Property prior to, during, or after 314 Seller's occupation ofthe Property including without limitation any condition listed in paragraph II (A). 3 i 5 (D) ENVIRONMENTAL AUDIT/INSPECTION CONTINGENCY I o ? WAIVED. Buyer understands that Buyer has the option to request audits and inspections ofthe Property. BUYER WAIVES THIS I OPTION and agrees to the RELEASE set forth in paragraph 23 of this Agreement. Buyer reserves the right to make a 31S pre-settlement inspection of the Property. 31 `? ? ELECTED. Contingency Period: days (15 if not specified) from the Execution Date of this Agreement. 32u 1. Within the Contingency Period, Buyer, at Buyers expense, has the option to have the following audits or inspections 321 completed bya licensed or otherwise qualified professional (check the inspections that Buyer will order): 322 ? Environmental Hazards 323 ? Underground Storage Tanks 324 ? Property Boundary/Square Footage Verification/Delineation 3'_5 ? Flood Plain Verification/Delineation ''16 ? Wetlands Verification/Delineation 32 a Specific Property Inspection limited to 3'_9 2. If Buyer is not satisfied with any condition of the Property as stated in any written inspection report(s), within the 130 Contingency Period Buyer will: 331 a. Accept the Property with the information stated in the report(s) and agree to the RELEASE in paragraph 24 of this 332 .Agreement, OR 3 b. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 22 of this Agreement, OR i ` c. Enter into a mutually acceptable written agreement with Seller, as acceptable to the lender(s), if any. 13f' If Buyer and Seller do not reach a written agreement Within the Contingency Period and Buyer does not terminate 3 17 this Agreement by written notice to Seller within that time, Buyer will accept the Property and agree to the terns of the RELEASE in paragraph 24 of this Agreement. 3 ?9 12. ZONING CLASSIFICATION (5-01) 10 Failure of this Agreement to contain the zoning classification (except in cases where the property land each parcel thereof, if subdividablc coned solely or primarily to permit single-family dwellings) shall render this Agreement voidable at the option of the Buyer, and, il, -' \ oiled. any deposits tendered by the Buyer w ill be returned to the Buyer without any requirement for court action. < Zoning Classification: PRD -',4 13. ZONING CONTINGENCY (10-06) 345 ® W';AIVED. "k) ? ELECTED. Contingency Period: DAYS (15 ifnot specified) from the Execution Date of this Agreement. ,-t (A) Within the Contingency Period, Buyer, at Buyer's expense, may verify that Buyer's proposed use of the Property as H, PREPARED BY: Robert C. Saidis, ;-VL, Standard Agreement For The Sale Of Vacant Land, Revised 12/06. Pennsylvania Association of REALTORSO _ P','R1GHT PENNSYLVANIA ASSOCIATION OF REALTORSO 2006 ,<! FA$T , Software, 02008, Version 6.16. Software Registered to: Robert C. Saidis, Saidis, Flower & Lindsay u ?,,, (r,) /,JCL) 04/04/08 13:38:55 i gage 6 of 14 '1 49 3 5 2 353 '54 35S ,w) ?u l 3a2 r„ 3o4 305 14. ;t,- 'os Soo ??u 71 -2 is permitted under the current zoning classification for the Property and is not prohibited by any other governmental land use restrictions, (B) If Buyer's proposed use of the Property is not permitted, within the Contingency Period Buyer will make a formal written application for zoning approval, variance, non-conforming use, or special exception from (municipality) to use the Property as (proposed use). Buyer will pay for applications, legal representation, and any other costs associated with the application and approval process. i . If the municipality requires the application to be signed by the current owner, Seller agrees to do so. 2. If final, unappealable approval is not obtained by Buyer wilI: (a) Accept the Property with the current zoning and agree to the RELEASE, in paragraph 24 of this Agreement, OR (b) Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 22 of this Agreement, OR (c) Enter into a mutually acceptable written agreement with Seller as acceptable to the lender(s), if any. If Buyer and Seller do not reach a wtitten agreement before the time for obtaining final approval, and Buyer does not terminate this Agreement by written notice to Seller within that time, Buyer will accept the Property and agree to the terms of the RELEASE in paragraph 24 of this Agreement. LAND USE RESTRICTIONS OTHERTHAN ZONING (7-01) (A) S No Known Restrictions I B) ? The Property, or a portion of it, is preferentially assessed for tax purposes under the following Act(s) (See Land Use Restrictions Notices): ? Farmland and Forest Land Assessment Act (Clean and Green Program) ? Open Space Act (preservation of land used for farming, forest, water supply, or open space) ? Agricultural Area Security Law (development rights) ? Other 3 ; 3 (C) Seller has no knowledge of any covenants, subdivision restrictions or other restrictions affecting the Property unless otherwise stated 3 4 here: None 3_5 (D) Seller has no knowledge of any rights to timber, crops or minerals, except coal, that do not transfer with the Property unless otherwise 376 stated here: None ,7 7 (E) Buyer acknowledges that any land use restrictions associated with the Property's enrollment in the Clean and Green Program or under 37S the Open Space Act or any other program identified in paragraph 14, are encumbrances upon the Property. Buyer agrees that delivery -) of title subject to these encumbrances will not violate Seller's duty under paragraph 14 (A) of this Agreement. u (F) Buyer and Seller have determined the consequences that may result from the sale or a change in the use ofthe Property, or any portion of it. 3S2 15. COAL NOTICE (Where Applicable) 3 ?3 \ARI'$\O0kNnt\NV\ MA\A Y3A1\' Khh,\(K0NVCY\ N°B "'F&R\ V M= M MM TM xM\xmMIA `(WAI IAM MN T& W 3, 4 \AAPV MV\ WDMIAm V'It1E\ SIN MM Y.WWWA Tlr\StG' mm M itUV\T,IQ V(li,l>tBJIA V"A \TM WAIM ?DA ` WN&R8? `AF 3 ,? 5 \%M VW W\ W\Y\ N)kW\'fiP(B, VVMPr.)5'V£\I5Qr#1), M16P('h M UMVM kh,A `6VCH\A6?Alv\AN(01 IN V Alt CID Y1Q1X,\OAM1 W 3S6 \WkY\RAstY, ATID\'fitYB,VMXCX\OA 'kifCVaANWW4A \MAUVU'6E\laWaUJItAG\t9OtOt'N•MVTXNMU W M WSW 10A NA NO - 3S7 \(Vlois\,blihA )6\skNfowl \ k w\rk'dr)a*k ?tblrk 8 \t# SWI)h V\&"tM Aht\dt\lltk,\M Y W \P.\994.. \V1 tjtdrV>cWA&a& ! VM M inlay \At 38S \L)t;\dbla\tlika We\rYRhf\drbi?etstlJ»\ kMillWetidsltktnJWoVkMalinltlih4hk"A&)i;,bbb`tAA t%Aordde*V1e 8b")n\nj &j\& I S9 \I)rWekrt 8 \MA VW\Ak L\ ldh8 \d \,\iM's)?mclcaa& Eby\& ?iu kh VokhLl \v)ttm \lle\ mvhim \oY\thh, \e>cdt)ob#ia \ih&t Ats\ik\fbh \cbkh \i\,\s 390 \,A,I d,AI d&\catttls &Cie\tbNfik?Iuy3 LA&A olr#p1>ai4 VkhtMorhdihibM dfY9eltidrt\)v#&AA&1A111 WDb AM h&SWskkhde\aWth&Lklid 391 \O,M ,ht\,drt\A &k A)Mpltil $)(,\i`9 AN $1t? &VOM "NbA?Wdh6,:K Jk%-tKdr\Md11WdWAN>rbt'AAa\Ad wA&8 1011&l i h \ \ \ \ \ \ \ 392 16. NOTICES, ASSESSMENTS, & CERTIFICATES OF OCCUPANCY (12-06) ,03 (A) Seller represents. as of the date Seller signed this Agreement, that no public improvement, condominium or homeowner association 3v4 assessments have been made against the Property which remain unpaid, and that no notice by any government or public authority 315 has been served upon Seller or anyone on Seller's behalf, including notices relating to violations of zoning, housing, building, safety 39O or fire ordinances that remain uncorrected, and that Seller knows of no condition that would constitute violation of any such 397 ordinances that remain uncorrected, unless otherwise specified here: t,)\ None > I B) Seller knows of no other potential notices (including violations) and assessments except as follows: None 1!iI ((') In the e\ent any notices (including violations) and'or assessments are received after Seller has sided this Agreement and before -2 settlement. Seller will provide a copy of the notices and/or assessments to Buyer and will notify Buyer in writing within 5 DAYS ot• rcccix ing the notices andior assessments that Seller will: + )4 1. Full3 comply with the notices and'or assessments at Seller's expense before settlement. If Seller fully complies with the notices 41 > and or assessments, Buyer accepts the Property and agrees to the RELEASE in paragraph 24 ofthis Agreement, OR 411i 2. \ot comply with notices and/or assessments. If Seller chooses not to comply with notices and,or assessments, or fails within _40- the time given to notify Buyer whether Seller will comply, Buyer will notify Seller in writing within 5 days that Buyer 40 w ill: -tug a. Comply with the notices and/or assessments at Buyer's expense, accept the Property, and agree to the RELEASE in paragraph PREPARED BY: Robert C. Saidis, S-VL. Sit rdard Agreement For The Sale Of Vacant Land, Revised 12/06. Pennsylvania Association of REALTORSO ) ':: vPYRIGHT PENNSYLVANIA ASSOCIATION OF REALTORS® 2006 R--;:IFASTV Software, ©2008, Version 6.16. Software Registered to: Robert C. Saidis, Saidis, Flower & Lindsay [? namama Vs•au•?r _,10Age 7 of 14 4lr) ail 414 -4 15 0 Y1- -4 I -41') 4,3 4-' 4 -4'_ 4`0 43() -431 -432 433 434 -435 24 of this Agreement, OR b. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 22 of this Agreement. If Buyer fails to respond within the time stated in paragraph 16 (C) (2) or fails to terminate this Agreement by written notice to Seller within that time, Buyer will accept the Property and agrees to the RELEASE in paragraph 24 of this :agreement. I D) Access to a public road may require issuance of a highway occupancy permit from the Department of Transportation. 'ri,rLE, SURVEY'S, & COSTS (9-05) (A) The Property is to be conveyed with good and marketable title as is insurable by a reputable title insurance company at the regular rates, free and clear of all liens, encumbrances, and easements, EXCEPTING HOWEVER the following: existing deed restrictions, historic preservation restrictions or ordinances, building restrictions, ordinances, easements of roads, easements visible upon the ,round. casements of record; and privileges or rights of public service companies, if any. (43) Buyer will pay for the following: (1) Title search, title insurance and/or mechanics' lien insurance or fee for cancellation; (2) Flood insurance, fire insurance with extended coverage, mine subsidence insurance, or any fee for cancellation; (3) Appraisal fees and charges paid in advance to mortgage lender(s); (4) Buyer's customary settlement costs and accruals. (C) Any survey or surveys which may be required by the title insurance company or the abstracting attorney for preparing an adequate legal description of the Property (or the correction thereof), will be obtained and paid for by Seller. Any survey or surveys desired by Buyer or required by the mortgage lender will be obtained and paid for by Buyer. (D) It Seller is unable to give a good and marketable title and such as is insurable by a reputable title insurance company at the regular rates, as specified in paragraph 17(A), Buyer will: I. Accept the Property with such title as Seller can give, with no change to the purchase price, and agree to the RELEASE in paragraph 24 of this Agreement, OR 2. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 22 of this Agreement. Upon termination, Seller will reimburse Buyer for any costs incurred by Buyer for any inspections or certifications obtained according to the terms of this Agreement, and for those items specified in paragraph 17(B) items (1), (2), (3) and in paragraph 17(C). PLANNED COMMUNITY (HOMEOWNER ASSOCIATION) NOTICE FOR PURPOSES OF RESALE ONLY (12-06) ® NOT APPLICABLE. ? APPLICABLE. Property is part of a planned community as defined by the Uniform Planned Community Act (See Definition of Planned Community.) (A) Seller is required to fumish Buyer with a copy of the Declaration (other than plats and plans), the bylaws, the rules and regulations of the association, and a Certificate containing the provisions set forth in §5407(a) ofthe Act. (B) Within 15 DAYS from the Execution Date of this Agreement, Seller, at Seller's expense, will request from the association a Certificate of Resale and any other documents necessary to enable Seller to comply with the relevant Act. The Act provides that the association is required to provide these documents within 10 days of Seller's request. (C) Seller +N ill promptly deliver to Buyer all documents received from the association. Under the Act, Seller is not liable to Buyer for the failure of the association to provide the Certificate in a timely manner, nor is Seller liable to Buyer for any incorrect information provided by the association in the Certificate. (D) The Act provides that Buyer may declare this Agreement VOID at any time before Buyer receives the association documents and for 5 days after receipt, OR until settlement, whichever occurs first. Buyer's notice to Seller must be in writing; upon Buyer declaring this Agreement void, all deposit monies will be resumed to Buyer according to the terms of paragraph 22 of this Agreement. (E) If the association has the right to buy the Property (right of first refusal), and the association exercises that right, Seller will reimburse Buyer for any costs incurred by Buyer for any inspections or certifications obtained according to the terms of the Agreement, and any costs incurred by Buyer for: (1) Title search, title insurance and/or mechanics' lien insurance, or any fee for cancellation; (2) Flood insurance and/or fire insurance with extended coverage, mine subsidence insurance, or any fee for cancellation; (3) Appraisal tees and charges paid in advance to mortgage lender(s) MAINTENANCE & RISK OF LOSS (9-05) (A) Seller will maintain the Property, grounds, fixtures, and any personal property specifically listed in this Agreement in its present condition, normal wear and tear excepted. (B) If any system or appliance included in the sale ofthe Property fails before settlement, Seller wil I 1. Repair or replace the failed system or appliance before settlement, OR 2. Provide prompt written notice to Buyer of Seller's decision to: a. Credit Buyer at settlement for the fair market value of the failed system or appliance, as acceptable to the mortgage lender(s). ifan,,,0R b. Not repair or replace the failed system or appliance, and not credit Buyer at settlement for the fair market value of the failed system or appliance. 3. If the Seller does not repair or replace the failed system or appliance or agree to credit Buyer for its fair market value, or if Scl ler tails to notify Buyer of Seller's choice, Buyer will notify Seller in writing within 5 DAYS or before settlement, whichever is earlicr, that Buyer N+ill: a. Accept the Property and agree to the RELEASE in paragraph 24 ofthis Agreement, OR b. 'rerntinate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 22 of this Agreement (0 Seller bears risk of loss from fire or other casualties until settlement. if any property included in this sale is destroyed and not replaced. BU\el' Mll: I . Accept the Property in its then current condition together with the proceeds of any insurance recovery obtainable by Seller, OR _' Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of 17 436 18. 43 7 43S 439 44i ) 441 442 4-43 4-44 -+45 446 4-47 44S -4.41) -4?o 43 1 -43? -4 :3 -43-4 -;; fi 4i6 459 4(,U 4(,l 4o2 iU3 4o4 -4(.J 4-I Y 'Y 19. PREPARED BY: Robert C. Saidis, /L. Standard Agreement For The Sale Of Vacant Land, Revised 12106. Pennsylvania Association of REALTORSO PYRIGHT PENNSYLVANIA ASSOCIATION OF REALTORSO 2006 !,FAST:--i Software, 02008, Version 6.16. Software Registered to: Robert C. Saidis, Saidis, Flower 8 Lindsay 04/04/08 13:38:55 1'Age 8 of 14 4-0 paragraph 22 of this Agreement. -- 20. POSSESSION (12-06) 1 5 (A) Possession is to be delivered by title, keys and: 47O I. Physical possession to vacant Property free of debris, with all structures broom clean, at day and time of settlement, AND/OR 4,?t1 2. Assignment of existing lease(s), together with any security deposits and interest, at time of settlement, if Property is leased at the 4, 1 execution of this Agreement unless otherwise specified in this Agreement. 4?2 t B) Buyer will acknowledge existing lease(s) by initialing said lease(s) at time of execution of this Agreement. ( C) Seller will not enter into any new leases, extension of existing leases, or additional leases for the Property without the written consent -1114 of Buyer. 415 21. ASSIGNIVIENT (9-05) This Agreement is binding upon the parties, their heirs, personal representatives, guardians and successors, and to 4,S0 the extent assignable, on the assigns of the parties hereto. Buyer will not transfer or assign this Agreement without the written consent of -111, Seller unless otherwise stated in this Agreement. 18 22. TERMINATION & RETURN OF DEPOSITS (9-05) ;Sl) (A) Where Buyer terminates this agreement pursuant to any right granted by this Agreement, all deposit monies paid on account of 490 purchase price will be returned to Buyer and this Agreement will be VOID. The broker holding the deposit monies may only release 41) i the deposit monies according to the terms of a fully executed written agreement between Buyer and Seller and as permitted by the 492 Rules and Regulations of the State Real Estate Commission. tv 3 (B) If there is a dispute over entitlement to deposit monies, a broker is not legally permitted to determine if a breach occurred or which 494 party is entitled to deposit monies. A broker holding the deposit monies is required by the Rules and Regulations of the State Rral Estate Commission to retain the monies in escrow until the dispute is resolved. In the event of litigation over deposit monies, a broker I I distribute the monies according to the terms of a final order of court or a written agreement of the parties. Buyer and Seller agree 4,)- that if any broker or affiliated licensee is joined in litigation regarding deposit: monies, the attorneys' fees and costs of the broker(s) 4,)S and licensee(s) will be paid bythe party joining them. 499 23. REAL ESTATE RECOVERY FUND(9-05) ;00 \A\pw?§t?c?\iaelcbJ?rjt?)trldAuli?t>!M\&"Urk\&iyVelabi+I&MahlatnJe\dHt?ii?Ad?? h?Ik1J?i?jltld??fnar#t1a??ib3t?a\Adstb3?l?ran ?ehhAslatc\ ;ul \ireVW1 e\"`ao `tdxrhtld??tt\i>sde?ie>sdrt`t?d?olo\at\&kl h\e11 1?e>st)t{CVWn W`ttbA?et?$Whb\h?a\rAbl?n\at)abPe\tb?cbN?c?t jr?ld arlt\a?ftlelt ?u2 \&.,1,lthsttltgVVN'I,dgLh'at\d,A 6ikbk\kWdWs&N4&-hdl>etle\c'1dtI ts\koLkW\I'tlMV1&N\(VI'A)\I&NN S8?bk?A6011\8,212 :INI\(W?i&NA ?u3 \N&`nkN iMi-1)\a>Jal(X1?7y483-t48S4?(b>v)sldeWeloif?llJa>ot?a?\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ 51)4 24. RELEASE (9-05) iu5 Buyer releases, quit claims and forever discharges SELLER, ALL BROKERS, their LICENSEES, EMPLOYEES, and any iuo OFFICER or PARTNER of any one of them and any other PERSON, FIRM, or CORPORATION who may be liable by or through them, from any and all claims, losses or demands, including, but not limited to, personal injury and property damage ?;o and all of the consequences thereof, whether known or not, which may arise from the presence of termites or other wood-boring u) insects, radon, lead-based paint hazards, mold, fungi or indoor air quality, environmental hazards, any defects in the individual .) on-lot sewage disposal system or deficiencies in the on-site water service system, or any defects or conditions on the Property. Should Seller be in default under the terms of this Agreement, or in violation of any seller disclosure law or regulation, this release does not deprive Buyer of any right to pursue any remedies that may be available under law or equity. This release will survive 13 settlement. 14 25. REPRESENTATIONS (9-05) 13 (A) All representations, claims, advertising, promotional activities, brochures orplans of any kind made by Seller, Brokers, their licensees, 51o employees, officers, or partners are not a part of this Agreement unless expressly incorporated or stated in this Agreement. This I' Agreement contains the whole agreement between Seller and Buyer, and there are no other terms, obligations, covenants, 5 i representations, statements or conditions, oral or otherwise, of any kind whatsoever concerning this sale. This Agreement will not be 511) altered, amended, changed, or modified except in writing executed by the parties. 2u (B) Unless otherwise stated in this Agreement, Buyer has inspected the Property (including fixtures and any personal property 1 specifically listed herein) before signing this Agreement or has waived the right to do so, and has agreed to purchase the property IN ITS PRESENT CONDITION. Buyer acknowledges that Brokers, their licensees, employees, officers, or partners 523 have not made an independent examination or determination of the structural soundness of the Property, the age or condition .;24 of the components, environmental conditions, the permitted uses, or of conditions existing in the locale where the Property is ??3 situated; nor have they made a mechanical inspection of any of the systems contained therein. 52o (C) Any repairs required by this Agreement will be completed in a workmanlike manner. 17 (D) Broker(s) have provided or may provide services to assist unrepresented parties in complying with this Agreement. N 26. DEFAFLT (9-05) ''. i A) Seller has the option of retaining all sums paid by Buyer, including the deposit monies, should Buyer: 1. Fail to make any additional payments as specified in paragraph 3; OR ?. Furnish false or incomplete information to Seller, Broker(s), or any other party identified in this Agreement concerning Buyer's Icgal or financial status, OR (? 3. \'iolatc or fail to fulfill and perform any other terms or conditions of this Agreement. ;a (B) l nless otherwise checked in paragraph 26 (C), Seller may elect to retain those sums paid by Buyer, including deposit monies. I . On account of purchase price; OR ;c, 2. As monies to be applied to Seller's damages; OR 3. As liquidated damages for such breach. 5,,? (C) ® SELLER IS LIMITED TO RETAINING SUMS PAID BY BUYER, INCLUDING DEPOSIT MONIES, AS LIQUIDATED DAMAGES. l) (D) If Seller retains all sums paid by Buyer, including deposit monies, as liquidated damages pursuant to paragraph 26 (B) or (C). Bu\cr PREPARED BY: Robert C. Saidis, ?b L Standard Agreement For The Sale Of Vacant Land, Revised 12/06. Pennsylvania Association of REALTORS® °'r RIGHT PENNSYLVANIA ASSOCIATION OF REALTORS 2006 Ra,:IFA$TO $of)wate, 02008, Version 6.16. Software Registered to: Robert C. Saidis, Saidis, Flower & Lindsay ?e9of14 3u,""rM 1?t. 04/04/0813:38:55 c>uo.i _ IF X41 and Seller are released from further liability orobligation and this Agreement is VOID. X42 27. MEDIATION (9-05) X43 V?1\\`I,#lcls\b1Nek?\?SC1bR?ckAdRi\p?et?gkapYt\Zvi(by,\?ta?ei?Rr#d? if )tJv?11? w1r#it??ll\cYiY?3t?sb?rbla\??thhi?t`tth?C'?t1s?e\fttdrr\th\s\? ebrl?allt X44 \\\?tb\1\c\CRJtbk\tk\ e?arld'ar1de\Jv?tR?tRe\`RLIeY\a\iii\Plrbd?dlik?r\df\t1oRVioYrle\Shclek?lMbt`ttb\13t?j?eits\61i?s?5lbVic\SbR,tiail\Sy?tbl4t\1A?t1y 45 \ \ \ \a?ic?klhi?t\rle'acat lea 1Nrat?t\rlaadi ?tin\i\al a kt?gloRdA?i?tb?i'at'tle3 ivYll Rd ailaatli? ?(?ebYtlfl?t4R?tTobY? ?t?t?\Naada u?at y.\ \ \ \ \ \ \ \ \ \ -+6 8\\9,L"Narld&VtKKa`bindMMINkka,\aka1UhaA daaYtl,WlhcYRi?dra?ras\dfWANhMl `6e K&*`Ebl1+e\aL?0 s\DaYikk&Pwouktbla i47 \\\\?ykr•Ctn1\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\'\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ ->• ? YC\ \,?j\a?gkc?ekiekk ib\t1\Adi?tR a ?S?atits\drkY?itlik k?? irk ?rbRtkh ? 1A?tAeYtlebk Jv?ll\ ?titati\rR 3dttiAritAn`t.\ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ 549 (b1`GI\1i 1?\7VbYNlSW?AnVuyA.\13aM hh?1'SatWcWMMt1at13N,kRM?'u*a ckbdsb k*bW&VAfeOdkbk Wdkld'cspWea i%& ;io \\\\\\ a?KBAAd\Mi`gkAariMfbhb?,?b1; >ay?aaa>sa,\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ ;;1 28. SPECIAL CLAUSES (5-01) (A) The following are part of this Agreement if checked: ?5 ? Sale & Settlement of Other Property ? Settlement of Other Property Contingency Addendum (PAR Form SOP) ? 54 Contingency Addendum (PAR Form SSP) ? Tenant-Occupied Property Addendum (PAR Form TOP) `?? ? Sale & Settlement of Other Property Contingency ® All references to Seller's or Buyer's Broker shall with Right to Continue Marketing Addendum ? refer to Seller's or Buyer's atty.,where applicable (PAR Form SSP-CM) (13) SPECIAL PROVISIONS (IF ANY): N)o Buyer and Seller acknowledge receipt of a copy of this Agreement at the time of signing. col ,;o2 NOTICE TO PARTIES: WHEN SIGNED, THIS AGREEMENT IS A BINDING CONTRACT. Return by facsimile transmission 503 (FAX) of this Agreement, and any addenda and amendments, beating the signatures of all parties, constitutes acceptance by the parties. X04 Parties to this transaction are advised to consult an attorney before signing if they desire legaladvice. ;(,; X06 ? Buyer has received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code §35.336. ?G- ? Buyer has received a statement of Buyer's estimated closing costs before signing this Agreement. i0? ? Buyer has read and understands the notices and explanatory information set forth in this Agreement. _iG91 ? Buyer has received the Deposit Money Notice (for cooperative sales when Broker, for Seller is holding deposit money) before signing this Agreement. 572 BUYER'S MAILING ADDRESS: 26 West High Street, Carlisle, PA 17013 53 ;4 WITNESS Itronenberg and 3isidi Pennsylvania Partnership or A ?i s BUYER v DATE y' By: Robert(C. Sai is 70 Seller has received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code §35.336. -7 Seller has received a statement of Seller's estimated closing costs before signing this Agreement. 75 Seller has read and understands the notices and explanatory information set forth in this Agreement. ??U SELLER'S MAILING ADDRESS: 4 East High Street, Carlisle, PA 17013 4ITNESS WITNESS SELLER 4 U _ .. %1 DATE GenevAve A. Diehl -ter SELLER DATE Suza a is 2?sor PREPARED BY: Robert C. Saidis, vL. Standard Agreement For The Sale Of Vacant Land, Revised 12106. Pennsylvania Association of REALTORS@ P 'RIGHT PENNSYLVANIA ASSOCIATION OF REALTORSC 2006 ?•;: rFASTC? Software, 02008, Version 6.16. Software Registered to: Robert C. Saidis, Saidis, Flower & Lindsay WDENDUMUENDORSEMENT TO AGREEMENT OF SALE PROPERTY ASA Lot No. 71, 72, 73 and 74 of Jonathan Park, Parcel Nos. 40-23-0592-086; 40-23-0592-087; 40-23-0592-088 and 40-23-0592-089 SELLER Genevieve A. Diehl Suzanne Diehl Bt:1'ER Kronenberg & Saidis, a Pennsylvania Partnerhip, or Assigns DA'Z'E OF AGREEMENT April 4 2008 29. Settlement to be on or befo a any increase in the Federal Income Tax Capital Gains Rate or final approval of Buyer's land development plan by South Middleton Township, whichever is earlier, but in no case shall settlement occur later than April 1, 2009. 30. Seller agrees to assign all engineering work prepared by Dawood Associates through February 28, 2008 to Buyer. Any outstanding balance owed to Dawood shall be Seller's responsibility. Should this agreement terminate for any reason between Buyer and Seller, Buyer agrees to assign all engineering work prepared by Dawood Associates or any other engineering firm performed for Buyer to Seller without charge and will insure that any outstanding balances owed to any engineer or other company/individual are satisfied in full. 31. Seller reserves the right to sell the property in accordance with the laws governing 1031 tax free exchanges and Buyer agrees to cooperate with said request. 32. Buyer will maintain the property during the existence of the Agreement of Sale which includes, but is not limited to, lawn care (e.g. mowing the grass) as required by local ordinance. 33. Buyer shall, at its sole expense, keep and maintain a policy of comprehensive public liability insurance with a contractual liability endorsement that covers Buyer's indemnity obligation to Seller, which includes, but is not limited to, indemnifying Seller if and to the extent that any such loss, injury,' liability, damage or expense is caused by Buyer. The insurance policy shall name,Seller as an additional insured and afford protection in limits of not less than $1,000,000 for bodily injury or death in any one accident and not less than $1,000,000 for property damage. All insurance shall be effected under standard form policies issued by insurers of recognised responsibility to do business in the Commonwealth of Pennsylvania and having a national rating of A XI or better. Such policy shall become effective no later than two (2) days after the execution of this Agreement. 34. Buyer is a Pennsylvania partnership duly authorized to do business in Pennsylvania and the individual executing this document is authorized to do so on behalf of the partnership. `,.ll other terms and conditions of the said agreement shall remain unchanged and in full force and effect. WIT-NESS Kronenberg & Saidisl nnsylvania Partnerhip, or BUYER DATE By: Robirt C. eaidis Assig y Gtr PREPARED BY: Robert C. Saidis, r.. DDENDUM!ENDORSENIENT TO AGREEMENT OF SALE 9102. Pennsylvania Association of REALTORS© r :! t Pennsylvania Association of REALTORSG 1993 I',.ST,t: Software. 02008, Version 6.16. Software Registered to: Robert C. Saidis, Saidis, Flower & Lindsay /J n g- 1 of 2 v ., 1 WITNESS SELLER 'DATE Genevieve A. Diehl' WITNESS SELLER DATE Suza a ie ?? ob 5?50? PREPARED BY: Robert C. Saidis, „DDENDUM,ENDORSEMENT TO AGREEMENT OF SALE 9/02. Pennsylvania Association of REALTORSO) Pcinnb vania Associaf;on of REALTORS® 1993 FAST Sof W/- Ie 0008, Version 6.16. Software Registered to: Robert C. Saidis, Saidis, Flower & Lindsay J 04/04/08 13:36:15 Page 2 of 2 NOTICES AND INFORMATION COMMUNICATIONS WITH BUYER AND/OR SELLER ?1 hercver this Agreement contains a provision that requires or allows communicati on/delivery to a Buyer, said provision shall be satisfied by conununication/delivery to the Broker for Buyer, if any. If there is no Broker for Buyer, all such provisions may be satisfied only by runununication;delivery being made directlyto the Buyer, unless otherwise agreed to by the parties. 11 herc%cr this Agreement contains a provision that requires or allows communication/delivery to a Seller, said provision shall be satisfied by ,:onununicationrdelivcry to the Broker for Seller, if any. If there is no Broker for Seller, all such provisions may be satisfied only by communication del i% cry being made directly to the Seller, unless otherwise agreed to by the parties. NOTICE REGARDING STATE AND LOCAL TAXES \1 here Buyer and-'or Seller are responsible for payment of real estate taxes. the "periods covered" by the tax bills for purposes of prorating real estate !axes are as follows: Municipal Taxes: For all counties and municipalities in Pennsylvania, tax bills arc for the period January 1 to December 31. Jchool Taxes: For all school districts, other than the Philadelphia, Pittsburgh and Scranton school districts, the period covered by the tax bill is July I to June 30. For the Philadelphia, Pittsburgh and Scranton school districts, tax bills are for the period January I to December 31. Real Estate Assessment Notice: In Pennsylvania, taxing authorities (school districts and municipalities) and property owners may appeal the assessed value of a property at the time of sale, or at any time thereafter. A successful appeal by a taxing authority may result in a higher assessed value for the property and an increase in property taxes. Also, periodic county-wide property reassessments may change the assessed value of the property and result in a change in property tax. NOTICE TO BUYERS SEEKING FINANCING I he appraised value of the Property is used in determining the maximum amount of the loan and may be different from the purchase price and/or market value. NOTICE REGARDING CONVICTED SEX OFFENDERS (MEGAN'S LAW) The Pennsylvania General Assembly has passed legislation (often referred to as "Megan's Law," 42 Pa.CS. § 9791 et seq.) providing for community notification of the presence of certain convicted sex offenders. Buyers are encouraged to contact the municipal police department or the Pennsylvania State Police for information relating to the presence of sex offenders near a particular property, or to check the information on the Pennsylvania State Police Web site at www.pameganslaw.state.pa.us. PROPERTY & ENVIRONMENTAL INSPECTION NOTICES Flood Plains: If the Property is located in a flood plain, Buyer may be required to carry additional insurance NN ater Service: Buyer may elect to have the water service inspected by a professional water/well testing company. In addition, on-site water service systems may have to meet certain quality and/or quantity requirements set by the municipality or the lender. Electromagnetic Fields: Electromagnetic Fields (EMFs) occur around all electrical appliances and power lines. Conclusive evidence that EMFs puss health risks does not exist at present, and Pennsylvania has no laws regarding this issue. Environmental Hazards: The U.S. Environmental Protection Agency has a list of hazardous substances, the use and disposal of which are restricted by law. Generally, if hazardous substances are found on a property, it is the property owner's responsibility to dispose of them properly. For more information and a list of hazardous substances, contact U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Ave.. N.W., Washington, D.C. 20460, (202) 260-2090. N etlands: Wetlands are protected by both the federal and state government. Buyer may wish to have the Property inspected for wetlands by an .m ironmcntal engincerto determine if permits for plans to build, improve, or develop the property would be affected ordenied because of wetlands. SEWAGE NOTICES NOTICES PURSUANT TO THE PENNSVLN'ANIA SENVAGE FACILITIES ACT NOTICE 1: THERE IS NO CURRENTLY EXISTING COMMUNITY SEWAGE SYSTEM AVAILABLE FOR THE SUBJECT PROPERTY. Section 7 of the Pennsylvania Sewage Facilities Act provides that no person shall install, construct, request bid proposals for construction, alter, repair or occupy any building or structure for which an individual sewage system is to be installed, without first obtaining a permit. Buyer is advised by this notice that, before signing this Agreement of Sale, BLt\el- should contact the local agency charged with administering the Act to determine the procedure and requirements for obtaining a PREPARED BY: Robert C. Saidis, S-`, L Standard Agreement For The Sale Of Vacant Land, Revised 12/06. Pennsylvania Association of REALTORS@ _.f YRIGHT PENNSYLVANIA ASSOCIATION OF REALTORSO 2006 <-,:FASTJ Software, 02008, Version 6.16. Software Registered to: Robert C. Saidis, Saidis, Flower & Lindsay r !r tsu , ,r?si L?-'-a 04104/08 13:38:55 c Pa?e 11 of 14 permit for an individual sewage system. The local agency charged with administering the Act will be the municipality where the Property is located or that municipality working cooperatively with others. NOTICE 2: THIS PROPERTY IS SERVICED BY AN INDIVIDUAL SEWAGE SYSTEM INSTALLED UNDER THE TEN-ACRE PERMIT EXEMPTION PROVISIONS OF SECTION 7 OF THE PENNSYLVANIA SEWAGE FACILITIES ACT. (Section 7 provides that a permit may not be required before installing, constructing, awarding a contract for construction, altering, repairing or connecting to an individual sewage system where a ten-acre parcel or lot is subdivided from a parent tract after January 10, 1987.) Buyer is advised that soils and site testing were not conducted and that, should the system malfunction, the owner of the Property or properties serviced by the system at the time of a malfunction may be held liable for any contamination, pollution, public health hazard or nuisance which occurs as a result. NOTICE 3: THIS PROPERTY IS SERVICED BY A HOLDING TANK (PERMANENT OR TEMPORARY) TO WHICH SEWAGE IS CONVEYED BY A WATER CARRYING SYSTEM AND WHICH IS DESIGNED AND CONSTRUCTED TO FACILITATE ULTIMATE DISPOSAL OF THE SEWAGE AT ANOTHER SITE. Pursuant to the Pennsylvania Sewage Facilities Act, Seller must provide a history of the annual cost of maintaining the tank from the date of its installation or December 14, 1995, which ever is later. NOTICE 4: AN INDIVIDUAL SEWAGE SYSTEM HAS BEEN INSTALLED AT AN ISOLATION DISTANCE FROM A WELL THAT IS LESS THAN THE DISTANCE SPECIFIED BY REGULATION. The regulations at 25 Pa. Code §73.13 pertaining to minimum horizontal isolation distances provide guidance. Subsection (b) of §73.13 states that the minimum horizontal isolation distance between an individual water supply or water supply system suction line and treatment tanks shall be 50 feet. Subsection (c) of §73.13 states that the horizontal isolation distance between the individual water supply or water supply system suction line and the perimeter of the absorption area shall be 100 feet. NOTICE 5: THIS LOT IS WITHIN AN AREA IN WHICH PERMIT LIMITATIONS ARE IN EFFECT AND IS SUBJECT TO THOSE LIMITATIONS. SEWAGE FACILITIES ARE NOT AVAILABLE FOR THIS LOT AND CONSTRUCTION OF A STRUCTURE TO BE SERVED BY SEWAGE FACILITIES MAY NOT BEGIN UNTIL THE MUNICIPALITY COMPLETES A MAJOR PLANNING REQUIREMENT PURSUANT TO THE PENNSYLVANIA SEWAGE FACILITIES ACT AND REGULATIONS PROMULGATED THEREUNDER. NOTICE 6: A REQUIRED REVISION FOR NEW LAND DEVELOPMENT, OR AN EXCEPTION TO THE REQUIREMENT TO REVISE, OR A REQUIRED SUPPLEMENT HAS NOT BEEN APPROVED FOR THIS LOT. SEWAGE FACILITIES ARE NOT AVAILABLE FOR THIS LOT AND SEWAGE FACILITIES WILL NOT BE AVAILABLE, NOR MAY CONSTRUCTION BEGIN UNTIL SEWAGE FACILITIES PLANNING HAS BEEN APPROVED PURSUANT TO THE PENNSYLVANIA SEWAGE FACILITIES ACT AND REGULATIONS PROMULGATED THEREUNDER. LAND USE RESTRICTIONS NOTICES FARMLAND AND FOREST LAND ASSESSMENT ACT (CLEAN AND GREEN PROGRAM) 72 P.S. § 5490.1 et seq. Properties enrolled in the Clean and Green Program receive preferential tax assessments Notices Required by Seller: A Seller of Property enrolled in the Clean and Green Program must submit notice of the sale and any proposed changes i n the use of Seller's remaining enrolled Property to the County Assessor 30 days before the transfer of title to Buyer. Notices Required by Buyer: A Buyer of Property enrolled in the Clean and Green Program must submit notice of any proposed changes Buyer mends to make in the use of the Property being purchased to the County Assessor at least 30 days prior to undertaking any changes. Loss of Preferential Tax Assessment: The sale of Property enrolled in the Clean and Green Program may result in the loss of program enrollment Mid the loss of preferential tax assessment for the Property and/or the land of which it is a part and from which it is being separated. Removal from enrol Iment in the Clean and Green Program may result in the charge of roll-back taxes and interest. A roll-back tax is the difference in the amount of taxes paid under the program and the taxes that would have been paid in the absence of Clean and Green enrollment. The roll-back taxes arc charged iur each year that the Property was enrolled in the program, limited to the past 7 years. 8tjNer and Seller have been advised of the need to determine the tax implications that will or may result from the sale of the Property to Buyer or that may result in the future as a result in any change in use of the Property or the land from which it is being separated bv contacting the County Tax Assessment Office before the execution of this Agreement of Sale. OPEN SPACE ACT 32 P.S. § 5001 et seq. h s Act enables counties to enter into covenants with owners of land designated as farm, forest, water supply, or open space land on an adopted municipal. count. or regional plan for the purpose of preserving the land as open space. A covenant between the owner and county is binding upon ;,n 13u'Ner of the Property during the period of time that the coNenant is in effect (5 or 10 years). Covenants automatically renew at the end of the ,0%%211a11 period unless specific termination notice procedures are followed. PREPARED BY: Robert C. Saidis, v L Standard Agreement For The Sale Of Vacant Land, Revised 12/06. Pennsylvania Association of REALTORSO 1 JP`r'RIGHT PENNSYLVANIA ASSOCIATION OF REALTORSO 2006 ?.,,-, 1=,aSTJ Software, 02008, Version 6.16. Software Registered to: Robert C. Saidis, Saidis, Flower & Lindsay 04/nd/nA 11-AA 55 / ! LIB 12 of 14 BLi%er Ltcknowledges that the purchase of Property for which there is a covenant will not extinguish the covenant and that a change in the use of the i:,nd to any other use other than that designated in the covenant will constitute a breach. When a breach of the covenant occurs, the then-owner is required to pay roll-back taxes and interest. A roll-back tax is the difference in the amount of taxes paid and the taxes that would have been paid in the absence of the covenant. The roll-back taxes are charged for each year thatthe Propertywas subject to the covenant, limited to the past 5 years. Buyer has been advised of the need to determine the restrictions that will apply from the sale of the Property to Buyer and the tax iniplications that will or may result from a change in use of the Property, or any portion of it. Buyer is further advised to determine the term ofany covenant now in effect. DEFINITION OF A PLANNED COMMUNITY fhc L.niform Planned Community Act defines "planned community" as real estate with respect to which a person, by virtue of ownership of an I ntcrest in any portion of the real estate, is or may become obligated by covenant, easement or agreement imposed on the owner's interest to pay any amount for real property taxes, insurance, maintenance, repair, improvement, management, administration or regulation of any part of the real estate other than the portion or interest owned solely by the person. The term excludes a cooperative and a condominium, but a cooperative or condominium coati be part of a planned community. For the purposes of this definition, "ownership" includes holding a leasehold interest of more than 20 years. i neluding renewal options, in real estate. The term includes non-residential campground communities. Exemptions from the Uniform Planned Community Act - When a Certificate of Resale Is Not Required I'hc owner of a property located within a planned community is not required to furnish the buyer with a certificate of resale under the following ircunistunccs: A. I'hc Planned Community contains no more than 12 units, provided there is no possibility of adding real estate or subdividing units to increase the size ofthe planned community. B. The Planned Community is one in which all of the units are restricted exclusivelyto non-residential use, unless the declaration provides that the resale provisions are nevertheless to be followed. C'. The Planned Community or units are located outside the Commonwealth of Pennsylvania. D. The transfer of the unit is a gratuitous transfer. I-. The transfer of the unit is required by court order. I The transfer of the unit is by the government or a governmental agency. o. The transfer of the unit is the result of foreclosure or in lieu of foreclosure. Notices Regarding Public Offering Statements and Right to Rescission I t Scl let- is a Declarant of the condominium or planned community, Seller is required to furnish Buyer with a copy of the Public Offering Statement and its amendments. For condominiums, the delivery of the Public Offering Statement must be made no later than the date the buyer executes this Agreement. Buyer may cancel this Agreement within 15 days after receiving the Public Offering Statement and any amendments that materially and . d%ersely affects Buyer. For planned communities, the Declarant must provide the Buyer with a copy of the Public Offering Statement and its amendments no later than the date the Buyer executes this Agreement. Buyer may cancel this Agreement within 7 days after receiving the Public Offering Statement and any amendments that materially and adversely affect Buyer. MEDIATION DISPUTE RESOLUTION SYSTEM RULES AND PROCEDURES 1. Agreementof Parties The Rules and Procedures of the Dispute Resolution System (DRS) apply when the parties have agreed in writing to mediate under DRS. The written agreement can be achieved by a standard clause in an agreement of sale, an addendum to an agreement of sale, or through a separate written agreement. 2. Initiation of Mediation If a dispute exists, any party may start the mediation process by submitting a completed Request to initiate Mediation DRS Transmittal Form (Transmittal Form) to the local Association of REALTORSO (hereafter "Administrator"). The Transmittal Form should be available through the Administrator's office. The initiating party should try to include the following information when sending the completed Transmittal Form to the Administrator: a. A copy ofthe written agreement to mediate if there is one, OR a request by the initiating party to have the Administrator contact the other parties to the dispute to invite them to join the mediation process. b. The names, addresses and telephone numbers of the parties involved in the dispute, including the name of every insurance company known to have received notice of the dispute or claim and the corresponding file or claim number. C A brief statement of the facts of the dispute and the damages or relief sought. 3. Selection of Mediator Within five days of receiving the completed Transmittal Form, the Administrator will send each party to the dispute a copy of the Transmittal Form and a list of qualified mediators and their fee schedules. Each party then has ten days to review the list of mediators, cross off the name ofany mediator to whom the party objects, and return the list to the Administrator. The Administrator will appoint the first a% at lable mediator who is acceptable to all parties involved. \ mediator who has any financial or personal interest in the dispute or the results of the mediation cannot serve as mediator to that dispute. unless all parties are informed and give their written consent. 4. Mediation Fees Mediation fees will be divided equally among the parties and will be paid before the mediation conference. The parties ?r it I 1611 ow the pa}ment terms contained in the mediator's fee schedule. PREPARED BY: Robert C. Saidis, J S-VL. Standard Agreement For The Sale Of Vacant Land, Revised 12/06. Pennsylvania Association of REALTORSO UPYRIGHT PENNSYLVANIA ASSOCIATION OF REALTORS& 2006 r<<aIFASTkD Software. 02008, Version 6.16. Software Registered to: Robert C. Saidis, Saidis, Flower & Lindsay ? /? /'.- 7 04/04/OR 13 319465 / La 13 of 14 5. Time and Place of Mediation Conference Within ten days of being appointed to the dispute, the mediator will contact the parties and set the date. time and place of the mediation conference. The mediator must give at least twenty days' advance notice to all parties. The mediation con ferellcc should not be more than sixty days from the mediator's appointment to the dispute. 6. Conduct of Mediation Conference The parties attending the mediation conference will be expected to: a. Ha%e the authorityto enter into and sign a binding settlement to the dispute. b. Produce all information required for the mediator to understand the issues of the dispute. The information may include relevant written materials, descriptions of witnesses and the content of theirtestimony. The mediator can require the parties to deliver written materials and information before the date ofthe mediation conference. The mediator presiding over the conference: a. Will irnpartiallyconductan orderly settlement negotiation. b. Will help the parties define the matters in dispute and reach a mutually agreeable solution. C. Will leave no authorityto render an opinion, to bind the parties to his or her decision, or to force the partiesto reach a settlement. Formal rules of evidence will not apply to the mediation conference. Representation by Counsel Any party who intends to be accompanied to the mediation conference by legal counsel will notify the mediator and the other parties of the intent at least ten days before the conference. S. Confidentiality No aspect of the mediation can be relied upon or introduced as evidence in any arbitration, judicial or other proceeding. This includes, but is not limited to, any opinions or suggestions made by any party regarding a possible settlement; any admissions made during the course of the mediation; any proposals or opinions expressed by the mediator; and any responses given by any party to opinions, suggestions. or proposals. No privilege will be affected by disclosures made in the course of the mediation. Transcripts or recordings of the mediation wil I not be allowed without the prior, written consent of all parties and the mediator. Records, reports, and other documents received or prepared by the mediator or Administrator cannot be compelled byan arbitration, judicial, or other proceeding, with the exception of an agreement that was reached in the course of mediation and signed by all the parties. Neither the mediator nor the Administrator can be compelled to testify in any proceeding regarding information given or representations made either in the course ofthe mediation or in any confidential communication. 9. Mediated Settlement When a dispute is resolved through mediation, the mediator will put the complete agreement in writing and all parties tiN 111 sign the written agreement within ten days of the conclusion of the mediation conference. Every reasonable effort will be made to sign the written agreement at the end of the conference. Ip, Judicial Proceedings and Immunity NEITHER THE ADMINISTRATOR, THE MEDIATOR, THE NATIONAL ASSOCIATION OF REALTORS-R, THE PENNSYLVANIA ASSOCIATION OF REALTORSO, NOR ANY OF ITS MEMBER BOARDS, WILL BE DEEMED NECESSARY OR INDISPENSABLE PARTIES IN ANY JUDICIAL PROCEEDINGS RELATING TO MEDIATION UNDER THESE RULES AND PROCEDURES, NOR WILL ANY OF THEM SERVING UNDER THESE PROCEDURES BE LIABLE TO ANY PARTY FOR ANY ACT, ERROR OR OMISSION IN CONNECTION WITH ANY SERVICE OR THE OPERATION OF THE HOME SELLERS/HOME BUYERS DISPUTE RESOLUTION SYSTEM. PREPARED BY: Robert C. 5aidis, S-VL Standard Agreement For The Sale Of Vacant Land, Revised 12/06. Pennsylvania Association of REALTORSO PYRIGHT PENNSYLVANIA ASSOCIATION OF REALTORS(E) 2006 a:: FAST) Software, 02008, Version 6.16. Software Registered to: Robert C. Saidis, Saidis, Flower & Lindsay ' rI ti 1 e / d . i' 04/04/08 13:38:55 /J 14 of 14 EXHIBIT "B" Second Addendum To Agreement of Sale PROPERTY: Lot No. 71, 72, 73 and 74 of Jonathan Park, Parcel Nos. 40-23-0592-086; 40-23- 0592-087; 40-23-0592-088 and 40-23-0592-089. DATE OF ORIGINAL AGREEMENT OF SALE: April 4, 2008. THIS ADDENDUM made this SI 51-day of M*Oe ?f , 2009, by and between Genevieve A. Diehl and Suzanne Diehl, hereinafter referred to as "Seller" A N D York Road Professional Offices, LLC, a Pennsylvania limited liability company, hereinafter referred to as "Buyer". Buyer shall pay Seller an additional ten thousand dollar ($10,000.00) non-refundable deposit, which shall be applicable to the purchase price within five (5) business days from the execution of this Second Addendum by Seller. 2. The date for settlement is hereby extended to on or before December 31, 2009. 3. Buyer agrees to pay any increase in the capital gain tax incurred by the Seller over the current rate by reason of the extension of the settlement date. 4. In all other respects, the Standard Agreement for the Sale of Vacant Land, together with the First Addendum dated April 4, 2008, are hereby ratified, confirmed and approved. BUYER: YORK ROAD PROFE SIONAL OFFICES, LLC By: Robert-. Saidis, Member SELLER: EXHIBIT "C" W +` 4 MARTSON LSE M ARTSON LAW OFFICES 10 EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE (717) 243-3341 FAcsImiu (717) 243-1850 INTERNET www.martsotilawcom VIA E-MAIL gaidis(a sfl-law.com) Robert C. Saidis, Esquire SAIDIS, FLOWER & LINDSAY 26 West High Street Carlisle, PA 17013 LLIAMS OTTO `I'LROY & FALLER WILLIAM F. MARTSON JOHN B. Fo%rLER III DANIEL K. DEARDORFF THOMAS J. WILLIAM* IVo V. Caro III HUBERT X. Gum GEORGE B. FALLER JR.* lk w CK"MI December 29, 2009 DAVID A. FrrZSIMONS CHRISTOPHER E. RICE JENNIFER L SPEARS SETH T. MOSEBEY TRUDY E. FEHLINGER KATIE J. MAXWELL JACOB M. THEIS D CML TauL Sncuun RE: Diehl to Kronenberg and Saidis - Jonathan Park, Lots 71, 72, 73 and 74, South Middleton Township, Pennsylvania Our File No. 12303.27 Dear Bob: After our negotiations on December 29, 2009, it appears that we have reached the following agreement: 1. Settlement will occur by December 31, 2009. 2. Buyer will pay $10,000.00 at settlement to be applied towards the purchase price. 3. The Buyer will receive Seller Financing for the balance of the purchase price. The note will be for two years (December 31, 2011) with the option to extend for one additional year (December 31, 2012); provided, however, that Buyer must pay an additional $40,000.00, which will be applied to the purchase price, in order to exercise the option. 4. The interest rate for the first two years will be six (6%) percent and will increase to ten (10%) percent during year three if the option is exercised. 5. Personal/Unlimited Guarantees will be required of all partners which includes you, William Kronenberg, and Andrew Kronenberg. 6. Title Insurance will be issued by your office for the benefit of the Seller with the appropriate endorsements as determined by Seller. 7. Buyer may prepare all loan documents including a Note, Mortgage, Deed, Guaranties, Assignment of Contracts and any other documents deemed appropriate by Seller, which will be reviewed and approved by Seller's counsel. 8. All costs incurred by Seller, except for the transfer tax, will be paid for by Buyer. INFORMATION • ADVICE • ADVOCACY SM VIA E-MAIL (rsaidisaA-law.com) Robert C. Saidis, Esquire SAIDIS, FLOWER & LINDSAY December 29, 2009 Page 2 The above is being forward to our clients to confirm the accuracy of the terms. Please contact us as soon as possible so that we can arrange settlement. Thank you. Very truly yours, MARRTSON LAW OFFICES Christopher E. Rice CER/jad cc: Mr. and Mrs. Donald E. Diehl (via hand delivery) F WILEM(lienUU2303 Die1J\12303.27.rW INFORMATION • ADVICE • ADVOCACY 3M EXHIBIT "D" Q?Dpv 40 i D 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA YORK ROAD PROFESSIONAL OFFICES, LLC, PLAINTIFF VS SUZANNE DIEHL, NICHOLAS PALLANTE and BRENDA PALLANTE, husband and wife, DEFENDANTS DEPOSITION OF: TAKEN BY: NO. 2010-2461 CIVIL TERM CHRISTOPHER E. RICE PLAINTIFF BEFORE: TERESA. K. BEAR, REPORTER NOTARY PUBLIC DATE: OCTOBER 15, 2010, 10:34 A.M. PLACE: MARTSON LAW OFFICES 10 EAST HIGH STREET CARLISLE, PENNSYLVANIA GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 2 3 4 5 ?J 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 APPEARANCES: MANCKE, WAGNER & SPREHA BY: P. RICHARD WAGNER, ESQUIRE 2233 NORTH FRONT STREET HARRISBURG, PA 17110 717-234-7051 FOR - PLAINTIFF MARTSON LAW OFFICES BY: HUBERT X. GILROY, ESQUIRE 10 EAST HIGH STREET CARLISLE, PA 17013 717-243-3341 FOR - DEFENDANTS GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 3 1 2 3 4 5 6 7 8 9 10 11 12 • 13 14 15 16 17 18 19 20 21 22 23 24 25 TABLE OF CONTENTS W I T N E S S FOR PLAINTIFF Christopher E. Rice DIRECT CROSS REDIRECT 4 66 70 E X H I B I T RICE EXHIBIT NO. 1 - Memorandum dated 12/29/09 PRODUCED AND MARKED 13 GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved to the time of the trial. CHRISTOPHER E. RICE, called as a witness, being sworn, testified as follows: DIRECT EXAMINATION BY MR. WAGNER: Q Would you state your full name for the record, please. A Christopher E. Rice. Q And your profession, sir? A I am an attorney at Martson Law Offices. Q And that address, sir? A Is 10 East High Street, Carlisle, PA, 17013. Q And you are a practicing attorney licensed in the Commonwealth of Pennsylvania? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • D 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 A Yes. Q You have participated in -- if not personally as a witness, but as an attorney at depositions? A. Yes, as an attorney. Q And you're familiar with the purpose of a deposition, the fact if you want to consult with another lawyer you can do that? A Yes. Q And that any question asked of you and an answer given, it will be assumed that you are correctly answering the question and understand the question asked of you? A Yes. Q When did you pass the bar? A October of 2003. Q And how long have you been affiliated with the firm of Martson Law Offices? A May of 2002, I believe. Q And in your capacity as an attorney with that firm, did you become involved at some point with a piece of property in South Middleton Township known as Lot 71 through 74, Jonathan Park? A Yes. Q What was your first involvement, GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 please? A I believe I reviewed the agreement of sale back in 2008 entered into between Genevieve and Suzanne Diehl with York Road Professionals -- I think it's LLC. Q And do you recall how your review of that agreement came about? Who came to you, who brought you the agreement to review? A I do not. Q At that point in time, in reviewing that agreement, did you meet with any person or persons concerning that agreement, specifically the parties -- any of the parties to the agreement? A I don't remember. Q In reviewing that agreement in 2008, do you recall at some point during your review or after your review whether or not signatures were placed on the agreement by a Genevieve Diehl and a Suzanne Diehl? A I don't remember. Q You said you reviewed a purported agreement. I'll show you what appears to be a standard agreement for the sale of vacant land. It appears to have signatures at the end of a Genevieve Diehl and a Suzanne Diehl. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 i 1 2 3 4 5 6 • 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 And I'm going to ask you if you recall looking at that agreement prior to the execution by the parties. A Now, there is an addendum here. Are you including that as well? Q I will in a moment. A Okay. Q The basic agreement, absent the addendum, do you recall reviewing that agreement in 2008? A It looks familiar, but, again, it is a standard agreement for the sale of vacant land. But if it is for this property,, I was probably involved in the review. Q And do you know on whose behalf you were reviewing that agreement? A It would have been on behalf of the sellers. Q And the sellers were whom, please? A Genevieve and Suzanne Diehl. Q And do you have a recollection of either meeting with them or talking with them after your review and prior to the execution by Genevieve and Suzanne Diehl? A I do not recall. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • E 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 8 Q Would you in the normal course of your practice have met with them before allowing a client to sign a deal or to sign an agreement for the sale of property? A Yes. Q And do you think you followed your normal, ordinary course of business in either meeting with Genevieve and Suzanne Diehl or talking with them on the telephone? A I would think so. Q And you have no specific recollection either way of whether you did or whether you didn't, meet with them? A I do not recall. Q At some point after your review of the agreement, did you become aware that Genevieve and Suzanne signed that agreement? A Again, I don't recall, but I'm presuming they signed it, if those are their signatures, which I don't want to attest to, but it appears that they signed it. Q Okay, and -- MR. GILROY: I don't think that's in dispute. MR. WAGNER: Okay. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • 0 13 1 2 3 4 5 6 7 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 9 MR. GILROY: Do you think that's in dispute? A I don't. I just don't recall. MR. WAGNER: I understand. BY MR. WAGNER: Q Now, at some point in time there appears to have been an addendum that was signed that was attached to that agreement. Do you remember reviewing the addendum before it was signed? A Yes. Q And do you remember if you consulted with -- either in person or telephonically with Genevieve and/or Suzanne before they executed the addendum? A I don't recall. Q Is there any dispute that that addendum was signed by Genevieve and Suzanne Diehl? A I don't dispute it. I Q At some point after the agreement of sale was entered into, did you become aware that there were some additional issues regarding the consummation of the ultimate sale? A I'm not sure what you're asking. Q The agreement of sale, by its terms -- GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 10 • n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 and I'll ask you if you recall -- provided for settlement on or before December 31st, 2009. Do you remember that provision in the agreement? A Yes. Q And at some point did you -- A Well, let me correct that. Did you say the original agreement or the addendum? Q I'm sorry, the addendum provided for a settlement date on or before December 31st, 2009 -- A Yes. Q -- were you aware of that? Immediately i prior -- and when I say immediately, I'm talking 30 to 60 days prior to the 31st of December, 2009. Did the buyers of that property discuss with you the consummation of that sale? A No, not that I recall. Q Did there come a period of time that in December of 2009 negotiations :between you and the sellers were occurring concerning certain amendments to that addendum to the agreement of sale? A Yes. Q How did that come about from your recollection? A I recall actually contacting Bob Saidis GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 and wondering what was going to happen with settlement because I had not heard anything, and I believe it was mid December, and I was aware of the deadline. Q Do you know if you contacted him telephonically or by way of letter? A I think both. Q And what was the immediate result of that initial contact, if you know? A I believe what had happened was Bob indicated that they couldn't get financing and thereafter sent a proposal to us in writing with their dilemma and a request for an extension. Q Do you recall what your response to that proposal was? A I discussed it with Don Diehl. I relayed it to him and said were you in discussions with any of these parties and he indicated that I think Doc Kronenberg had talked to him in earlier December but nothing was resolved. And I believe he indicated they were not going to do any extensions. Q Don did? A Yes. Q At some point in time were there GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 t • 10 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 12 written proposals back and forth between you and Mr. Saidis concerning the extension of the addendum beyond December 31st, 2009? A I don't believe I ever wrote to him regarding an extension. Q Did you ever discuss terms or did you ever negotiate with Bob to extend the terms of that original agreement and the addendum for a period of time of two or three years beyond December of 2009? A I don't recall ever responding. I'm sure he requested that because that is what they wanted was an extension. And I believe that the Diehls probably only would have granted an extension if money was paid, additional nonrefundable money, and I don't know if that was even on the table. Q Do you remember whether there was exchanges of communications in writing between you and Mr. Saidis during the latter part of December of 2009 with specific terms for the extension of the settlement on the Jonathan Park development? A I wouldn't say there were specific terms. We had gone back and forth with numerous communication via phone and then would document some in writing, but they were more just general GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 r? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 terms. Q I'm going to show you what I've previously shown your counsel and that is a memorandum. MR. WAGNER: And we're going to mark this as Rice Deposition Number 1, Exhibit Number 1. (Memorandum dated 12/29/09 produced and marked as Rice Exhibit No. 1.) BY MR. WAGNER: Q That purports to be a verbatim voice mail that was received by Mr. Saidis on the 29th of December at I believe 1:15 p.m.. purportedly from you. I will represent to you, as I did to Mr. Gilroy, that Mr. Saidis has retained that voice mail and this is purportedly an accurate word-for-word description of what that voice mail said. I'll ask you to review that and tell me if you remember leaving such a voice mail on the phone of Mr. Saidis. A I don't recall verbatim. I did leave voice mail messages for Mr. Saidis. That week we spoke three or four times a day probably, but I do not recall offhand if this is verbatim my voice GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 mail message. Q The first line, if I might read it, is "Hi, Bob, it's Chris Rice. I think we have a deal." Do you remember at: least leaving that message on his cell phone on the 29th of December at 1:15 p.m.? A I don't recall leaving a message saying that. Q Could you have left a message saying that? A Yes, because when I looked at that memo that you just produced that's marked as Exhibit 1, it does reference a fax that I had sent later, which I do recall, and the fax was a result of Bob and I going back and forth with numerous discussions. Q That would have been a fax dated the 29th of December 2009? Do you recall that fax from your office to Bob Saidis? A If I could just look at it. I think that's the one you're holding. Yes, that looks like the fax I'm referencing. Q Now, the fax of December 29th, 2009 to Mr. Saidis from you, that came after the voice mail GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 10 10 10 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 15 that is Rice Exhibit Number 1? A I would presume. Q Do you have a specific recollection? A No. Q The terms contained in the letter of December 29, 2009 from you to Mr. Saidis, there appear to be eight in number. Do you have a recollection of how those terms were decided upon by you and apparently Mr. Saidis to put in a letter? A I recall that Bob had originally presented some terms. Those terms were not acceptable. We had presented some terms in reply. Bob Saidis indicated they were not acceptable. Bob and I went back and forth with different options that we could talk to the Diehls about and this was a result of those options. Q So when you say this, you're referring to your letter of December the 29th, 2009 to Mr. Saidis containing eight items that you believed was your offer to them to consummate a transaction? A No, I believe thin is what Bob had agreed to and that I needed to present to my client. He and I had basically come to terms on what he would do and what I would present to my GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 16 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 client based on numerous discussions we had and this is what resulted. Q So when you wrote to him saying it appears that we -- we have reached the following agreement, when you say we have reached the following agreement, who is we? A Bob and I. Q And did you review the document of December 29, 2009 with Suzanne Diehl? A No, I did not. Q Did you review it with Genevieve Diehl? A No, I did not. Q At any point in time did you discuss with Genevieve Diehl and Suzanne Diehl the ongoing negotiations in the latter part, of December of 2009? A No, I did not. Q With whom did you discuss the ongoing negotiations and the ultimate letter of December 29, 2009? A Don Diehl and Randy Diehl. Q Who' s Don Diehl? A Don Diehl is Suzanne's husband. Q And who is Randy Diehl? A Randy Diehl is Genevieve's son and GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 Don's brother. Q Were either Don or Randy a signator to the agreement of sale in April of 2008? A No. Q Were either Don or Randy a signator to the addendum that was signed March 31st, 2009? A No. Q Did either Don or Randy have a power of attorney for either Genevieve or Suzanne to negotiate this particular transaction on their behalf? A I do not know. Q Did you have a power of attorney that you reviewed that was given by either Genevieve or Suzanne authorizing Don and Randy to negotiate this contract? A No, I did not review anything. Q At some point in time were you given authority by Suzanne and Genevieve to act only upon what Don and Randy advised you to do? A No. Q Why were you consulting with Don and Randy Diehl? A I was consulting with Don Diehl because Don is the one who communicated the issues and he GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 would then relay any discussions to family and reply to me. Q Was Don Diehl your client? A Don Diehl was a client. In this case the clients are Suzanne and Genevieve. Q So in this case involving this particular tract of ground, Jonathan Park, Lots 71, 72, 73 and 74, your clients were Genevieve and Suzanne Diehl? A They're the sellers, yes. Q And you're telling us that at no point in time -- or at some point in time, up through and including December 31st, 2009, did you ever consult with Suzanne and/or Genevieve concerning your letter of December 29, 2009 to Mr. Saidis indicating it appears we have reached the following agreement? A No, I did not talk to them -- Suzanne or Genevieve directly, but I did write to Suzanne and Don on that letter. Q And did someone respond to you as a result of that letter? A The first response! I received was from Randy Diehl and I believe it was in the evening hours on the 30th. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 is ? 40 ? 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And how did you get a response from Randy Diehl? A I don't -- Q Did it come by letter, a phone call? A Possibly an e-mail.. Q And do you recall what that response was? A I think the first response was I think his question regarding why aren't their wives guaranteeing it. Q And do you recall what your response was to that? A I do not. Q In your letter of December the 29th, 2009, specifically Paragraph 5, it talks about guarantees being executed by Mr. Saidis, Mr. William Kronenberg and Mr. Andrew Kronenberg. Is that contained in the letter of' December 29, 2009? A You're saying Paragraph 5, is that accurate? Q Yes. A Yes. Q And is there any mention of wives' guarantees in the letter of December 29, 2009? A No. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 t • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 Q Do you recall in your voice message to Robert Saidis earlier in that day whether or not the -- a request was made for wives' guarantees in that voice mail? A I don't recall. Q I note from that =Letter of December 29, 2009 that a copy of that was hand delivered to Mr. and Mrs. Donald Diehl, and yet Randy Diehl was the person that e-mailed you. Do you know how Randy Diehl got a copy of the letter of December 29, 2009? A I don't know if he received a copy or asked for a copy. Q Okay, and -- A And maybe I should clarify. When I was dealing with Don and Suzanne and Genevieve on this, Don had -- I want to clarify and say Don has been a client and I perceived him as having authority on behalf of Suzanne and Genevieve to relay information to them regarding :situations. So did I classify him as a client at that time, yes. Did I classify Randy, no. Randy was involved with the parents, Genevieve and Raymond's, situation. And they basically make decisions as a group. So in this situation Don was GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 relaying information to the group. Q At any point in time did you ever receive from Suzanne Diehl or from Genevieve Diehl, the owners of the tract of ground, that they did not want to sell the property to the York Professional Group? A Can you rephrase that? Are you asking -- I mean, they entered into an agreement of sale. Q I'm sorry. At any, point in time after December 31st, 2009, or even --- let me back up and do it this way. At any point in time between December the 29th, 2009 and as we speak today, did either Suzanne or Genevieve ever indicate to you that they did not want to extend the addendum of March of 2009 beyond December 31st of 2009? A I don't know if I feel comfortable answering that. Q Well, let me A It's covered privilege. If you -- Q Well, here's Chris. It's clear, is it owned this piece of prope Suzanne Diehl? ask you this -- by attorney/client what I'm getting at, not, that the people that rty were Genevieve and GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 E • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 A Yes. Q And Genevieve and Suzanne Diehl signed the original agreement to sell,, correct? A Yes. Q Suzanne and Genevieve signed the addendum in March of 2009 to extend the time of settlement until December the 31st, 2009? A Yes. Q Sometime in late December 2009 negotiations began and those negotiations were intended to extend the addendum for a two or three year period that resulted in you sending a letter to Bob Saidis after you left the voice mail confirming an agreement. And at some point thereafter you've indicated that Randy Diehl wanted wives' guarantees. A It was -- first, for clarification, there was never an agreement discussed or terms discussed on the Diehls' part about extending the term. This was a sale of the property with seller financing that was being proposed by Bob Saidis. Q So the sale was to occur but financing would have been provided by the sellers? A Yes. And Don and Suzanne and Genevieve, and I should probably include in that GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 23 C? • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 group Raymond, Genevieve's husband, were basically the interest I was representing. Randy, being the son, came in at the end and represented that this was not something his parents would agree to and did not agree to and he represented that to me. Q At that point in time you're referring to the e-mail sometime late December 30th that you got from him saying he wanted wives' guarantees? A It was an e-mail and/or phone conversation. I'm not sure if we ended up talking. I believe we spoke on the 31st in the morning because that's when it was indicated that the parties were not willing to accept that term. And I had not and I had been -- not been instructed to move forward. We didn't review the loan documents. At that point there was still -- Don had not agreed to the note terms that were proposed by Bob Saidis. So these general terms we couldn't reach an agreement on. Q Did you ever review the terms of your December 29th, 2009 letter to Bob Saidis with Genevieve Diehl? A No. Q Did you ever review them with Suzanne GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 Diehl? A No. Q Did you have authority on behalf of Suzanne and Genevieve Diehl to enter into negotiations with Bob Saidis for purposes of consummating this transaction? A No, I had authority from Don to speak with Bob and relay messages back and forth. Q When the e-mail was received or the discussion you had with Randy Diehl occurred, was it Randy who said that they wanted wives' guarantees? A I think Don actually wanted the wives' guarantees as well. Q When did he tell you that? A He and I had talked numerous times throughout the week. Bob Saidi.s and I talked and I told Bob originally we wanted personal guarantees. He said, no, deal's off. I contacted the Diehls -- Don Diehl and Don said, well, then fine, we're not closing. I told Bob Saidis and Bob said, well, let me see if I can get those, and that was originally for the spouses too. And then I -- Bob and I talked and that's where we came up with, GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ? 0 I*. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 well, maybe we can just -- it will work out with just the partners, and that's what was proposed. Q And when you wrote that letter to Bob and you put in personal guarantees of only the principals and not the wives, that was something that you're saying that you negotiated with Bob Saidis but you didn't have the authority to do it on behalf of either Genevieve or Suzanne? A Correct. Q But after December 29th, 2009, up through and including the end of business December 31st, did you ever speak with Suzanne or Genevieve Diehl about your letter of December 29th? A I don't recall. I mean, I indicated on this letter to Bob that I'm forwarding this to my clients to confirm the terms. Q I understand. And you were representing Suzanne and Genevieve Diehl that you told us about earlier in your deposition, correct? A And I think it's fair to say Don and Raymond as well. I believe when I represented them that all interests were involved. So I have to be fair and say all four were my clients. Q Well, did all four retain you to deal with this particular transaction? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A Yes. Q And so you're telling us all four were involved from the very inception in 2008 when you first reviewed the agreement of sale? A Yes. Don and Raymond, although not on the deeds, they basically, because they have an interest, obviously, as husbands, have always served as the primary contacts. Q But the owners of the property were Genevieve and Suzanne? A Yes. Q They were listed as the sellers in both the original agreement as well as the addendum? A Right, but all my dealings had been primarily with Don and then when we would -- if we would meet, it would be as a group. Q As of the time that Randy Diehl indicated to you that -- after December 29th that wives' guarantees were necessary, had you had any communications with him or from him during the month of December 2009 concerning this particular tract of ground? A Not that I recall. Q So the first communication you had from Randy Diehl was after your letter of December 29, GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 2009 and it questioned why there were no wives' guarantees? A That was the one thing that he had asked, yes. Q And that was Randy Diehl? A Yes. Q Now, at any point in time did you talk with either Genevieve or Suzanne about wives' guarantees after December 29th, 2009 up to and including the time after Randy told you that? A No, my communications have always been with Don who would relay to the group the situation and respond to me. Q I understand, but you're telling us now that Randy is the person that e-mailed you saying A Randy has authority that I've learned -- I don't know about before or after, but my understanding is Randy has taken over the financial affairs for his parents and has made decisions on behalf of them. Q Was that made known to you at the time the agreement of sale was originally entered into in 2008? A I don't recall. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • 11 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2E Q Was it made known to you when the addendum was entered into in March of 2009? A I don't recall in March of 2009. Q Can you tell me when you became aware that Randy was in charge of their, if you will, assets or the control of their assets that he was making decisions on behalf of Suzanne and Genevieve? A I don't remember offhand. At that time it was understood. But when I learned, whether it was a month before, a year before, I don't remember. Q Did Randy Diehl that sister-in-law Su A No, Q Did that Randy Diehl Genevieve Diehl? you see any documents that gave authority to act on behalf of his zanne? I did not. you see any documents to indicate had authority to act on behalf of A No. Q Throughout the course of this transaction, from the time the original agreement of sale was signed and the addendum was signed, up until the end of December of 2009, were you presented with any written documents, power of GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 2S • • ? 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 attorney, guardian of an estate, any written documents that empowered anybody other than Suzanne Diehl and Genevieve Diehl to consummate this transaction? A I don't recall. I just know I've had dealings with the Diehls for a few years, like Bob Saidis has, and they usually deal with one person and that person relays to the group. And then when it comes down to a final review, we get together. Q Well, in this case you were hearing from Don Diehl? A Yes. Q You were hearing from Randy Diehl? A Yes. Q Were you hearing from Suzanne Diehl? A No, not that I recall. Q Were you hearing from anybody else as part of this, if you will, family or group concerning this transaction, other than Randy and Don Diehl? A I may have talked to Genevieve and Raymond at the end of December to discuss the situation, but I don't recall what the situation was. And Suzanne may have been present. I have to be honest, I don't remember. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • 10 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 30 Q That was my next series of questions. Was there anything that prevented you from dealing with Suzanne or Genevieve Diehl throughout particularly December of 2009? A No, there was no need. Q That's not what I'm asking. Were you prevented from discussing or talking with them concerning this transaction? A No. Q Were you aware of any ill health or being out of town or being unavailable that prevented you from talking to either Suzanne or Genevieve? A I know Genevieve was of ill health and Suzanne I don't recall. I do :know she -- I step back. I do know she left at the end of December for a trip, but I don't know when. Q Now, after your letter of December 29th that you have in front of you, did you receive some documents from Mr. Saidis that purportedly were settlement documents, a settlement sheet, notes, mortgages, things of that nature? A Yes, he had sent over signed documents before I reviewed them and/or approved them or presented anything to my client. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 31 • lie 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q When did you get those? A The 29th or 30th. I don't remember. It might have been on the 30th.. Q And do you know why he would have sent those documents to you? A Bob the whole time had been trying to push this forward and I kept trying to explain to him, and he understands dealing with the Diehls himself, that I'm not dealing with one person and this had to be communicated to them. I tried to push this as fast as I could for -- it was a week discussion and they had two years to buy this property. So the fact that, you know, this didn't go through and he sent documents, I don't know why he did send those without me approving them. He was trying to rush it through. Q In the purported voice mail -- and I know you don't have a recollection, but the purported voice mail reads -- and I will read it and you can tell me if you remember it, and you're talking. "I will send you fax confirmation. If it is not, let me know, otherwise please be in touch with me tomorrow because I need to review the documents. It will be the note, the mortgage, the GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 32 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 guarantees. I do not mind preparing them, but if you think it will save money you doing it and me reviewing, that is fine. But I still will have the costs reviewing that the Diehls want you to pay for. Thanks, Bob." When you said -- assuming it to be -- first of all, do you recall saying that? A I don't recall word for word. It sounds like a discussion we had. I told him if he wanted to prepare the documents, that's fine. Initially I was going to prepare title insurance, I was going to do the documents if this went through and he wanted to save money on it. I understood that. That was fine with me, but he had to know, and I put that in the letter, that all costs would be borne by the buyer. Q In this voice mail it says, and I asked you this earlier, "I think we have a deal. I have one revision that I am hoping you are fine with. It will make your eyes blink. The note will be for two years. The sale obviously will occur on the 31st." Where did you get the idea that the note will be for two years? Who came up with that idea? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3- A Oh, probably -- it was probably based on my discussions with Don Diehl. Q And so when you later wrote in -- or left this same voice mail, "I will send you a fax confirming it," what were you confirming, if you had already talked to Don Diehl? A No, I was confirming the accuracy of the terms with Bob. Bob and I had had so many conversations that week and I had relayed so many things to Don Diehl that after a while I needed to come up with firm terms that I could present. Q Well, you just told us that the voice mail, assuming it to be true, "I think we have a deal, I have one revision," and that's the term of the note. You're telling us that revision came after consultation with Don Diehl? A I don't recall. I don't know what revision it is. Q Well, it says, "It: will make your eyes blink, but the note will be for two years, the sale obviously will occur on the 31st." From whom did you get authority to leave a voice mail, assuming it: to be true, that there would be a note for two years? A I don't recall. The only person I GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 10 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 34 dealt with was Don Diehl at that time. Q Did it come from Don Diehl? A It may have. If that's what -- if that's what I said, then any term I would have presented would have been after discussions with Don Diehl. And if Bob and I couldn't reach an agreement, then I would have gone to Don and said, Don, this is what they want and Don would have said, well, this is what I'll agree to, but we had gone back so many times and we had not reached a resolution and I needed to get something to them to review. Q And in the same voice mail you say, "I will send you a fax confirming it." What were you confirming? A Confirming those terms that Rnh AnH T had talked about. Q Well, you just told us you think you probably talked to Don Diehl about adding that additional term of two years on a note. Had you talked to Don Diehl? A I believe I probably did. Q And so when you said to Bob in your voice mail, "I will send you a fax confirming it," GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ?J • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 35 the letter of December 29th, 2009 is the confirmation of that voice mail after you had talked to Don Diehl about the terms, is it not? A Well, my conversations with Don Diehl by that time, since they were basically fed up with the whole situation, was me trying to put down what Bob would agree to. And there were certain terms Don and I didn't even discuss at that point that I needed to present to Don. Now, as far as the note, that might have been one aspect of it, but I had not reviewed the note with Don. I know Don was not interested in quarterly payments. He had represented that to me after the fact and before the fact. These were documents that I was trying to get a grasp on what the general terms would be so that I could present it to the client. Q Well, here's the --- let me read it, assuming, again, the voice mail to be accurate. "Obviously it will. make your eyes blink, but the note will be for two years. The sale obviously will occur on the 31st. The note will be for two years with an option to extend it for one additional year for a total of three. But upon the extension, if you guys: do exercise that GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 36 option, they want 10 percent interest and $40,000 down towards the purchase price. Interest would not be towards." Whatever that means. "So it will be six percent for two years, then at the beginning of the expiration of the first two years it would go to 10 percent. Obviously, they just want to make sure that is motivation for you guys to settle and they get their property, and if not, it will continue and you will get a third year. I am assuming that is okay. I will send you a fax confirming it. If it is not, let me know, otherwise please be in touch with me tomorrow because I need to review the documents. It will be note, mortgage, guarantees." Those terms that you put in that voice mail, they're the exact same terms that are in the letter of December 29th, are they not? A That I needed to run by my client to approve. And when I talked to Bob later in the week, saying they wanted wives to guarantee, he said deal's off. Q Well, my point is in your voice mail, "I think we have a deal," and then you outline the same items that are in the letter of December 29, 2009 and you've already told us before you sent GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • L7-1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 this voice mail you reviewed these terms with Don. Diehl, didn't you? A No, I said I reviewed the term with Don Diehl. You asked about the note term. Q But you're telling me -- A All these terms have not been reviewed with Don. That's why I sent this. This was a very haphazard negotiations because Bob had told me on two occasions he was willing to back out and then we were back into it and the Diehls were not interested in moving -- Q Where did you get the idea that there would be a third year option? Who gave you that idea? A It would have probably been from Don Diehl. Q Who gave you the idea the third year would be 10 percent interest? A Probably from Don Diehl. Q And how about $40,000 down towards the purchase price? A Probably from Don Diehl. Q Six percent for two years? A That's probably from Don Diehl. Q So the terms of your voice mail that GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 17? • I0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 you left on December 29th at 1:15 with Bob Saidis were terms that came from Don Diehl, were they not? A Well, I say probably from Don Diehl. I don't recall because Bob might have presented the terms initially. Because if you recall, Bob sent a letter over with seller financing terms and had followed up with another letter thereafter. So if these are terms that Bob gave me, then they were presented by him. If they're terms that Don gave me, they were presented by him. I don't recall who gave me the terms. Q Why would you then say "I think we have a deal, I will send you a fax confirming it?" A Because I thought we were moving forward with negotiations. We had something in place. I told Bob -- I said, Bob, I need to confirm these terms with my client, the accuracy. And when I told Bob that after the fact, when he said deal's off, Bob said, oh, I thought everybody just puts that in their letter. No, I have four people I'm dealing with, and he understood that because he's dealt with the Diehls. For five years he's represented them. So what I had done was worked with Bob GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 39 to try to come up with terms. Bob had not even talked to his own clients about if the guarantees were good. He told me I will -- I'll see if I can get those. Q Well, let me back up a second, and I appreciate what you're saying about the guarantees. You discussed the terms of this voice mail with Don Diehl before you made the phone call to Bob Saidis, did you not? A I don't recall. I did discuss various terms with Don Diehl before that date and Don would have given me his input and reply. Q Did you say during this voice mail, after saying "I think we have a deal, I will send you a fax confirming it," did you say anywhere in this voice mail, if you know, or if you recall, but I don't have the authority on behalf of the Diehls to make this proposal? A Did I ever say exactly I don't have the authority, I don't recall. Q Okay. A I know Bob knows the Diehls. He's worked with them -- Q I'm asking about you, Chris. A He knows the -- well, but I -- my point GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • r1 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 is I relayed to Bob on numerous calls that I have to discuss this with my client. And when I came back after discussions with my clients, he and I would have discussions on how to make this work, what would be acceptable or not, and this is what he finally agreed to. So he and I had discussed -- this is what he finally agreed to based on the Diehls saying they didn't want to do certain things and I said let me run this by because Don and I had talked numerous times about different provisions and this is what I was presenting to the Diehls. Q When you left the voice mail on December the 29th, 2009, had you talked to Don Diehl about the terms in that voice mail before you left the voice mail or did you not? A I don't recall. Q Did you talk with Suzanne or Genevieve Diehl about the terms that you left in the voice mail for Bob Saidis? A I doubt it, but I don't recall. Q Are you telling us that your -- that you may have just on your own come up with these terms? A No, they were either from Bob or Don. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 41 • E • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Well, if they were from Bob, why would you say in this voice mail "I will send you a fax confirming it?" You start by saying, "Bob, it's Chris Rice. I think we have a deal. I have one revision that I'm hoping you are fine with." And at the end you put, "I will send you a fax confirming it." A And that's -- Q That revision came from Don Diehl, did it not? A I don't recall. Q Well, where did the revision come from? Who told you to make it? A Well, I'm not sure if that is my voice mail message, which I'm not -- I just didn't hear it. I'm not sure if it came from Don or not. Q Who would it have come from? You're calling him saying we have a deal, there's one revision. Where did the revision come from? Who wanted the revision? A It would have been Bob or Don at that time. Q Well, but if it was from Bob, why would he want a revision to his own proposal if he's the one that made this proposal? This came from Don GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 Diehl, did it not? A It may have. I don't recall. Q And in order to make a revision to a proposal, the underlying proposal had to have been read by Don Diehl or someone on behalf of the Diehls other than yourself, correct? A There was no underlying proposal. There were negotiations back and forth. Q What was the revision -- MR. GILROY: We need to let Mr. Rice respond. MR. WAGNER: I'm :sorry. A May I see the memo again? MR. WAGNER: Sure. A Again, you're asking me something that -- I have not heard the recording. BY MR. WAGNER: Q Well, where it says -- assuming it to be true that it says "I have one revision," revision to what? A I don't know. I don't know if it was a revision to a prior correspondence or a prior discussion he and I had. We had numerous discussions about this. It might have been a revision to our prior discussions or to a prior GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 2 3 4 5 6 C 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 e-mail that -- Q So what you're saying is that this "revision" was -- was or was not reviewed with the sellers or someone on behalf of the sellers? A I would not have made a decision on my own. Q Okay, that's what I want you to say. So in your ordinary course of business, that revision came after you discussed with someone on behalf of the Diehls the posture of the terms at that point, correct? A I wouldn't say the terms. I'd say that term. Q Okay. A We had gone back and forth on numerous -- they were not all put together at that time. Q And you were authorized to make that proposed revision and that's why you made the phone call, correct? A I was authorized to negotiate the terms and to return -- and I won't say negotiate the terms, but enter into negotiations and be that intermediary to relay terms back and forth. Q You were authorized, were you not, by the Diehls or someone on behalf of the Diehls to GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 44 10 U] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 extend that revision to what had already been proposed, were you not? A If I was providing a response with the term and -- more than likely, yes, the Diehls had said this is a term we're okay with. Q And in order to make a revision to something, wouldn't that revision -- wouldn't that underlying proposal have been reviewed by you on behalf of the Diehls and communicated to the Diehls? A Not necessarily. Q Well, how would -- A I told you there was -- that revision -- if that revision is referring to one term of a note, yes. Then, yes, I would have talked to the Diehls and said, hey, this is a term, are you okay with this. If it was the -- all the terms of the agreement, no, I didn't talk to them all in one standing. That's why I sent this letter. Q Well, and I guess that's what I'm getting to. How do you make a revision to something unless you know what the underlying premise is to make a revision to? A Maybe I'm not understanding your GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 AC 11 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. Q Well, you called Bob on the phone and you said I think we have a deal but I've got one revision. A Um-hum. Q You're revising something. A Yes, it was -- Q What was that -- A Maybe it was a poor choice of words, but it would have been our discussions. We had -- he presented terms -- he would have presented terms. If I would have talked to Don Diehl and said, Don, they want a three year term, you want four, whatever, what are you okay with and Don would have got back to me and said three, I would have relayed that, yes. Q Now, so that you would have, you think, talked to someone in order to have the authority to make that proposal in the form of a revision? A More than likely, yes. Q The balance of the terms of'your voice mail, assuming that is your voice mail, are you telling us that you did not have authority to recite those in the voice mail or did you on behalf of the Diehls? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 4F • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I would have had authority to relay where we stood at that point. Q - And then you said,, did you not, assuming this to be true, "I will send you a fax confirming it?" A And I would have had -- and I didn't get to finish. I would have had authority to relay that from Don Diehl. Don would have needed to then talk to everyone else about it to finalize those discussions. So if I was relaying anything, it was my discussions with Don Diehl only. Q So what you're saying is when you relayed this revision, that revision came from just Don Diehl, not authority on behalf of your clients? A It would have been from Don Diehl who was a client. Q On behalf of -- A But he was one client -- Q Would it have been. on behalf of the people that were the signators to the sale, Genevieve and Suzanne? A Are you asking if Don had authority? Q Yes. A I believe Don would have had authority to provide general terms to present to them and GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 4i r? • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that's what Don did. It was impossible to talk to all four of them within a week to try to work out these terms. Q What I'm trying to get to, Chris, is Don Diehl is the person -- or someone on behalf of Suzanne and Genevieve gave you authority to leave the voice mail making the proposal for a revision to the terms, is that correct? A Yes. Q And the balance of your voice mail talks about specific terms. A Well, I think it talks about general terms. Specific terms would have been reviewing the note to -- Q Ten percent interest -- A Getting into details of when -- Q -- $40,000 down, two years -- for the first two years, guarantees. They're pretty specific, are they not? A I do a lot of loan document work and there are a lot of specifics within the documents, payments, when they would come, when interest would accrue. That we hadn't even gotten to. Q And then "I will send you a fax confirming it," you were confirming the terms that GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 4E E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you left in the voice mail, which included a revision proposed by Don Diehl giving you the authority to make that phone call, correct? A I wouldn't say I had -- I was sending the confirmation because I left a voice mail message, purportedly, sending it so that Bob could look at those and I could send them to Don Diehl so they could -- the clients could review it simultaneously. Q So when you sent that -- when you left that voice mail, you're telling us you didn't have the authority to do it on behalf of the Diehls? A No, I'm telling you I would have talked to Don Diehl. Q That's not what I'm asking you. Did you have the authority on behalf of the Diehls when you left that voice mail? A I had authority from Don Diehl. Q Did you have authority on behalf of the Diehls, your client Diehls, Suzanne and Genevieve, when you sent the fax December 29, 2009 confirming what you said in the voice mail? A I don't know if Genevieve and Suzanne were involved with Don Diehl at: that time for the discussion. I know that Don Diehl informed me. He GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • L?] • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 49 and I had gone back and forth. He had given me things that they would agree to. That's what I relayed. Q And was Don Diehl,, to the best of your knowledge, at least in your mind, acting on behalf of Suzanne and Genevieve? A Yes, he was acting on their behalf. Q So he had the authority to bind them? A No, he did not have the authority to bind them. He was acting on their behalf so that he could provide the terms to them. They don't finalize anything until one person brings together all the terms. Q Chris, you just told us that Don Diehl did not have the authority to act on behalf of Suzanne and Genevieve. You've told us that you've never talked to Suzanne and Genevieve about these terms. A No, I said I might. have talked to Genevieve and Raymond after the 29th. Q After the 29th? A Yes. Q But never before? A No. Q You never discussed with Genevieve and GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • '0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5C Suzanne the specific terms of the voice mail that you left? A No, I did not. Q You never discussed with them the terms of the December '29, 2009 letter that you sent to Bob Saidis? A No, I did not. Q But you believe that Don Diehl was acting on behalf of Suzanne and Genevieve? A Yes. Q So if you believed -- A Because he was one -- he was one of the clients. There were three others. I was dealing with him. He was relaying to me positions he had and I would discuss and he would go back to his mother, father and wife to discuss those. Q Did you think when he told you about this revision that he did not --- did you have any indication before you left the voice mail with the revision that he did not go back and talk to his wife, mother and father before he told you about the revision? A No, I didn't have any indication. Q You thought when you relayed that to Mr. Saidis that you had authority on behalf of GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 51 Genevieve and Suzanne, didn't you? A Yes, I had authority from Don Diehl to relay these terms -- Q You thought you had it on behalf of Genevieve and Suzanne, didn't you? A Well, not technically, no, because I had, again, dealt with Don Diehl. When Don and I negotiated the terms, whatever would come out of that, then we would all sit down and discuss. Q So if you technically did not have authority on behalf of Suzanne and Genevieve, why then didn't you contact them about the terms and conditions of this proposed agreement? A I sent this to Don and Suzanne. Q That's not what I'm asking you. You just told us -- A Because I was dealing with Don and Don was their agent and/or, you know, representative at that time who was relaying the terms. Q You just told us that you did not see any documents authorizing him to do that. A Well, that's what he told me. That's what we've done in past practice. Q On one hand you're telling us you relied on Don Diehl to send the voice mail -- leave GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 52 the voice mail with this revision. On the other hand you're saying -- and you're telling us that you believed he had the authority on behalf of Suzanne and Genevieve when you left that voice mail, correct? A For me to discuss terms, yes. Q Well, not to discuss terms -- A Not to bind them. Q Well, but you made an offer, did you not? A No, we received an offer. We were going back and forth negotiating. Q But this is a counteroffer to that offer. A This is a counteroffer that my clients needed to all review. Q So what you're telling me then is when you made this counteroffer you didn't have the authority to do it on behalf of your clients? A I didn't have the authority to settle and provide an offer that was binding. I had the authority to reach certain terms. We did that, but those terms, again, had been over a few day period and I needed to clarify all of those because Bob and I had gone back on numerous ones. I needed to GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ? 0 U] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 53 get them to Bob -- or to Don Diehl so that he could confirm all of these are accurate, Chris. Yes, these are all the ones we've discussed. And then he would then take them to the other three. Q You just told us a few moments ago when, you left that voice mail that you believed you had authority to bind your clients through what Don Diehl told you to do. A I said I had authority to negotiate for my clients with the terms that Don would have provided. Q Can you show me anything in this voice mail that says -- A. There is nothing. Rich, you know there's nothing. Q I know there's nothing. A There's nothing that says that, but that's why I said I'll send a fax and the fax said I'll confirm -- I'm sending this to my clients to confirm the accuracy of these terms, so that everybody was on the same page and would agree. And when they got it, they said no. Q But Don Diehl authorized you to send this voice mail, did he not? A I can't say Don Diehl -- are we GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 11 • 10 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 54 splitting hairs? I can't say Don Diehl is authorizing me to send that exact voice mail. He didn't hear me. He wasn't in the room. Maybe I'm missing something. Q Chris, when you made the phone call to Bob Saidis, you just didn't out of the blue say I have one revision that I'm hoping you are fine with, the note will be two years? You just didn't make that up as -- A No. Q -- part of your --- A I didn't make up any of the terms. Q You got authority from someone to make that proposal. Who was the person who gave you authority to make that revision, proposed revision? A Don Diehl is the one I dealt with. Q So if he is the one that you dealt with, did you think that you had authority on behalf of all the Diehls when you made that phone call? A At the time -- I felt that Don Diehl was representing their interest; and he would relay to them any information. Don has told me he would have to take anything back to the group to discuss it with them. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 E L 10 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 55 Q Did you put that in your voice mail to Bob Saidis, that -- however, these -- this is just an offer and I am not authorized to consummate the deal unless I have people that are not part of the agreement agree to it? A I said -- Q Did you tell him ghat? A I said I think we have a deal because Bob -- MR. GILROY: Excuse me, you don't know what you said because you haven't heard it, right? A No, I already said I don't -- I'd love to hear the voice mail to see if it's accurate. MR. GILROY: Which, by the way, we thought we'd have done and it would have got around a lot of this I don't know, I'm not sure. BY MR. WAGNER: Q I'm just trying to find out, Chris, that -- and I really don't think when you left this voice mail that you didn't have the authority on behalf of the Diehls to do that. Are you telling me! you did not have the authority to leave that voice mail on behalf of your clients Suzanne and Genevieve Diehl? A First off, you're showing me a voice GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 E • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 56 mail I haven't heard. Q I'll ask it this way then. A I don't want to assume. Q Assuming the voice mail is correct -- A I will tell you this letter dated December 29th is what I had authority to do. I had to send him the terms and send them to my client to confirm the accuracy of those terms. And when my clients got it, they said, no, we're not okay with that guarantee and in return Bob said then we don't have a deal. Q Well, what you told me is that you never discussed those terms with Genevieve and Suzanne, who were the sellers of the property, and the person that said we're not content with these terms was Randy Diehl in an e-mail, who also was not part of the sales agreement that was executed by and between the parties. Did Genevieve and Suzanne ever know the terms set out in the December :29th, 2009 voice mail and letter from you to Bob Saidis at or immediately before you sent those terms? A I don't know. Q But in order to be! able to send those -- make that voice mail, assuming you did, and send GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 E E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 57 that letter, you talked to somebody before you sent it. Who did you talk to? A I talked to Don Diehl, and it wasn't before -- I don't know when I talked to Don Diehl. Don Diehl and I had numerous conversations. Bob Saidis and I had numerous conversations on this. We were negotiating terms. So I put it in writing what Bob and I had last discussed and talked about and then I sent it to the clients to discuss and consider because these -- that's what I looked at it as here's some final terms. Q The letter of December 29th, 2009 mirrors your voice mail, assuming the voice mail to be correct, does it not? A I guess it's how you classify it. It was a follow-up -- it appears that I left a voice mail and then sent the letter thereafter. I don't recall leaving the voice mail, to be honest with you, Rich. I can't -- I mean, you're asking me a lot of questions about the voice mail. I just don't recall. Q And isn't the voice mail, assuming it to be true, the revision to the letter of December 24th, 2009 to you from Bob Saidis -- GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • J • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5E A I'd have to see the letter. Q -- where he makes a proposal to you? A I'd have to compare both, if you want me to do that. Q Do you have a recollection of seeing the letter of December 24th, 2009? A Yes. Q. Do you have a recollection of discussing that letter with an:y of the Diehls? A Yes. Q And who would you have discussed it with? A Don Diehl and I may -- if I sent it out, I may have mailed it to everybody, but I would have at least by phone talked to Don Diehl. Q So when the voice mail five days later, December 29th, was made with the follow-up December 29th letter, was that in response to the December 24th letter from Bob Saidis to you? A You're missing all. the other discussions we had. Here we had talked about he said no guarantees. Well, now we went from the Diehls saying spouses too to Bob and I coming up with maybe just the partners. So you're asking -- did it go from here GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 5S • [7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to there, no. We had so many -- I was trying to help Bob out, you know, by relaying as much as I could to the Diehls and basically he dropped the ball. Q Who dropped the ball? A Bob Saidis. This should have been done three months ago if they were interested in this. Q But you -- MR. GILROY: Three months ago from December 30th? A From December 30th. I mean -- BY MR. WAGNER: Q But you left him a voice mail that said I will send you confirmation of it and your clients, being Suzanne and Genevieve, never knew the terms and conditions, upon what you told me, and that somebody named Randy Diehl is the guy that wanted the wives' guarantees that nixed the deal. A Well, you'll have to ask where that came about. My understanding was that Randy, from his parents, did not want to proceed with that. Q Chris, I'm asking you. Your clients were Suzanne and Genevieve who were the signators to the agreement and the addendum to the agreement -- GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 6C .7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A And Don and Randy. MR. GILROY: Let him finish his question, too. BY MR. WAGNER: Q And you're telling us that you never talked to either of them about the terms of your letter of December 29th or the voice mail, isn't that what you just told us? A Yes, I was dealing with Don Diehl. Q Okay, and that's my point. You don't have anything in writing from Genevieve or Suzanne that they had the authority to act on their behalf, do you? A I had the representations from Don Diehl, from Randy and in the past Suzanne has always deferred to her husband„ and the same with Genevieve. I represented these people and that's how they operate. And I do that with other clients, too. I have one person that I deal with and they discuss it with the party and they get back to me. Q And in this case, however, you're telling us that Don Diehl may not have discussed things with the rest of the family, but somehow you assumed he had authority to make certain proposals, GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • E 13 1 2 3 4 5 6 7 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 6] is that what you're telling us? A Can you rephrase that, please? Q I will be happy to. The revision that is the subject of the voice mail, you're saying you think you talked to Don Diehl about it and you think Don Diehl gave you authority to relay that to Bob Saidis, but you don't know if he had the authority on behalf of the other Diehls to do it? A I don't know what Don -- who he talked to, what authority he had. You'll have to ask Don that. Q But Chris -- A My -- my -- Q -- if you don't know what authority he had, why would you be calling the other side making revisions to proposed agreements? A Because Don Diehl negotiates the terms and then presents it. Whether they said, Don, you can negotiate everything and sign for us and that's fine, or whether they said you come up with specific terms and bring it back, my understanding has always been that Don Diehl negotiates the terms. That's his authority. When he -- then he brings them back, presents them to the group and the group decides GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 62 whether they are okay with those or not. Q That's a nice way of avoiding contracts, isn't it? A Is that a question? Q A statement. MR. GILROY: So you don't have to answer. MR. WAGNER: Yeah. BY MR. WAGNER: Q At any point in time when you sent that letter of December 29th to Bob Saidis, did you have any reason to believe that that is not something that Genevieve and Suzanne would agree to? A No, I didn't have any reason to believe' that. Q As a matter of fact, you believed that they knew about it, didn't you? A I don't know what I believed at that time, whether they knew about it or not. I -- Q Well, why -- A I knew I was dealing with Don Diehl in negotiating terms. Q Why wouldn't you want to make sure the sellers of the property knew what the terms were? A We had not reached an agreement. They GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 63 would definitely know if we reached an agreement what those terms would be because they would have to sit down and agree to the terms. Q So when you made that proposal on December 29th, that's what I'm asking you, you did not have the authority on behalf of Genevieve and Suzanne Diehl? You either did or you didn't. Did you have the authority from them? A I had authority from Don to negotiate terms. Q Did you have authority on behalf of Suzanne and Genevieve to negotiate -- MR. GILROY: I thank this question has been asked and answered -- MR. WAGNER: No, it hasn't. MR. GILROY: -- about four or five times. BY MR. WAGNER: Q Specifically I want to know did you have the authority on behalf of them? A Rich, I'm going to say the same thing I've said before. Don Diehl had been negotiating the terms with me, okay. That's the authority -- Q Did you believe --• A -- we had to negotiate. I could not GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • ? 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 64 bind them to any terms. Q Did you believe when you sent the letter of December 29, 2009 to Bob Saidis you had authority on behalf of Genevieve and Suzanne Diehl to extend that? You either did or you didn't. It's your belief. Did you believe you did? A Well -- and I just answered it. Q You got it from Don Diehl. Did you believe you had it on behalf of Suzanne and Genevieve? A I believed Don was going to relay or did relay or would relay what those terms were that he was negotiating, like in any deal. Q I know you're talking about Don Diehl. I'm asking you did you believe when you sent the letter of December 29, 2009 to Bob Saidis, did you believe that you had authority to do so on behalf of your clients, Genevieve and Suzanne Diehl, the signators to the agreement of :sale? Did you believe that? You either did or you didn't. A I'm going to answer it the -- I'll try to answer it a little differently, Rich, but -- Q Chris, it's not -- it's either you did believe it or you didn't believe it. Did you believe that you had authority on behalf of Suzanne GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 65 and Genevieve Diehl to send the letter of December 29, 2009? A I believed that I had authority to negotiate the terms to bring them back to the party, to my clients. So if that gave me authority to send the letter, I sent the letter to try to formalize what the terms were so I could present them to my client. You have to understand, I can't have authority to send it if I haven't -- if we're trying -- Bob and I are changing them every day. Q He didn't send the letter to you and then you said something to your clients. You sent a letter to Bob Saidis outlining terms. When you sent it, did you believe you had authority on behalf of Suzanne and Genevieve Diehl to send that letter with those terms? You either did or you didn't. A No, not in the case of binding them to anything. Q And did you believe that Randy Diehl in calling you and saying we don't have an understanding was binding upon Genevieve and Suzanne Diehl? A I believe at that point they were GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • E 0 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 66 disgusted with the family and they said we're not willing to do this. MR. WAGNER: Thank you. I've got nothing further. MR. GILROY: I need to follow up just with a couple of brief questions just so we have it on the record. CROSS-EXAMINATION BY MR. GILROY: Q Mr. Rice, the agreement of sale originally provided for a purchase price of $301,000, is that accurate? A I believe that's correct. I don't recall offhand. MR. GILROY: Rich, can you provide -- MR. WAGNER: I don't have my copy. Oh, I'm sorry. BY MR. GILROY: Q The purchase price was -- A Yes, it says 301. Q And the agreement of sale was a cash deal, there was no seller financing involved at all, right? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 67 A Correct. Q Is it accurate that the negotiations that took place in December of 2009 concerning the possibility of seller financing did not include any increase in the purchase price or any further consideration for seller financing? A Right. Q Now, Mr. Wagner asked you about the letter of December 29th, 2009. And as you noted, at the end of that letter it indicates it's being forwarded to your clients for accuracy. Did you follow up the next day, December 31, 2009, with a phone call to Bob Saidis about whether the terms of your December 29th letter were satisfactory to your clients? A Yes. I followed up on December 31st, yes. Q And what did you tell them? A I told them they were not. They said there's still a personal guarantee issue with the wives. Q And did you follow that up with an e-mail that was attached to the! answer to the complaint as Exhibit E? A Yes. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6E Q You told Mr. Said_is that personal guarantees of the wives was required? A Yes. Q Did Mr. Saidis respond to you with an e-mail? A Yes, he did. Q That same day? A Yes. Q And is that Exhibit F of the answer to the complaint? A Yes. Q What was your understanding of Attorney Saidis' response? A They weren't going to provide the wives. Q As personal guarantors? A Yes. Q How did you respond to that e-mail from Attorney Saidis? A I notified him in the afternoon on the 31st that they're no longer willing to provide seller financing and if he wants to move forward they've got to buy the property, and if not -- well, let me -- that was probably in my voice mail, but this e-mail basically says they're not willing GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 E E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 69 to provide seller financing. So if you decide not to purchase the property, please return all the plans, agreements, whatever, related to the property. Q Basically the agreement terminated, from your perspective, at the end of the day on the 31st? A Yes. Q Since we are in equity, in January of 2010, did you contact Attorney Saidis and suggest that he and his -- I guess his clients and the entity would be afforded an opportunity to purchase the property under the original terms on a cash deal? A Yes. Q And what was the response? A I didn't get one. MR. WAGNER: What was the date that you just said about an e-mail? A It was in mid January, if I recall. BY MR. GILROY: Q Would that be an e-mail of January 18th? A Yes, and we told him he could have until February 16th. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 70 Q So the Diehls provided Mr. Saidis and his clients, and his associates, with an opportunity, even after December 31, to purchase the property under the original terms of the agreement? A Yes. Q Mr. Saidis never gook you up on that opportunity? A He never took us up. Q Okay. MR. GILROY: I have nothing further. MR. WAGNER: I just have two. MR. GILROY: And if you don't have that e-mail, I can provide a copy to you. REDIRECT EXAMINATION BY MR. WAGNER: Q At some point there was a proposed stipulation, Chris, that the Defendants Pallante would be substituted for Genevieve Diehl. MR. GILROY: Why don't we go off the record. (Discussion held off the record,.) MR. WAGNER: The proposed stipulation GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • El • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 71 that was provided from York Road Professional to substitute the Pallante defendants for that of Suzanne -- excuse me, Genevieve Diehl is going to be reviewed by Mr. Gilroy on behalf of the defendants. MR. GILROY: That"s correct. BY MR. WAGNER: Q One other question. In March of 2010 when the property was sold by Genevieve and Suzanne to the Pallantes and Suzanne, did you prepare that deed? A May I see it, Rich? I think I did but -- Q Sure. A Yeah, this -- yes, this would have been prepared by my office. Q Can you tell me why you had Raymond Diehl and Don Diehl sign the deeds? A Because they may have an interest in the property. Q Can you tell me why that would not have been something that should have also been part of the agreement of sale in April of '08 and then again the extension in March of 09? A They weren't titled. It was not titled GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 72 in their names. Q Well, it was not titled in Raymond's name or Don's name when the deed went to the Pallantes, right? A Right, but if York Road Professionals would have bought the property,, they would have gotten a similar deed with all four signing off. Q My point is that the husbands signed the deed but the husbands did not sign the original agreement of sale or the extensions? A Correct. MR. WAGNER: Thank you. That's all I have. (The deposition was concluded at 11:51 a.m.) GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • E 13 1 2 3 4 5 6 7 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 73 COUNTY OF CUMBERLAND SS COMMONWEALTH OF PENNSYLVANIA I, Teresa K. Bear, Reporter-Notary Public, authorized to administer oaths within and for the Commonwealth of Pennsylvania and take depositions in the trial of causes, do hereby certify that the foregoing is the testimony of CHRISTOPHER E. RICE. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said Teresa K. Bear, a Reporter-Notary Public, approved and agreed to, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify that the proceedings and evidence are contained fully and accurately to the best of my ability in the notes taken by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto subscribed my hand this 25th day of October 2010. Teresa K. Bear, Reporter Notary Public My commission Expires on April 25, 2011 GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 t MEMORANDUM TO: File FROM: RCS SUBJECT: Jonathan Park December 29, 2009 Voice message from Chris Rice, Esq. at 1:15 PM - 12129109 (243- 3341) Hi, Bob, it's Chris Rice. revision that I am hoping make your eyes blink, but sale obviously will occur years with an option to e: total of three. But upon I think we have a deal. I have one you are fine with.. Obviously it will the Note will be for two years, the on the 31st. The Note will be for two Ktend it for one additional year, for a the extension, if you guys do exercise that option, they want 10% interest and $40,000 down towards the purchase price. Interest, obviously, would not be towards. So it will be 6% for two years, then at the beginning of the expiration of the first two years, it would go to 10%. Obviously, they just want to make sure that is motivation for you guys to settle and they get their property and if not, it will just continue and you will get that third year. I'm assuming that is okay. I will send you a fax confirmation it. If it is not, let me know, otherwise please be in touch with me tomorrow because I need to review the documents. It will be Note, Mortgage, Guarantees. I do not mind preparing them, but if you think it will save money, you doing it and me reviewing, that is fine. But I still will have costs :reviewing that the Diehls want you to pay for. 717-243-3341. Thanks, Bob. /pm - ?-J,Ct -aza I &" EXHIBIT "E" 03py 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA YORK ROAD PROFESSIONAL OFFICES, LLC, PLAINTIFF VS SUZANNE DIEHL, NICHOLAS PALLANTE and BRENDA PALLANTE, husband and wife, DEFENDANTS NO. 2010-2461 CIVIL TERM DEPOSITION OF: DONALD E. DIEHL TAKEN BY: PLAINTIFF BEFORE: TERESA K. BEAR, REPORTER NOTARY PUBLIC DATE: OCTOBER 15, 2010, 11:57 A.M. PLACE: MARTSON LAW OFFICES 10 EAST HIGH STREET CARLISLE, PENNSYLVANIA GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 APPEARANCES: MANCKE, WAGNER & SPREHA BY: P. RICHARD WAGNER, ESQUIRE 2233 NORTH FRONT STREET HARRISBURG, PA 17110 717-234-7051 FOR - PLAINTIFF MARTSON LAW OFFICES BY: HUBERT X. GILROY, ESQUIRE 10 EAST HIGH STREET CARLISLE, PA 17013 717-243-3341 FOR - DEFENDANTS GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 r] E 13 1 2 3 4 5 6 7 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 3 TABLE OF CONTENTS W I T N E S S FOR PLAINTIFF DIRECT Donald E. Diehl 4 GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ?J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 STIPULATION It is hereby stipulated by and between counsel for the respective parties that reading, signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved to the time of the trial? DONALD E. DIEHL, called as a witness, being sworn, testified as follows: DIRECT EXAMINATION BY MR. WAGNER: Q Would you please dive your full name to the court reporter, Mr. Diehl. A Donald E. Diehl. Q And your address, sir? A Do you want my office or home? Q Whatever is easiest for you. A 4 East High Street, Carlisle, PA. Q Don, we're here for a deposition concerning a matter that was filed regarding Lot 71 through 74, Jonathan Park lots in South Middleton Township. I'm going to ask you some questions. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 r? LJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 At any point in time if you don't understand the question, please ask me to rephrase it and I will be happy to do so. At any point in time if you want to take a break to talk to Mr. Gilroy, please ask and I will provide that. And we'd only ask that you provide verbal responses because this young lady cannot take down shaking of the head. Is that acceptable? A Yes. Q I'm going to be brief. I don't have a lot of questions to ask of you, but I want to ask and focus, if I could, in December of 2009 were you aware of the status of Jonathan Park, Lot 71 through 74, in terms of negotiations that were going back and forth between Mr. Saidis and Chris Rice regarding the consummation of the sale of those lots? A No. Q Were you aware that Mr. Rice was in contact with Mr. Saidis talking about certain terms and conditions to consummate the sale of that development? A Say that again. Q I'll be happy to. Were you aware in GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 r, u • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 December of 2009 that Chris Rice, an attorney here in Carlisle, was in negotiations with Mr. Saidis concerning the purchase by a group, of which Mr. Saidis is a principal, of Jonathan Park, Lot 71 through 74? A Yes. Q And do you recall -- were you aware that Suzanne and mom Genevieve signed an agreement back in 2008 to sell that property? A Yes. Q Were you aware that Suzanne and Genevieve signed an addendum in March of 2009 extending the time within which to purchase the property? A Yes. Q Give me just a fla.vor. Were you aware at the time they were doing it or is this something you learned later on? A When -- no, when Mr. Kronenberg came in with the addendum to my office, with my secretary sitting there, and asked for the addendum for -- the extension and he looked me in the eye and he shook my hand and he said, Don, I promise you, if Mr. Saidis doesn't settle for this, I will. Q I asked a confusing question, I'm GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 sorry. Genevieve and Suzanne signed an agreement in April of 2008. Do you have a recollection of knowing about that at that time that they entered into this agreement -- A Yes. Q -- to the sell the property? There was in March of '09 an addendum to that original sale -- A Yes. Q -- that they each signed. Were you aware that they signed those at or about the time they were signed? A The addendum, yes. Q Did you have any input with mom and wife about signing the original agreement and then the -- A Yes. Q -- addendum? A Yes. Q What input did you have? A We talked about it. I don't know, you know. Q Okay, that's -- just in talking about it, that's what you recall happening? A Yes. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 Q In December of '09 did you become aware that there were apparently some! difficulties regarding the settlement on that property that was to occur on or before December 31st, 2009? A I didn't know it was even supposed to settle December 31st. Q Okay. A Was that the second addendum or what? Q Yes, it was the second addendum. If I represent to you it was the addendum of March of '09 that said it was to be sett=led by the end of the year, were you aware of that? A Okay, I didn't know what the time frames were. Q Did you become aware from any source that in December of '09 Mr. Rice and Mr. Saidis were negotiating additional terms to that March 109 addendum of sale? A In December -- okay, this is after -- after the second -- after -- Q Yeah. A And so were they negotiating? They were negotiating, I think, yes. Q And do you know how you learned that Mr. Rice was negotiating the sale of this property? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 E] Ell E 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 9 A He would e-mail me, but half of them I couldn't get up on my computer. Q Okay, all right. You're telling us you became aware because Mr. Rice 'was e-mailing you -- A Yeah. Q -- telling you what was going on? A Yes. Q And when you would get this information, what would you do with it? A Not much of anything. Q Did you discuss it with your wife? A No. Q Did you discuss it with Genevieve? A The only thing I discussed with my parents is I told them at least 30 or 40 times I didn't trust Mr. Saidis at all. Q I understand that.. Did you discuss the terms of what you were getting in terms of e-mails from Chris Rice with them? A Sometimes and sometimes not. Q In December of 2009 were you given authority by either Suzanne or Genevieve to act on their behalf concerning this sale? A Not to consummate it. Absolutely not. Q So you had no authority to -- GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 E I• 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 A No. Q -- do anything? A No, not -- no, not. without my brother because my brother was involved. Q I understand. There has been some suggestion in December of '09 that -- specifically the 29th that there was a voice mail left by Chris Rice on Bob Saidis' cell phone indicating "I think we have a deal. I have one revision I am hoping you are fine with." And that had to do with a note, a two year note with seller financing. There's been some indication that that voice mail with the idea of a revision was left after Chris Rice talked to you about that. Do you have a recollection of that? A I have absolutely no recollection of that. The only thing I remember in December was that Mr. Saidis wanted to pay quarterly and there was no way I was going to go along with that because I felt he would back out of the deal at any time if he did buy it on a sales agreement if he couldn't lease it. Q Do you have a recollection of speaking to Mr. Rice and giving him authority to leave a voice mail with certain terms regarding the sale of GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • ? 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 the land by Suzanne and Genevieve? A I honestly don't. Q Did you become aware that on December the 29th, the same day, sometime after the voice mail, that Chris Rice sent a letter by fax to Bob Saidis establishing the terms of a purported agreement for the sale of the property? A No. Q According to the letter -- and I'll show you a copy of it. A And it may be. I don't remember. Q And I just want your best guess. According to the letter, there's an indication that there was a hand-delivered copy of this letter to you and your wife after it was sent out by Mr. Rice. A It could have been. I don't know. Q Do you have a recollection today of ever reviewing that proposal? A No. Q Did you authorize on behalf of Suzanne and Genevieve the sending of this letter of December 29th, 2009? A To the best of my recollection, no. Q Did you have authority to negotiate the GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 .7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 sale of the Jonathan Park, South Middleton lot on behalf of Genevieve and on behalf of Suzanne? A On behalf of Suzanne, yes. Q But not Genevieve? A I couldn't do that: without my brother. Q Okay. And did you ever indicate to Mr. Rice that you were -- that you had authority on behalf of Genevieve and Suzanne to act on their behalf in setting out these teams and conditions and to negotiate the sale of'this property? A What we would do would be negotiate -- I would negotiate and I'd go and present it to my parents once we had a final agreement, but we never reached that. And I had -- and then my brother took over. Q When did your brother take over? A In late December. Q Did -- A And I was out of it. Q And when you say he took over and you were out of it -- A I told him it was his decision what we did, period. Q Okay. A And he's the one that -- whatever else GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 0 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 13 happened, he was involved in. I wasn't even -- I went on vacation. Q When Mr. Rice sent: this letter of December 29, 2009 setting out certain terms and conditions, do you have a recollection of discussing with Mr. Rice before the 29th of December the terms and conditions contained in that letter? And I'll show it to you. A I don't remember at all settling December 31st, by December 31st -- I don't honestly remember that. It could have. I don't know. It's been so long and -- I don't know. Q If discussions occurred between you and Mr. Rice, and I'm hypothetically asking that because Mr. Rice made certain comments -- A And it may have happened. I just don't recall anymore. Q Well, when you were discussing with Mr. Rice the terms of this, were you doing so on behalf of Genevieve and Suzanne or just on behalf of Suzanne? A I couldn't do it on behalf of my parents because of my brother. It was my wife. Q Did your brother have some sort of power of attorney for Genevieve? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • E • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 A My brother basically took over everything four or five years ago and every day it's more and more. And I -- anything we do I go through my brother now. Q Okay. A He represents my parents, not me. Q Did you at some point in time indicate to your br other that the purchase -- or excuse me, the sale o f this particular piece of property was acceptable to Suzanne according to the terms set out in the letter of December 29th, 2009? A No. Q Did you ever request of Mr. Rice that he get gua rantees from the principals plus their wives? A No. Q Do you know if anyone ever did? A My brother. Q And is that something that was required on behalf of Suzanne and Genevieve or just Genevieve? A I had nothing to do with it. I didn't even know about it until after it was done. Q So let me understand who you believe that Randy was -- your brother Randy, right? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 A He represented my parents. Q Okay, but not your wife? A No. Q So if Randy wanted a particular or made a representation to Mr. Rice about a certain term and condition in the purported agreement, that, according to your understanding, would be on behalf of your mother and father but not Suzanne? A Well, I told him it was -- at the end, in December, I told him it was up to him, period. So he would have done it for both of us. Q Do you know if your wife ever saw that letter of December 29th, 2009 before it was sent? A No, she would have never seen anything. Q Do you know if your wife would have ever known about or authorized Mr. Rice to leave a voice mail with Mr. Saidis saying we have a deal? A No. Q Are you even aware of that? A I wasn't even aware of it, no. Q I understand. Earlier -- and at this point in time we haven't had this confirmed so I'll refer to it as a purported voice mail that was left on the 29th of December at 1:15 from Mr. Rice to Mr. Saidis and I'll only read a couple terms. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 E E 13 1 2 3 4 5 6 7 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 16 "Hi, Bob, it's Chris Rice. I think we have a deal. I have one revision that I am hoping you are fine with. Obviously it will make your eyes blink, but the note will be for two years, the sale obviously will occur on the 31st." Do you ever remember talking about a two year note as a revision? A I remember a two year note at some point, yes. Q Do you remember talking to Chris Rice and authorizing him to make that phone call? A No. Q If he made that phone call -- and I'm just saying if. If he made that phone call, did he have the authorization to do so on behalf of Suzanne? A Not for finalizing anything. We never -- we don't do anything until we review it. Q Did he have the authorization to make that proposed revision on behalf of Genevieve? A No. Q And you're telling me you don't have a recollection that you discussed: with him in giving him authority to send this -- A I honestly don't. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 E • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 Q If he did, could it have been that you gave him the authority to do it and you just now today don't realize it or remember it? A We -- I don't do anything unless we review it. I mean, if it's drawn up, I -- we had no deal until I review the whole thing. There was nothing. Q Well, this purported voice mail has some additional terms, two years with an option to extend to a third year, 10 percent interest on the third year, $40,000 down. Do you remember any of those terms? A I don't remember at all the third year. I mean, I looked at that and - I don't remember it. Q Not remembering it. today, could it have been discussed back in December with Mr. Rice? A It could have been, yes. Q And if Mr. Rice left a voice mail that says this, would he have been doing that on behalf of you? A I don't -- no, I didn't -- I would never have said we reached an agreement. Q Do you have any knowledge from where Mr. Rice would have had the belief that I think we GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 J s E 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 18 have a deal? A I -- I told him all along I wouldn't go along with three months, payments once every three months because I didn't trust Mr. Saidis at all, and that was part -- that was my understanding where we were at. And I told my parents that, too, that I just didn't trust the man. I thought he could walk at any time if he couldn't lease it. Q And in terms of the letter of December 29th that you have in front of you that was sent by Mr. Rice to Mr. Saidis, were the terms that are set out therein discussed with you before that letter was sent? A I honestly don't remember. Q Did Mr. Rice have authority at least from you and/or from you on behalf of Suzanne to send a letter like that setting out those terms? A Repeat that, please. Q Did Mr. Rice have authority from you and/or from Suzanne through you. to send out a proposal containing those terms? A I didn't even -- I don't remember any of these terms hardly. Q One of the terms that I want to direct GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 your attention to under Paragraph 5 talks about guarantees from the three principals. A Um-hum. Q Was that term discussed with you before -- or with Suzanne before the :Letter was sent? A No, I never -- I didn't know about it until after it was done. Q Did Mr. Rice have authority on behalf of Suzanne or on behalf of you to send a letter specifically with reference to personal guarantees only by the principals? A This is something my brother wanted andi I told him whatever he wanted is okay. Q I understand that, but when Mr. Rice sent that letter, he says that he wants personal guarantees from Mr. Saidis, Mr. William Kronenberg and Mr. Andrew Kronenberg. Wives are not mentioned. When that letter of December 29th was sent, did Mr. Rice have authority to set out those terms on behalf of Suzanne and/or you to send that? A I didn't even know that was in there. Q So what you're saying is Mr. Rice did not have the authority to set those terms and conditions as he put in that letter of December GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 21 • E E 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 29th to Mr. Saidis? A I didn't even know about it. Q I understand. Do you know if your wife ever executed a power of attorney or any kind of authorization to Chris Rice to negotiate the sale of this property -- A No. Q -- in December of '09? A No. Q Is it your testimony that Mr. Rice was acting on his own behalf when he set out some of these terms and conditions, or at least he was operating without authorization? A He was representing us, but I -- I don't know if -- I don't remember agreeing to any of this stuff. Q I understand you don't agree -- you don't remember agreeing to it, but somewhere along the line a lawyer, who purportedly was representing the interests of Genevieve and Suzanne, leaves a voice mail and sends a letter containing pretty specific terms to consummate a sale. He either did that with authority or he did it without authority. Did he do it with you and Suzanne's authority? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • LE E 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2] A I told him I would not agree to anything on -- if Mr. Saidis paid us quarterly because I thought he'd back out of the deal. And I don't know why we got that far because until we resolved that there shouldn't have been anything I else. Q Are you telling me then that Mr. Rice did not have the authority to send the terms of that letter on your behalf or on behalf of Suzanne? A I don't remember agreeing to it. Q So not remembering to agree to it would mean that Mr. Rice sent this letter without authority on your behalf? A I don't remember gelling him to -- that we authorized it. Q And do you have a recollection of whether Suzanne, your wife, authorized him to send that letter? A She wasn't involved at all. Q I understand. So any authorization that Mr. Rice would have had to send the letter of December 29th, at least binding Suzanne, would have to come through you? A Yes. Q And you don't have a recollection of GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 ever authorizing that letter? A No. Q If I suggested to you -- and I hope I characterize this correctly. If I suggested to you that Mr. Rice indicated that the requirement to have personal guarantees, including wives, came after December 29th, 2009 from your brother Randy, would you have any information that would cause you to disagree with that representation? A I don't know when it happened. Q The requirement to have personal guarantees from wives was not something that you required? A I thought it was in there to start with. I didn't even know it. Q Okay. A I honestly did not review this stuff that much because I trusted -- I trust Chris Rice. I did not trust Bob Saidis at all. Q I understand. And I respect what you're saying. I just want to find out what you -- A But I didn't know. Q So you had -- A I would want it, though, with a man like that. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • ?J E 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 Q I understand that.. But in terms of Chris Rice leaving a voice mail, assuming that he did, and sending a letter on December 29th saying we have a deal, that representation by him was done without your permission? A I don't know. I don't remember. Q Okay. A I do a lot of things each day, not just this. Q I understand that. Do you think for him -- has it been your practice -- I'm sorry, let me back up and do it this way. Would Chris Rice have authority to send out a proposal without your blessing it, if you will? A I don't remember giving him authority to send out anything that we agreed because I did not agree. Q Are you saying that you -- in not remembering it -- it might be a fine line, but in not remembering, you could have given him authority back in December and you don't remember it now or you just never gave him authority? A I would never have given him authority to say we have a deal. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ?r--1 E • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 Q So the representation that Mr. Rice made to Mr. Saidis, I think we have a deal, is a representation he made without your authorization? A Yes. I would never have said that. Q Do you have a recollection of whether or not you authorized 10 percent interest, 40,000 down, six percent for the first two years, extension of a third year? Do you have a recollection of any of that information being discussed? A I remember the six percent. Q Well, how about the third year, 10 percent interest, $40,000 down'? A I don't even remember that at all. Q Was that a term that you did not authorize him to make on your behalf or that of Suzanne? A I don't remember if I had authorized it or didn't authorize it. I just: don't remember, period. Q But you don't remember authorizing -- A I remember the six percent. Q And that's it? A Yeah. Q And in terms of what Chris Rice did GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 L 11 13 1 2 3 4 5 6 7 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 25 represent, did he have the authority to make representations to bind you and/or Suzanne without your consent? A No. Q So that if he did make a representation or make an offer -- I'm not saying contract, I'm saying offer. If he did make an offer, are you telling us that he did not have the authority on behalf of you and/or Suzanne to make such offers? A I would have had to review it with my parents and everybody. I couldn't just -- no. Q The offer, even an offer, would have tol be reviewed? A Absolutely. With a man like Saidis, absolutely. Q So even when an offer was made, that offer had to be reviewed by the entire family? A Absolutely. Q In that the offer made here from Mr. Rice required no spousal guarantees and you were out of the area at the end of December of 2009, at least the term for spousal guarantees would not have been reviewed with you at the end of December? A But I would have wanted that anyways. Q I understand what you would have GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 wanted. It was not reviewed with you, was it? A No. Q Is it fair to say then that not everything is reviewed with every member of the family as it relates to at least this particular transaction? A It wasn't all reviewed. We would wait until we got it in a contract and then we'd sit down and go over it and decide if we wanted to do it or not. We never got to that point. Q But in terms of the proposed elements of a contract, the terms and conditions of that proposed contract, where did Mr. Rice get that information to put in that proposal? A I remember we talked -- what I think happened -- it's been so long, but Mr. Saidis proposed something and we took what he proposed and changed it. Q And is the letter of December 29th the changes you made? A The six percent was, I remember that. That's the only thing I remember. Q How about the third year option? A I don't remember that at all. Q Do you know if you -- GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 A It could have been. I don't know, though. Q You do remember getting something from Mr. Saidis and you reviewed it'? A Originally we -- he made an offer and we reviewed that and we made some changes, but I don't remember what -- Q When you say we reviewed it, the whole family reviewed it or just you and Chris Rice? A And I went over some of it with my father. Q It would not have involved Genevieve or Suzanne? A My mother is not --- Q I understand. I just want to -- for the record, they weren't involved in the discussions -- A No. Q So that when changes were made to Bob Saidis' proposal, the changes that were made -- proposed changes came from you and maybe your dad? A And Chris Rice probably. Q And then you empowered Chris Rice to send those changes to Bob Saidi.s? A The six percent, yes, I remember that. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 C ,I--] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 I don't honestly remember any of the rest of it, but it could have happened. Q I understand. Are you telling us then that the letter of December 29th, 2009, even though you don't remember it, could have in fact been a response that Chris Rice was authorized to make after meeting with you and/or your dad? A I don't think so. Q So Chris did not have the authority to send that letter of December 29th? A We have not reached an agreement, no. Q Well, that's not an agreement. That has certain terms and conditions in it, certain proposals. My question to you is they came from Chris Rice -- those proposals came from Chris Rice to Bob Saidis and I want to know if Chris Rice had the authority on behalf of the Diehls to set out those terms and conditions as a proposal? A No, because I didn't talk to my -- no. Q So that letter came, from your perspective, at least without authorization on behalf of Suzanne? A Oh, absolutely. Q And would that be true also of the GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 2c • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 voice mail from Chris, assuming the content of the voice mail, the same day, it was within hours -- A I didn't know anything about it. Q And the same would be true, those representations by Mr. Rice were made without authority on behalf of Suzanne and yourself? A Certainly without Suzanne. Q And could it be also without your authorization? A I don't remember any of it. Q And, again, it's splitting hairs. You don't remember it because today you don't remember it and it could have happened or you just don't remember that you in fact did that? A I just don't remember, period. Q Could Mr. Rice have talked to you before December 29th at 1:15 and got authorization from you to leave this voice mail, assuming it to be true? A I don't think so. MR. WAGNER: I have nothing further. Thank you. MR. GILROY: You're done. Thank you. (The deposition was concluded at 12:25 p.m.) GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 3C C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNTY OF CUMBERLAND SS COMMONWEALTH OF PENNSYLVANIA I, Teresa K. Bear, Reporter-Notary Public, authorized to administer oaths within and for the Commonwealth of Pennsylvania and take depositions in the trial of causes, do hereby certify that the foregoing is the testimony of DONALD E. DIEHL. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said Teresa K. Bear, a Reporter-Notary Public, approved and agreed to, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify that the proceedings and evidence are contained fully and accurately to the best of my ability in the notes taken by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto subscribed my hand this 25th day of October 2010. r^ Teresa K. Bear, Reporter Notary Public My commission expires on April 25, 2011 GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 EXHIBIT "F" f/j/e t a MLAW OFFICES 10 EAST HIGH STREET CARUsLE, PENNSYLVANLA 17013 TELEPHONE (717) 243-3341 FAcsacaz (717) 243-1850 INTERNET wwwmartsonlawcom Robert C. Saidis, Esquire SAIDIS, FLOWER & LINDSAY 26 West High Street Carlisle, PA 17013 WuuAM F. MARTSON JOHN R FOWLER III DANIEL K. DEARwRFF THOMAS J. WMUAMS* NO V. orm in HUBEflT X. Gu.RoY GEORGE R FAL ER JL* DAvm A. Fn7siMONS CHRISTOPHER E. RICE JENNIFER L SPEARS SETH T. MOSEBEY KATIE J MAXWELL JACOB M. THEIS *Bo w Cnnrm Crvm Tnw Sracuurr January 20, 2010 RE: Diehl to Kronenberg and Saidis - Jonathan Park, Lots 71, 72, 73 and 74, South Middleton Township, Pennsylvania Our File No. 12303.27 Dear Bob: If you are still interested in purchasing the property under the original Agreement and amendment(s) that were terminated as of December 31, 2009, our clients are willing to provide you with additional time to obtain third party financing, if necessary, and settle. The new settlement date would be on or before February 16, 2010. Please confirm whether you are interested in this extension; otherwise, please forward all plans, contracts, etc., to our office. Very truly yours, CER/mmp F: %RLW CV mu112303 DWMI230317 Krwwnbnj and Sai W12303.17.r=$ MARTSON LAW OFFICES ?2'6??A s 12 Christopher E. Rice INFORMATION 9 ADVICE 9 ADVOCACY sM CAIAL PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) c? •,, CAPTION OF CASE (entire caption must be stated in full) YORK ROAD PROFESSIONAL OFFICES, LLC Plaintiff vs. SUZANNE DIEHL, and NICHOLAS PALLANTE and BRENDA PALLANTE, husband and wife, Defendants -------------••---------------------------- - o xM z cn r to A. C> a -I rV No 2010-2461 CIVIL - 1 m . term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendants Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: P. Richard Wagner, Esquire, MANCKE WAGNER & SPREHA (Name and Address) 2233 North Front Street, Harrisburg, PA 17110 (b) for defendants: Hubert X. Gilroy, Esquire, MARTSON LAW OFFICES (Name and Address) 10 East High Street, Carlisle, PA 17013 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 18, 2011 Signature Hubert X. Gilroy, Esquire Print your name Defendants 3f- L Attorney for Date: (- C) --a tr- -,rn CDC; C C:) C-) ?M INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. i:'r" 3HE P QT?, Hubert X. Gilroy, Esquire T}1' P y I.D. No. 29943 2011 FEB -Z PH 3: 4 ? R. Christopher VanLandingham, Esquire I.D. No. 307424 CUMBERLAND Cou, T?,' p NNSYLl??-??F1; : MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLEN MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff YORK ROAD PROFESSIONAL : IN THE COURT OF COMMON PLEAS OF OFFICES, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2010-2461 CIVIL TERM SUZANNE DIEHL, and : IN EQUITY NICHOLAS PALLANTE and BRENDA PALLANTE, husband and wife, Defendants ORDER AND NOW this day of February, 2011, upon counsel for defendants relating to the Court that Plaintiff is in the process of retaining new counsel and that Plaintiff is unavailable for the hearing scheduled on February 3, 2011, and counsel for the defendant indicating he has no objection to postponing the hearing scheduled for February 3, 2011, the hearing scheduled in Courtroom No. 1 on Thursday, February 3, 2011, at 4:00 p.m. is cancelled. P ' 4f a da+e. ld`zA P,1NG 4I? bL r`t S c?c d.??e \ItiJfiL kD -2-17? ?vrt? ige CC: ?P. Richard Wagner, Esquire ? Hubert X. Gilroy, Esquire M,,i PJ lA a ?Ir? v?Qy') rc-?.., Sf ?y esley OleV Jr. YORK ROAD PROFESSIONAL OFFICES, LLC, Plaintiff v SUZANNE DIEHL, and NICHOLAS PALLANTE and BRENDA PALLANTE, husband and wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA • t: _ Cam? r NO. 2010-2461 CIVIL TERM -- ? u IN EQUITY rn :;C0 PLAINTIFF'S MOTION TO STRIKE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT FROM ARGUMENT COURT AND NOW, comes the Plaintiff, York Road Professional Offices, LLC, by and through its Managing Member, Robert C. Saidis, Esq. and files this Motion to Strike Defendants' Motion for Summary Judgment from the Argument Court and avers as follows: 1. The moving party is Plaintiff, York Road Professional Offices, LLC, a Pennsylvania Limited Liability Company with a principal place of business located at 26 West High Street, Carlisle, Pennsylvania (hereinafter "Plaintiff'). 2. The responding parties are Defendants, Suzanne Diehl, an adult individual residing at 110 West Springville Road, Boiling Springs, Pennsylvania, and Defendants, Nicholas Pallante and Brenda Pallante, husband and wife, adult individuals residing at 917 Petersburg Road, Carlisle, Pennsylvania (hereinafter collectively "Defendants"). 3. Defendants filed a Motion for Summary Judgment on January 31, 2011. 4. On January 31, 2011, Defendants listed their Motion for Summary Judgment for Argument Court on February 18, 2011. 5. Defendants' counsel was informed prior to January 31, 2011, that the Plaintiff was seeking new counsel. 6. Attached hereto as Exhibit "A" is a copy of the Praecipe to Withdraw from Richard P. Wagner, Esq., which cannot be filed prior to the Entry of Appearance of new counsel. 7. Attached hereto as Exhibit "B" is a copy of the Order dated February 1, 2011, prepared by Defendants' counsel acknowledging that he had been informed that Plaintiff is seeking new counsel. 8. Discovery is not complete in the above captioned matter. 9. On November 18, 2010, the Plaintiff forwarded drafts of Answers to Interrogatories filed by the Defendants to Richard P. Wagner, Esq.,, which Answers have not been filed in this matter. (Exhibit "C") 10. On December 6, 2010, the Plaintiff, by reason of Exhibit "D", requested to schedule the deposition of Randy Diehl, which has not occurred. 11. Presently before this Honorable Court is Plaintiff s Motion for Recusal of Judge Oler, which a hearing will be rescheduled upon request by motion of any party. Exhibit "D': 12. Until a decision is rendered upon Plaintiffs Motion for Recusal of Judge Oler, it is not appropriate for this Honorable Court to render a decision on Defendants' Motion for Summary Judgment. 13. Pursuant to Pennsylvania Rules of Civil Procedure, this matter is not procedurally ready for Argument Court for the following reasons: A. Pa.R.C.P. 1035.3(a), Response. Judgment for Failure to Respond, states that "...the adverse part may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying (1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or (2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced." (emphasis added) B. Pa.R.C.P. 1035.3(e)(1) states that "nothing in this rule is intended to prohibit a court, at any time prior to trial, from ruling upon a motion for summary judgment without written responses or briefs if no party is prejudiced. A party is prejudiced if he or she is not given a full and fair opportunity to supplement the record and to oppose the motion." (emphasis added) C. Based on Pa.R.C.P. 1035.3, Plaintiff has thirty days to file a response to Defendants' Motion for Summary Judgment, which said response would be due after the date set for Argument Court on February 18, 2011. 14. Defendants have been contacted regarding this Motion and they do not concur with this Motion. WHEREFORE, Plaintiff respectfully requests that this Honorable Court strike the Motion for Summary Judgment from the Argument Court on February 18, 2011 and orders and directs that it may be relisted after the hearing on the Motion for Recusal and the completion of Discovery by either party. Respectfully Date February 9, 2011 Robert C. Saidis, Esquire Attorney I.D. #21458 Managing Member York Road Professional Offices, LLC 26 West High Street Carlisle, PA 17013 York Road Professional Offices, LLC, Plaintiff V. Suzanne Diehl and Nicholas Pallante and Brenda Pallante, husband and wife, Defendants TO THE PROTHONOTARY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA NO.: 2010-2461 CIVIL TERM - P1,T EQUITY PRAECIPE Please withdraw my appearance as counsel for the Plaintiff, York Road Professional Offices, LLC, in the above-captioned matter. Respectfully submitted, MANCKE, WAGNER & SPREHA Date: /-/3- / / BY ' .P'. Ri?ha?`d Wagner Attorney I.D. No.: 23103 2233 North Front Street Harrisburg. PA 17110 (717) 234-7051 Fax: (717) 234-7080 Attorney for Plaintiff Exhibit "A" FILED-OFFICE Hubert X. Gilroy, Esquire OF T I.D. No. 29943 2011 FEB -2 Phi 3: 4 P R. Christopher VanLandingham, Esquire C I.D. No. 307424 UMBEPLANU COUNTY MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLEANt?'S YLV/? MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff YORK ROAD PROFESSIONAL : IN THE COURT OF COMMON PLEAS OF OFFICES, LLC, ; CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. .2010-2461 CIVIL TERM SUZANNE DIEHL, and : IN EQUITY NICHOLAS PALLANTE and BRENDA PALLANTE, husband and wife, Defendants .ORDER AND NOW this day of February, 2011, upon counsel for defendants relating to the Court that Plaintiff is in the process of retaining new counsel and that Plaintiff is unavailable for the hearing scheduled on February 3, 2011, and counsel for the defendant indicating he has no objection to postponing the hearing scheduled for February 3, 2011, the hearing scheduled in Courtroom No. 1 on Thursday, February 3, 2011, at 4:00 p.m. is cancelled. ::sue- n4ff hm die. T ? l?l?Lr??I?vU ?Al LL J CC: ?P. Richard Wagner, Esquire ""Hubert X. Gilroy, Esquire n its tA' i al / arch esley Jr. Exhibit "B" S aidis Sullivan Law JOHN E. SLIKE A PROFESSIONAL CORPORATION CAWP HILL DrFICE ROBERT C. SAIDIS 26 W.EST'HIGH STREET 2109 MARKET STREET DANIEL L. SULLIVAN CARLISLE, PENNSYLVANIA 17013 CAMP HILL, PA 17011 JOHN B, LAWN TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486 TELEPI30NE: (717)737-3401 CAROLJ. LINDSAY EMAIL: ATTDRNEY«SFL-LAW.COM FACSIMILE: (717)737-3407 DEAN E. REYNOSA NVIA A:SFL-LAW.COM MARYLOU IvIATAS JASON E. KELSO REPLY TO CARLISLE November 18, 2010 P. P.ichard Wagner, Esq. Mancke Wagner Spreha & McQuillan 2233 North Front Street Harrisburg, PA 17110-1027 Re: York.Road "Professional Offices, LLC Dear Pich. Enclosed please find a draft of my Answers to the Interrogatories, which were submitted. Them are one or more Interrogatories (5 0. 6), which need your input. Could you please update me on the status of our proposed Stipulation and the. Motion for Recusal? If you have any questions, please do not hesitate to contact me. Very truly yours, SA RI:S S IVAN IjAW J? Fobert C. Sai.dis RCS/pm Enclosures cc: wilii.am Yronenberg Andrew Kronenberg Exhibit "C" JOHN B. MANCKE P. RICHARD WAGNER EDWARD F. SPREHA. JR. LAW OFFICES MANCKE, WAGNER & SPREHA 2233 NORTH FRONT STREET HARRISBURG, PA 17110 December 6, 2010 Hubert X. Gilroy, Esquire 10 E. High Street Carlisle, PA 17013 Re: York Road Professional Offices, LLC Dear Hubert: PHONE (717) 234-7051 FAY. (717) 234--/080 After consulting with my clients, we request the opportunity to depose Randy Diehl. Please advise of a date, time and place for the same. Your attention is appreciated. Sincerely, P. Richard Wagner PRW/dks bcc: Robert Saidis, Esq. Exhibit "D" YORK ROAD PROFESSIONAL IN THE COURT OF COMMON PLEAS OF OFFICES, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 2010-2461 CIVIL TERM SUZANNE DIEHL, and IN EQUITY NICHOLAS PALLANTE and BRENDA PALLANTE, husband and wife, Defendants VERIFICATION I verify that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. DATED: February 9, 2011 York Road Professional Of ces, LLC t- B . Ro ert C. Saidis, Managing Member L YORK ROAD PROFESSIONAL OFFICES, LLC, Plaintiff V. SUZANNE DIEHL, and NICHOLAS PALLANTE and BRENDA PALLANTE, husband and wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-2461 CIVIL TERM IN EQUITY CERTIFICATE OF SERVICE On this 8"' day of February, 2011, I hereby certify that I served a true and correct copy of the foregoing Plaintiff's Motion to Strike Defendants' Motion for Summary Judgment from Argument Court upon all parties of record via facsimile transmission to 717-243-1850 and United States Mail, postage prepaid, addressed as follows: Hubert X. Gilroy, Esq. 10 East High Street Carlisle, PA 17013 SAIDIS, SULLIVAN & ROGERS By: o P , llis McCoy CJ4 < N PRAECI PE FOR LISTING CASE FOR ARGUMENT , (Must be typewritten and submitted in triplicate) MW rn M TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter foe,#I1e rte t Argument Court.) O ----------------------- CAPTION OF CASE -----------_____.,,??; r.; (entire caption must be stated in full) YORK ROAD PROFESSIONAL OFFICES, LLC,' ?.r vs. SUZANNE DIEHL, and NICHOLAS PALLANTE and BRENDA PALLANTE, husband and wife, No. 2010 2461 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion for Summ Jud ent 2. Identify all counsel who will argue cases: (a) for plaintiffs: P. Richard Wagner, Esquire, MANCKE WAGNER SPREHA (Name and Address) 2233 North Front Street, Harrisburg, PA 17110 (b) for defendants: Hubert X. Gilroy, Esquire, MARTSON LAW OFFICES (Name and Address) 10 East High Street, Carlisle, PA 17013 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: March 25, 2011 Date: February 8, 2011 Print your n e r? Defendants Attorney for r°- a INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. YORK ROAD PROFESSIONAL OFFICES, LLC, Plaintiff v SUZANNE DIEHL, and NICHOLAS PALLANTE and BRENDA PALLANTE, husband and wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVA*?k r ' NO. 2010-2461 CIVIL TERM,., r - IN EQUITY :. PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND NOW, comes the Plaintiff, York Road Professional Offices, LLC, by and through its attorneys, SAIDIS SULLIVAN & ROGERS, and files its Response to Defendants' Motion for Summary Judgment and avers as follows: Admitted. 2. Admitted. 3. Admitted. 4. Denied. To the contrary, there are several genuine issues of material fact relevant to a final determination of this matter. There are genuine issues as to whether the parties reached an agreement regarding seller financing and whether the parties agreed that final resolution of outstanding issues could occur beyond December 31, 2009. There is an issue whether Plaintiff substantially complied with the terms of the Agreement of Sale, as amended, thus invoking the doctrine of substantial compliance. By way of further response.. discovery is not closed in this case and Defendants' motion for summary judgment is premature. Specifically, Plaintiff requested Defendant's counsel in early December 2010, before; Defendants filed their Motion for Summary Judgment, to coordinate scheduling of the deposition of Randy Diehl, the individual who allegedly required the additional term of spousal guarantees after the parties had agreed on the terms of seller financing. (See Christopher Rice Deposition, October 15, 2010 at 18). This deposition has not yet been scheduled. Moreover, additional depositions and further written discovery may be appropriate before this matter is ripe for summary judgment proceedings and for trial. 5. Denied as stated. The claims in this action arise from an Agreement of Sale entered into by the parties for the sale of commercial lots located on York Road in South Middletown Township, Pennsylvania (hereinafter "Property"). In December 2009, the parties entered into further negotiations regarding seller financing and the parties agreed upon terms pursuant to which Plaintiff executed all documents for Defendants' counsel to review. The parties agreed that any final details could be settled during the week of January 4, 2010. Defendants were advised and knew that one or more of the members of Plaintiff (which is a limited liability company) were or would be out of town on December 31, 2009. Further, counsel for Defendants advised that he was also going to be out of the office, first indicating his unavailability on December 30, 2009 and later stating his unavailability on December 31, 2009. On December 31, 2009, after Plaintiff executed the necessary documents and provided them to Defendants' counsel to review, Defendants demanded the additional term of spousal guarantees, knowing that one or more of the members of Plaintiff were out of town and spousal guarantees could not be provided on that same day in any event. The members of Plaintiff returned to Carlisle on and around January 4, 2010 and advised Defendants on January 5, 2010 that spousal guarantees would be provided. See Affidavit of Robert C. Saidis, which is being filed concurrently herewith ("Saidis Affidavit"). 6. Denied as the document speaks for itself. By way of further response, it is admitted that Defendants entered into an Agreement of Sale with Plaintiff and that the parties entered into an addendum to extend the settlement date. 7. Denied as the document speaks for itself. By way of further response, it is admitted that a second addendum was executed between the parties. 8. Denied as the document speaks for itself. By way of further response, December 16, 2009 is the first time Defendants ever stated that they were "adamant about settling on or before December 31, 2009." Indeed, as Defendants themselves allege in their Motion for Summary Judgment, the date for settlement had previously been extended two times. Moreover, the parties agreed after December 16, 2009 that settlement did not have to be held by December 31, 2009, and agreed that final details and documents could be worked out the following week. By way of further response, Donald Diehl, whom Plaintiff believes to have been acting as a representative of the Defendants, testified that he was not even aware that settlement was to occur by December 31, 2009. (Donald Diehl Deposition, October 15, 2010 at 8). See Saidis Affidavit. 9. Denied as the document speaks for itself. By way of further response, the parties entered into negotiations, subsequent to December 16, 2009 regarding the terms of seller financing and agreed further that any final details could be finalized the week of January 4, 2010. (See Saidis Affidavit). Defendants' counsel stated in a voicemail to Robert Saidis on December 29, 2009, confirming those matters, that "I think we have a deal. I have one revision that I am hoping you are fine with ...I will send you a fax confirmation it. If it is not, let me know, otherwise please be in touch with me tomorrow because I need to review the documents." A true and accurate copy of the verbatim script of the voicemail is attached as Exhibit "H" to the Saidis Affidavit. Defendants' counsel followed up with the letter dated December 29, 2009, confirming those matters, which is attached to Defendants' Motion for Summary Judgment as Exhibit "C" and as Exhibit "I" to the Saidis Affidavit. In accordance with the voicemail and subsequent letter, Plaintiff executed and provided all loan documents for Defendants' counsel to review. See Saidis Affidavit. 10. Denied as stated as the document speaks for itself. By way of further response, although Defendants initially requested the personal guarantees of both partners and spouses, Defendants dropped the demand for spousal guarantees through the negotiations as reflected in Defendants' Counsel's voicemail of December 29, 2009 and subsequent letter dated December 29, 2009. See Saidis Affidavit, particularly Exhibits "H" and "I". Plaintiff executed the necessary loan documents, without spousal guarantees, in accordance with Defendants' counsel's instructions. After Plaintiff accepted the terms, Defendants, apparently through Randy Diehl, made a new demand for spousal guarantees to their counsel the evening of December 30, 2009, a new demand which was not even conveyed to Plaintiff until December 31, 2009, New Year's Eve. (See Christopher Rice Deposition, October 15, 2010 at 18; see Saidis Affidavit, particularly Exhibit "J"). Defendants were aware at that time that one or more of the members of Plaintiff were out of town and that it would be impossible for Plaintiff to provide spousal guarantees until they returned to Carlisle. See Saidis Affidavit. A true and accurate copy of a letter from Robert Saidis to Christopher Rice, attached as Exhibit "E" to the Saidis Affidavit, states that Mr. Saidis will be out of the office and verifies Plaintiff's awareness that Defendants' own counsel will be out of the office. By way of further response, Defendants' counsel, Chris Rice, Esquire, in a voicemail of December 28, 2009, indicated that he would not be in the office on December 31, 2009. A true and accurate verbatim transcript of the voicemail of December 28, 2009 left by Christopher Rice, Esquire is attached as Exhibit "G" to the Saidis Affidavit. By way of further response, knowing that one or more of the members of Plaintiff were out of town, and having already agreed that final issues and documents would be addressed during the week of January 4, 2010, Defendants inexplicably stated that if spousal guarantees were not provided on the same day as newly demanded, "it appears that we do not have a deal and the current agreement will expire." A true and accurate copy of the email from Counsel for Defendants is attached as Exhibit "J" to the Saidis Affidavit. if. Denied as the document speaks for itself. By way of further response, the letter of December 24 was superseded by subsequent negotiations and agreements between the parties and Defendants' letter dated December 29, 2009 clearly shows the terms agreed upon by the parties after their negotiations. See Saidis Affidavit. 12. Denied as the document speaks for itself. By way of further response, Defendants knew that actual settlement would not occur December 31, 2009. Defendants, through Donald Diehl, received a hand-delivered copy of the letter dated December 29, 2009. (See Christopher Rice Deposition, October 15, 2010 at 20). Defendants' counsel did not provide notice that his clients objected to the terms of seller financing and once again were requiring spousal guarantees until December 31, 2009, after Plaintiff had executed the loan documents and forwarded them to Defendants' counsel, and knowing that Mr. Saidis would be out of town on New Year's Eve. By way of further response, Defendants, through Randy Diehl, allegedly objected to the lack of spousal guarantees after Plaintiff accepted the terms as offered by Defendants and after Plaintiff had substantially complied with all material terms. See Saidis Affidavit. 13. Denied. To the contrary, the parties agreed upon the terms of seller financing. By way of further response, Defendants' Counsel indicated that "I think we have a deal" and that he would send a confirmation letter, which is the letter dated December 29, 2009 outlining the terms proposed by Defendants. Plaintiff executed the loan documents pursuant to Defendants' instructions for Defendants' counsel to review. By way of further response, on January 5, 2010, after all members had returned to Carlisle and were able to discuss Defendants' 11`h hour demand, Plaintiff agreed to provide spousal guarantees. Plaintiff substantially complied with the agreed upon terms. See Saidis Affidavit, particularly Exhibits "H", "I" and "M". (It is worth noting that December 31, 2009, New Year's Eve, was a Thursday. Friday, January 1, 2010 was New Year's Day, followed, obviously, by a Saturday and a Sunday. Thus, January 4, 2010 was the first business day of 2010. Labeling Defendant's December 31 demand as an "11`" hour" demand is, under the circumstances, an understatement.) 14. Denied as stated. Plaintiff requests this Honorable Court to order and direct Defendants to convey the subject property pursuant to the terms agreed upon, including providing seller financing, which were terms agreed upon by the parties. 15. Denied. Plaintiff and Defendants negotiated terms for seller financing and did reach an agreement. By way of further response, Defendants, knowing that Mr. Saidis was out of town and unable to provide any further documents on December 31, 2009, demanded spousal guarantees after Plaintiff accepted the terms of Defendants' offer. Plaintiff advised Defendants that spousal guarantees were acceptable on January 5, 2010. See Saidis Affidavit, particularly Exhibits "E", "H", "I" and "M". 16. Denied as stated. By way of further response, Defendants, through their attorney, wrote a letter dated December 29, 2009 to Plaintiff outlining the terms agreed upon by the parties. Plaintiff accepted Defendants' offer and executed the necessary loan documents in accordance with the letter dated December 29, 2009 on December 30, 2009. By way of further response, one or more members of Plaintiff were out of town and Defendants' counsel, as previously mentioned, stated that he would be out of the office on December 31, 2009 and therefore, any final details and issues would be settled during the week of January 4, 2010. See Saidis Affidavit. 17. Denied as stated and the document speaks for itself. By way of further response, Defendants wrongfully argue and suggest that they did not give their attorney the authority to draft the December 29, 2009 letter outlining the terms agreed upon by the parties. Prior to sending the aforementioned letter, the attorney for the Defendants, Christopher Rice, left Robert C. Saidis a voicemail on December 29, 2009. The letter dated December 29, 2009 is the confirmation facsimile noted in Attorney Rice's voicemail, wherein Attorney Rice states that he had spoken to his clients and was offering this last revision to the negotiated terms. Plaintiff accepted this offer by executing the necessary loan documents on December 30, 2009. Defendants failed to timely provide notice that the terms were not accurate. Defendants attempted to add the additional term requiring spousal guarantees on December 31, 2009, knowing that one or more of Plaintiff's members were out of town, knowing that their own attorney had already advised Plaintiff that he was to be out of the office on December 31, 2009, knowing that there was to be no actual settlement on December 31, 2009, and knowing that the parties had already agreed that the final details and issues of the deal would be finalized the week of January 4, 2010. See Saidis Affidavit. 18. Denied as a conclusion of law. By way of further response, Plaintiff and Defendants entered into an agreement regarding seller financing. In the alternative, Plaintiff substantially complied with the agreement of the parties and therefore, the doctrine of substantial compliance applies. See Saidis Affidavit. 19. Denied as a conclusion of law. By way of further response, while Defendants correctly state a general proposition that an attorney cannot bind his clients without express authority, the Superior Court has clarified this general proposition by stating that "attorneys did no more than communicate their clients' respective positions to opposing counsel, as they are inherently authorized to do." See In re Condemnation of Lands, Easements and Rights of Way in West Pennsboro Twp. 699 A.2d 1331 (Pa. Super. 1997). Defendants' attorney, in his voicemail of December 29, 2009 and subsequent confirmation letter dated December 29, 2009, was accurately stating his clients' terms as he is inherently authorized to do. Plaintiff accepted those terms. By way of further response, a "client may be deemed to have ratified his or her attorney's act if the client does not repudiate it promptly on receiving knowledge that the attorney had exceeded his or her authority." See Yarnall v Yorkshire Worsted Mills, 87 A.2d 192 (Pa. 1952). Defendants did not promptly repudiate the terms agreed upon by the parties, but rather Defendants waited until December 31, 2009 to inform Plaintiff that they once again required spousal guarantees knowing that one or more of the members of Plaintiff were out of town and that it would be impossible for Plaintiff to obtain those spousal guarantees that same day. The actions and course of negotiations demonstrate that Defendants breached their obligation under the Agreement of Sale and under the agreed terms of seller financing. It would be fundamentally unjust to permit Defendants to avoid their contract obligations under these circumstances, and Defendants should be estopped from relying on a December 31, 2009 "deadline" under the circumstances. There is a sufficient legal basis for the court to find that Defendants have breached the Agreement of Sale and the agreed terms for seller financing through arbitrary and capricious behavior. By way of further response, Plaintiff does not believe that Defendants' attorney exceeded his authority and that the parties agreed upon the terms of seller financing. See Saidis Affidavit. 20. Denied as the deposition speaks for itself. 21. Denied as the deposition speaks for itself. By way of further response, Christopher Rice, Esq. testified that Donald Diehl was communicating with him as counsel for Defendants on behalf of the original parties and that he (Mr. Rice) received instructions from him. Defendants, through Randy Diehl, not Donald Diehl, advised Mr. Rice that Defendants required spousal guarantees on the evening of December 30, 2009 after the parties agreed upon the terms of seller financing. (See Christopher Rice Deposition, October 15, 2010 at 18). 22. Denied as the deposition speaks for itself. By way of further response, the issue of whether Christopher Rice had authority to bind his clients is a smokescreen by Defendants. Further, the parties, through their actions and correspondence, agreed upon the terms of seller financing. By way of further response, Plaintiff, at a minimum, substantially complied by agreeing to spousal guarantees on January 5, 2010 when the members of Plaintiff returned to town. See Saidis Affidavit, particularly Exhibit "M". 23. Denied as a conclusion of law. By way of further response, the parties entered into an Agreement to provide seller financing and Plaintiff provided all of the loan documents on December 30, 2009. By way of further response and in the alternative, Plaintiff substantially complied with all of Defendants' requirements. By way of further response, Defendants failed to timely repudiate the terms of the letter dated December 29, 2009 when they were aware that Plaintiff and their own counsel would not be in the office on December 31, 2009. See Saidis Affidavit. 24. Denied as the complaint speaks for itself. 25. Denied as a conclusion of law. 26. Denied as a conclusion of law. By way of further response, Defendants requested an additional term after the parties agreed upon terms regarding seller financing and after Plaintiff executed the necessary loan documents. Defendants breached the Agreement of Sale by not complying with the terms that they entered into with Plaintiff. The actions and course of negotiations demonstrate that Defendants breached their obligation under the Agreement of Sale and under the agreed terms of seller financing. There is a sufficient legal basis for the court to find that Defendants breached the Agreement of Sale and the agreed terms for seller financing through arbitrary and capricious behavior. Defendants have not conveyed the property as they are required to do. By way of further response, Plaintiff substantially complied by agreeing to provide spousal guarantees when the members of Plaintiff returned on the week of January 4, 2010 and the Defendants still refused to settle. See Saidis Affidavit. This is a classic case for application of the equitable remedy of specific performance. WHEREFORE, Plaintiff respectfully request that this Honorable Court deny Defendants' Motion for Summary Judgment. Respectfully submitted, SAIDIS, SULLIVAN & ROGERS Daniel L. Sullivan, Esquire Attorney ID No. 34548 Jason E. Kelso, Esquire Attorney ID No. 209107 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorneys for Plaintiff VERIFICATION I verify that the statements made in the foregoing Response to Defendants' Motion for Summary Judgment are true and correct to the best of my knowledge or 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. CERTIFICATE OF SERVICE I hereby certify that on this Q `day of March, 2011, a true and correct copy of the foregoing Response to Defendants' Motion for Summary Judgment was served upon the party listed below, via First Class Mail, postage prepaid, addressed as follows: Hubert X. Gilroy, Esquire MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 SAIDIS, SULLIVAN & ROGERS Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717-243-6222 YORK ROAD PROFESSIONAL OFFICES, LLC, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-2461 CIVIL TERM SUZANNE DIEHL, and IN EQUITY NICHOLAS PALLANTE and BRENDA PALLANTE, husband and wife r • / aka -n ? Defendants ; ? w .i - ?FrY Y Y ?t k.., . < AFFIDAVIT OF ROBERT C. SAIDIS I, Robert C. Saidis, Member of York Road Professional Offices LLC bein d ly , , g u s worn according to law, hereby depose and state as follows: I am a member of York Road Professional Offices, LLC., and as such I managed the negotiations described below. 2. On April 4, 2008, York Road Professional Offices, LLC entered into an Agreement of Sale with Genevieve Diehl and Suzanne Diehl ("Sellers") regarding the purchase of commercial property on York Road, Cumberland County, Pennsylvania. 3. In Early December 2009, another member of York Road Professional Offices, LLC, William Kronenberg, wrote a letter to Donald Diehl, husband of Suzanne Diehl, requesting a six month extension to the Agreement of Sale. A true and accurate copy of this letter is attached as Exhibit "A" and incorporated by reference. 4. Mr. Kronenberg believed that Donald Diehl was acting as a representative of his wife, Suzanne Diehl. 5. On or about December 16, 2009, I received a letter from Sellers' counsel, Christopher Rice (hereinafter "Rice"), wherein he indicated that his clients were not interested in an extension of the settlement date and for the first time stated that they were adamant about settling by December 31, 2009. Up to this time, there had been two (2) extensions of the settlement date. A true and accurate copy of this letter is attached as Exhibit "B". 6. After I received the letter dated December 16, 2009, I entered into negotiations regarding seller financing with Rice. 7. On December 22, 2009, I wrote a letter to Rice requesting seller financing and/or an extension of the settlement date and explaining the current state of the economy and that private financing was not possible for speculative lending. A true and accurate copy of this letter is attached as Exhibit "C". 8. On December 23, 2009, I received a letter from Rice as a follow up to a voicemail message he left for me, wherein he indicated the terms for seller financing agreeable to his clients. This letter included specific payment terms along with a request for personal guarantees of all partners and spouses. A true and accurate copy of this letter is attached as Exhibit "D". 9. On December 24, 2009, I sent Rice a letter responding to his clients' offer for seller financing. In this letter, I advised him, among other things, that I would be out of the office from December 24, 2009 until January 4, 2010, but that I would be able to sign and executed the appropriate documents. Additionally, I confirmed the understanding between Rice and me that we could finalize any necessary items during the week of January 4, 2010, if necessary. A true and accurate copy of the letter is attached as Exhibit "B". 10. On December 28, 2009, I received a voicemail from Rice at 9:23 a.m., wherein Rice indicated that he had spoken to his clients regarding my letter dated December 24, 2009. Mr. Rice stated that his clients wanted monthly payments and guarantees and wanted to make sure that York Road Professional Offices, LLC would pay for his review of the documents, which included a Note, Mortgage, Deed and.Assignment. Rice stated that he would be in until December 30, 2009; therefore, we could settle up to that date. Rice stated that if I was "adamant" about not providing spousal guarantees, that we could limit it to just me and William Kronenberg; however, he had not discussed this particular item with his clients yet. A true and accurate verbatim transcript of this voicemail is attached as Exhibit "P. 11. On December 28, 2009, I received a second voicemail from Rice, wherein he indicated that he had talked to Donald Diehl and his family. Mr. Rice stated that his clients were willing to do seller financing so, "that gives us to the [December] 31St," but he now stated that he would be out on the 31 St and hoped that we could have the terms settled by the 30th. Rice stated the desired interest rate, term and payments for his clients. A true and accurate verbatim transcript of this voicemail is attached as Exhibit "G". 12. On December 29, 2009, I received a third voicemail from Rice, wherein he stated "I think we have a deal." He continued that "I have one revision that I am hoping you are fine with. Obviously, it will make your eyes blink, but the note will be for two years, the sale obviously will occur on the [December] 31St." Rice stated the terms and stated that he would be sending a fax confirmation. He also stated that "If it is not okay [the revisions], let me know, otherwise please be in touch with me tomorrow because I need to review the documents. It will be the Note, Mortgage, Guarantees." A true and accurate verbatim of Rice's voicemail dated December 29, 2009 is attached as Exhibit "H". 13. After I teceived the December 29, 2009 voicemail from Rice, I received the e- mailed confirmation letter wherein Rice states "After our negotiations on December 29, 2009, it appears that we have reached the following agreement." He outlined the terms, which states in paragraph 5 that "Personal/Unlimited Guarantees will be required of all partners which includes you [Robert C. Saidis], William Kronenberg, and Andrew Kronenberg." A true and accurate copy of this letter is attached as Exhibit "I". 14. On December 30, 2009, after not receiving any additional communications from Rice or Sellers, regarding the terms of seller financing or other issues, and knowing that I would be out of town on December 31, 2009 and that Rice would be out of the office on December 31, 2009, I executed all of the documents including Note, Mortgage, Assignment, and Personal/Unlimited Guarantees of the members of York Road Professional Offices, LLC and sent them to Rice for his review. It was my understanding that any final details would be worked out when we all returned to our respective offices during the week of January 4, 2010. 15. In addition to the correspondence between the parties, Rice and I had several conversations from December 24, 2009 through December 29, 2009. During these conversations, Rice and I discussed that any final details and the resolution of any outstanding matters would occur during the week of January 4, 2010, and the funds would be disbursed the week of January 4, 2010. Rice never objected to this schedule but rather agreed with me that the resolution of any outstanding matters would be addressed during the week of January 4, 2010. 16. As I had previously advised Rice, I left Carlisle late on December 30, 2009 and was out-of-town from that point until January 4, 2010. 17. On December 31, 2009 at 8:52 a.m., I received through my Blackberry an email from Rice, wherein he indicated that his clients were now, once again, requiring that all partners and their wives execute personal guarantees. At the time this email was sent, Rice and presumably also his clients knew that I was out of town and that we would be unable to provide these spousal guarantees on that same day. Rice indicated that if these guarantees could not be provided on that day, then the deal and current agreement would expire. A true and accurate copy of this email is attached as Exhibit "J". 18. On December 31, 2009 at 10:04 a.m., I responded via email from my Blackberry to Rice and stated that we have provided all of the other requested documents and that I had not been able to contact William Kronenberg and that Andrew Kronenberg is single. A true and accurate copy of this email is attached as Exhibit "K". 19. On December 31, 2009 at 2:46 p.m., I received through my Balckberry an email from Rice indicating that his clients were no longer willing to provide seller financing for various reasons and that the only option was to purchase the property. A true and accurate copy of this email is attached as Exhibit "U. 20. On January 4, 2010, I was able to contact William Kronenberg and I drafted a letter, dated January 5, 2010, to Rice indicating that spousal guarantees were acceptable and that we would provide the spousal guarantees to Sellers. A true and accurate copy of this letter is attached as Exhibit "M". 21. On January 5, 2010, I had a telephone conversation with Rice in which I advised him that spousal guarantees would be provided. Rice followed up our telephone conversation with an email wherein he stated that it was his clients' position that the agreement of sale terminated as of December 31, 2009. A true and accurate copy of this email is attached as Exhibit "N". 22. The statements made herein are made on the basis of my personal knowledge. Date Robert C. aidis COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ss On this, the day of A , 2011, before me, the undersigned officer personally appeared Robert C. Saidis, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. In Witness Whereof, I have hereunto set my hand and official seal. C-%- ? (SEAL) Title of Officer TARIA SEAL BARBARA E. STEEL, Notary Public Carlisle Boto, Cumberland County, PA M Commission E ices June 7, 2011 r???'?'r Dec 04 09 11;44a SMITHS APPI CE Don Diehl ' 4 E. High Street Carlisle, PA 17013 Dear Don, i ll '49=0035 P.1 C_1 My partners and I are asking for an extension to settle on the property on York Road. As you know times are tough and Are are in no position to settle at this time. Here are some reasons why: 1) The economy, inability to pay cash. 2) The actual value has gone down. Appraised at $276,000 and paid $301,000. Now, 2009/2010, probably less then $276,000. 3) Still need other approvals, including the H.O.P. 4) We listed it with Hooke, Hooke and Eckman. It is now in the multi-list. 5) Financing is not available without tenants. 6) Saidis is looking at selling his law office to move to site. We need two tenants to make this happen and that is dependent upon bank financing. 7) The compaction problems. We would ask for a 6 month extension. We will pay an additional $10,000 to be put towards the purchase price. If that is acceptable to you and your family please let me know by the 15`h of December. Verb'Tru1y Yours, William Kronenberg I I f? I ?-r j MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTS-ON WILLIAM F MARTSON DAvm A. FIT7SIMONS JOHN B. FOWLER III CHRISTOPHER E, RICE LAW OFFICES DANIEL K. DEARnORPF * JENNIL=BR L. SPEARS THOMAS J. WJLLIAw SETH T. MosEBEY NO V. Orro III TRIIDY E. FEHLLNGER 10 EAST HIGH STREET HUBERT X. GILROY KATIE J. MAXWELL CARLISLE, PENNSYLVANIA 17013 GEORGE B. FALLER JR.* JACOB M. THEIS f TELEPHONE (717) 243-3341 *BOARD CRI77PIRD CIVIL TRIAL SPRCIALISr FACSIMILE (717) 2434850 I INTERNET www.mattsonla-,vcom December 16, 2009 PERSONAL AND CONFIDENTIAL Robert C: Saidis, Esquire SAIDIS, FLOWER & LINDSAY 26 West High Street Carlisle, PA 17013 RE: Diehl to Kronenberg and Saidis - Jonathan Park, Lots 71, 72, 73 and 74, South Middleton Township, Pennsylvania Our File No. 12303.27 Dear Bob; Mr. Don Diehl received a letter from Mr. William Kronenberg regarding the proposal to extend the Agreement of Sale. However, after speaking with Mr. and Mrs. Diehl, they are adamant about settling on or before December 31, 2009, and are not interested in any further extensions. Therefore, could you please contact us at your earliest. convenience to inform us when settlement will occur so we can advise our client of the same and prepare the proposed deed. Should you have any questions, please feel free to contact our office. Very truly yours, MARTSON LAW OFFICES hRice CER/mmp cc: Mr. and Mrs. Donald E. Diehl FAFILESICIierRs112303 DiehP12303.21=5 INFORMATION • ACY SM 1/? ?/' r JOHN E. SLIKE ROBERT C. SAIDIS JAMES D. FLOWER, JR. CAROL J. LINDSAY JOHN B. LAWI DANIEL L. SULLIVAN ALBERT H. MASLAND DEAN E. REYNOSA THOMAS E. FLOWER MARYLOU MATAS JASON E. KELSO LAW OFFICES SAIDIS, FLOWER & LINDSAY A PROFESSIONAL CORPORATION 26 WEST HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717) 243-6222 - FACSD41LE: (717) 243-6486 EMAIL: attorney@sfl-law.com www.sfl-law.com December 22, 2009 Via email crice(almartsonlaw.com Christopher E. Rice, Esq. Martson Law Offices 10 East High Street Carlisle, PA 17013 Re: Diehl to Kronenberg and Saidis Jonathan Park, Lots 71, 72, 73 and 74 Dear Chris: Thank you for your recent correspondence. CAMP HILL OFFICE 2109 MARKET STREET TELEPHONE: (717)737-3405 FACSIMILE: (717)737-3407 REPLY TO CARLISLE We entered into the Agreement of Sale in April 2008. In a little more than a year and one half, we have secured substantially all of the approvals from South Middleton Township. Unfortunately, at the same time, the economy has deteriorated to its worst state since the Great Depression. Despite our best efforts, we have been unable to locate any renters or buyers for the units we have proposed to build. We have been advised by various financial institutions that there are no funds available for speculative lending. Needless to say, we have few options that are available. The Diehls, up to this date, have been most understanding of our problems. In an effort to accommodate their concerns and to offer additional suggestions, which may be agreeable, I would offer the following: Christopher E. Rice, Esq. December 22, 2009 Page 2 1. Seller Financing. The seller would provide seller financing on the balance of the purchase price. We would pay interest only at 4.5% on each annual anniversary date. This interest rate is significantly higher than the return on any cash investment. The seller financing would contain a three year balloon. 2. We would extend the current agreement, without any additional deposit, with the understanding that the Diehls would receive 2.5% of the purchase price on each unit that is sold. If my estimates are correct, this may increase the revenue to the Diehls by approximately $50,000. We are also willing to consider other options, which may be appealable to the Diehls. This also includes the previous suggestion of Doc Kronenberg. Unfortunately, based on today's market, settling without any proposed users for the property is beyond our ability. Please thank Don and his family members for their kind consideration of our various proposals. We look forward to working with them in the future on this project. Very truly yours, SA S, F OWER & LINDSAY C Robert C. Saidis RCS/pm CC: William Kronenberg Andrew Kronenberg ?(,?'$rr 12/23/2009 15:38 717-2 .850 MARTSON LAW PAGE 01/02 MARTSON DF-ARDORFF WILLIAMS 0T'T'O C. ILROY & FALLER MAIR"IrSON LAW OFFICES 10 EdST ITu;H Smimp--r CARLISIX, PramrwoA 17013 7)T..PrRora (717) 243-3341 PACSINUA (717) 243-1550 7.N,rnP,m,-r wwW.Mgrlsonlaw.rnm WILLIAM F MAinsm JOHN R F(MAR T.U DA.mn K DiLimaRPP THOMAS J. WIIJJAMS* No V. 0-M) III JiUSERT X. ( gjkoY GmRo$ :S, FALLER JR.w T,mzl> CRen01s, DAvm A FITZSIMONS CHRisrarsi :R F... RICE JP.NNTPPR L. SMAR.S SB37i T. MOSSBBY TRUDY E. FL•MLINGRR KATIL• J. MAXWELL JAroz M. Tnats CMLTIDALSr20e 4x December 23, 2009 PERSONAL AND CONMEN IAL VIA FACSIMILE ONLX 243-6486 Robert C. Saidis, Esquire SAIDIS, FLOWER & LINDSAY 26 West High. Street Carlisle, PA. 17013 RE: Die11.1 to Kronenberg and Saidis -- Jonathan Park, Lots 71, 72,73 and. 74, South Middleton Townsbip, Pennsylvania Our File No. 12303.27 Dear Bob: . We are in receipt of your response letter dated December 22, 2009. As a follow-up to my voice-mail message today, our clients are agreeable to the following: 1. Settlement to occur by end of year. (December 31., 2009); 2. Buyer would pay $10,000 at settlement, 'wluch would be applied to tb.e purchase price; 3. Seller. would provide seller financing on the balance of the purchase price with the following terms: a. interest only payments due .monthly; b. interest rate fixed at 6.00%; c. term - 2 years; d.. personal, guarantees of all partners and spouses; C. title insurance and endorsements to be issued on. behalf of Seller (loan policy); f assignment of ca.u.tracts, plans, agreements, and the Like aff-6cting the Property; and g- Buyer to pay all closing costs incurred by Seller. I N FORMATION 0 CACY SM MARTSON LAW PAGE 02/02 j 12%2372009 15:38 717-2 ;850 Robert C. Saidis, Esquire SATDIS, FLOWER & LINDSAY December 23, 2009 Page 2 Could you.please advise us of your concurrence with the "above terms aild of a. settlement date. Thank you and happy holidays. Very truly yours, MAr-R?TSSON LA.W OFFICES Christopher E. Rice CER/mmp cc: Mr. anal. Mrs. Donald E. Dichl (via hand delivery) MT?1LE&%(7.kntf112303 DWI) 2303 27,m6 IN PO RMA.TI 0 N AD vi C, z • AD Yo CACY sM iwFil' LAW OFFICES SAIDIS, FLOWER & LINDSAY A PROFESSIONAL CORPORATION 26 WEST HIGH STREET JOHN E. SLIKE CARLISLE, PENNSYLVANIA 17013 CAMP HILL OFFICE ROBERT C. SAIDIS TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486 2109 MARKET STREET JAMES D. FLOWER, JR. EMAIL: attorney@sfl-law.com TELEPHONE: (717)737-3405 CAROL I LINDSAY www.sfl-law.com FACSIMILE: (717)737-3407 JOHN B. LAMPI DANIEL L. SULLIVAN ALBERT H. MASLAND DEAN E. REYNOSA THOMAS E. FLOWER MARYLOU MATAS REPLY TO CARLISLE JASON E. KELSO December 24, 2009 Via email criceAmartsonlaw.com Christopher E. Rice, Esq. Martson Law Offices 10 East High Street Carlisle, PA 17013 Re: Diehl to Kronenberg and Saidis Jonathan Park, Lots 71, 72, 73 and 74 Dear Chris: Thank you for your December 23, 2009 fax. Responding to your numbered and lettered paragraphs, I would offer the following: 1. We are agreeable to settlement by December 31, 2009. 2. Payment of an additional $10,000, applicable to the purchase price, is agreeable. 3. Our response to the terms offered for financing would be as follows: a. For a variety of internal, financial reasons, we would suggest interest be paid annually. b. We are agreeable to the 6.00% interest rate. C. In an effort to compromise, we would request the term of 2-1/2 years. The obvious reason is that, in our view, the likelihood of an economic recovery remains slight. In addition, extending the agreement to June 30, 2012, allows us three annual periods during which we feel there will be the most economic activity; i.e., January 1 - June 30. d. Personal guarantees of the partners and spouses are not acceptable. The borrower would be the York Road Professional Office, LLC.' The Diehls, in our opinion, would be adequately protected in that (1) they will receive the interest payment, (2) the benefit of the assignment of contracts adds significant value, (3) there has been an approximate 10% down payment and (4) the land, itself, as security. e. Title insurance is acceptable, provided by our office. f. The Assignment of the contracts is acceptable. g. Buyer will pay all closing costs incurred by the seller, except for transfer tax. This is subject to our firm preparing all the documents (Note, Mortgage, Deed and Assignment) for your review on behalf of your clients. I will be out of the office from noon today until January 4, 2010. If this is acceptable, I will arrange to have the appropriate documents prepared and executed. You can reach me on my cell phone next week (574-3930). Your voice mail indicated that you would be out of the office on December 30. You will have all the documents, in advance, that we can sign and exchange, hopefully before your departure, or upon your return (even though they will be executed December 31, 2009, or earlier) during the week of January 4, 2010, if necessary. Hopefully, this is acceptable and would continue the long relationship of mutual cooperation that we have with the Diehls. Thank you for your cooperation. season. Best wishes for a happy holiday Very truly yours, & LINDSAY is RCS/pm cc: William Kronenberg Andrew Kronenberg 0 0 MEMORANDUM December 28, 2009 TO: File FROM: RCS SUBJECT: Jonathan Park Voice message from Chris Rice, Esq. at 9:23 AM - 12128109 I am in receipt of your letter dated December 24 regarding Diehl to Kronenberg and Saidis. I talked to the Diehls this morning about it. They still want two years. I'll touch on the things different. They want paid monthly the interest. The guarantees they still want. They are okay if you guys will prepare the Note, Mortgage, Deed and Assignment. They want to make sure you will pay for my review of the same and however you want to handle that. Just confirm it is okay. The main thing, obviously, is they want monthly payments and guarantees. I did not suggest to them. If you are adamant about no guarantees, we could at least limit it to you and Mr. Kronenberg, rather than with the wives. I didn't talk to them about that. Let me know your thoughts. Just want to let you know, they are willing to just let this go. I am in until the 30th. We can settle up to that date. Please let me know your thoughts today so we can get this done for you guys before the agreement expires. /pm j?ow/ . I' MEMORANDUM December 28, 2009 TO:' File FROM: RCS SUBJECT: Jonathan Park Voice message, 12128109, from Chris Rice, Esq. (243-3341) Wanted to get back to you regarding the deal to Kronenberg and Saidis. I talked to Don and his family today. What they agreed upon, they would be willing to do the seller financing so that gives us to the 31st (I'm out on the 31st). Hope we can to on the 30th. I will prepare the loan documents. They are looking at $10,000 they would like paid at the settlement, which will be applied to the purchase price. The balance would accrue interest at 6% per annum, interest payments monthly and a balloon in two years. The reason they want to get this property sold is due to the age of the parents. They would be agreeable to two years. I will put in a letter and send to you to see if you have any questions. /pm No letter received. oolv'lf MEMORAND UM December .29, 2009 TO: File FROM: RCS SUBJECT: Jonathan Park Voice message from Chris Rice, Esq. at 1:15 PM - 12/.29/09 (243- .3341) Hi, Bob, it's Chris Rice. I think we have a deal. I have one revision that I am hoping you are fine with. Obviously it will make your eyes blink, but the Note will be for two years, the sale obviously will occur on the 31st. The Note will be for two years with an option to extend it for one additional year, for a total of three. But upon the extension, if you guys do exercise that option, they want 10% interest and $40,000 down towards the purchase price. Interest, obviously, would not be towards. So it will be 6% for two years, then at the beginning of the expiration of the first two years, it would go to 10%. Obviously, they just want to make sure that is motivation for you guys to settle and they get their property and if not, it will just continue and you will get that third year. I'm assuming that is okay. I will send you a fax confirmation it. If it is not, let me know, otherwise please be in touch with me tomorrow because I need-to review the documents. It will be Note, Mortgage, Guarantees. I do not mind preparing them, but if you think it will save money, you doing it and me reviewing, that is fine. But I still will have costs reviewing that the .Diehls want you to pay for. 717-243-3341. Thanks, Bob. /pm ??,?,gir ?VIART S0N )EARQ0RFF W1 MAPTSON LAW OFFICES 10 F..AST NIGH STRF.RT CARLISI.e, PL'NNSI'LVANIA 17013 TELEPHONL (717) 243-3341 FACSIMILE (717) 243-1650 INTP.RNI:T %mul.marrsonlimcom VIA E-MAIL (rsaidis (WI-law-com) Robert C. Saidis, Esquire SAIDIS, FLOWER & LINDSAY 26 West High Street Carlisle, PA 17013 WILLIAM F. MARTSUN JOHN B. Powi.FR Ill DANIEL K. DFARDORFF THOMAS J. WILLIAMS* No V. Orro III HUHERT X. Gum GF_mcw.. B. FAI.LRR JIL* R DAvm A, FirzsimoNs CHRIST OPHER E. RU:E JENNIFER L. SPEARS SFTH T. MosP.RBY TRUDY E. FpHuNGzR KAnF J. MAXIVSLI. JACOB M, THFIs 'Boman CarrmiD CML IkuL Snacmurr December 29, 2009 RE: Diehl to Kronenberg and Saidis - Jonathan Park, Lots 71, 72, 73 and 74, South Middleton Township, Pennsylvania Our File No. 12303.27 Dear Bob: After our negotiations on December 29, 2009, it appears that we have reached the following agreement: 1. Settlement will occur by December 31, 2009. 2. Buyer will pay $10,000.00 at settlement to be applied towards the purchase price. 3. The Buyer will receive Seller Financing for the balance of the purchase price. The note will be for two years (December 31, 2011) with the option to extend for one additional year (December 31, 2012); provided, however, that Buyer must pay an additional $40,000.00, which will be applied to the purchase price, in order to exercise the option. 4. The interest rate for the first two years will be six (6%) percent and will increase to ten (10%) percent during year three if the option is exercised. 5. Personal/Unlimited Guarantees will be required of all partners which includes you, William Kronenberg, and Andrew Kronenberg. 6. Title Insurance will be issued by your office for the benefit of the Seller with the appropriate endorsements as determined by Seller. 7. Buyer may prepare all loan documents including a Note, Mortgage, Deed, Guaranties, Assignment of Contracts and any other documents deemed appropriate by Seller, which will be reviewed and approved by Seller's counsel. 8. All costs incurred by Seller, except for the transfer tax, will be paid for by Buyer. INF ORMATI V 0 C A C Y SM VIA E-MAIL (rsaidis(a sfl-law.com) Robert C. Saidis, Esquire SAIDIS, FLOWER & LINDSAY December 29, 2009 Page 2 The above is being forward to our clients to confirm the accuracy of the terms. Please contact us as soon as possible so that we can arrange settlement. Thank you. Very truly yours, MA'R?TSOON LAW OFFICES Christopher E. Rice CER/j ad cc: Mr. and Mrs. Donald E. Diehl (via hand delivery) F:\FILFMCGen1s\12303 NAR12303.27=7 INFORMATION • ADvI cF • ADvo CACY SM ??'+??'T Page .5 of -3 From: "Christopher E. Rice" <crice@martsonlaw.com> Date: Thu, 31 Dec 2009 08:52:05 -0500 To: <rsaidis@sfl-law.corn> Subject: Jonathon Park Bob As a follow-up to our telephone conversation today, our clients have reviewed the terms that I forwarded to you and are requiring that all partners and their wives execute a personal guaranty. If you are unable to obtain all guaranties as discussed, it appears that we do not have a deal and the current agreement will expire. Thank you, Christopher E. Rice Martson Deardorff Williams Otto Gilroy & Faller Ten East High Street Carlisle, PA 17013 Telephone (717) 243-3341 Facsimile (717) 243-1850 Electronic Mail crice(a)martsonlaw.com CONFIDENTIALITY NOTICE: The above communication is for the personal use of the intended recipient(s) only. This message may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, preserve, copy or distribute this message. Unauthorized use, disclosure or distribution is prohibited and may be unlawful. If you are not an intended recipient, or if you believe that you have received it in error, please reply to the sender that you have received the message in error, then delete it. Thank you. 1/19/2010 ?xN??fT From: Robert C. Saidis [mailto:rsaidis@sfl-law.com] Sent: Thursday, December 31, 2009 10:04 AM To: Christopher E. Rice Cc: Andrew Kronenberg Subject: Re: Jonathon Park Andrew is single. I have not been able to contact Doc. I am out of the office as you know. The Diehl's have routinely accepted guarantees of the principals only. We have provided everything else requested. This was a possible compromise suggested by you which I was able to accomplish. We believe this is an appropriate resolution. After a good relationship we would ask your clients reconsideration of this one term. Thanks and best wishes for a happy new year. Sent from my Verizon Wireless B1ackBerry 1/19/2010 ?X?;?? ? . 0 0 Page 2 of 3 r'E. Rice Martson Deardorff Williams Otto Gilroy & Faller Ten East High Street Carlisle, PA 17013 Telephone (717) 243-3341 Facsimile (717) 243-1850 Electronic Mail crice(a)martsonlaw.com CONFIDENTIALITY NOTICE: The above communication is for the personal use of the intended recipient(s) only. This message may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, preserve, copy'or distribute this message. Unauthorized use, disclosure or distribution is prohibited and may be unlawful. If you are not an intended recipient, or if you believe that you have received it in error, please reply to the sender that you have received the message in error, then delete it. Thank you. From: Christopher E. Rice Sent: Thursday, December 31, 2009 2:46 PM To: 'rsaidis@sfl-law.com' Subject: RE: Jonathon Park Bob I was informed by my clients that they are no longer willing to provide seller financing for various reasons. Therefore, the only remaining option is for you to purchase the property. If you decide not to purchase the property, my clients would request that the plans, contracts, etc. be turned over to them. Thank you, Chris Christopher E. Rice Martson Deardorff Williams Otto Gilroy & Faller Ten East High Street Carlisle, PA 17013 Telephone (717) 243-3341 Facsimile (717) 243-1850 Electronic Mail crice c-bmartsonlaw.com CONFIDENTIALITY NOTICE: The above communication is for the personal use of the intended recipient(s) only. This message may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, preserve, copy or distribute this message. Unauthorized use, disclosure or distribution is prohibited and may be unlawful. If you are not an intended recipient, or if you believe that you have received it in error, please reply to the sender that you have received the message in error, then delete it. Thank you. From: Robert C. Saidis [mailto:rsaidis@sfl-law.com] Sent: Thursday, December 31, 2009 10:04 AM To: Christopher E. Rice Cc: Andrew Kronenberg Subject: Re: Jonathon Park Andrew is single. I have not been able to contact Doc. I am out of the office as you know. The Diehl's have routinely accepted guarantees of the principals only. We have provided everything else requested. This was a possible compromise suggested by you which I was able to accomplish. We believe this is an appropriate resolution. After a good relationship we would ask your clients reconsideration of this one term. Thanks and best wishes for a happy new year. Sent from my Verizon Wireless B1ackBerry 1/19/2010 ?X?gi?' LAW OFFICES ' SAIDIS, FLOWER & LINDSAY A PROFESSIONAL CORPORATION 26 WEST HIGH STREET PENNSYLVANIA 17013 CARLISLE CAMP HILL OFFICE JOHN E. SLIKE IS , TELEPHONE: (717) 243-6222 - FACSDME: (717) 243-6486 2109 MARKET STREET ROBERT C. SAID JR. FLOWER JAMES D EMAIL: attorney@sfl-law.com TELEPHONE: (717)737-3405 , . CAROL J. LINDSAY www.sf]-law.com FACSIMILE: (717)737-3407 JOHN B. LAMPI DANIEL L. SULLIVAN ALBERT H. MASLAND DEAN E. REYNOSA THOMAS E. FLOWER MARYLOU MATAS REPLY TO CARLISLE JASON E. KELSO January 5, 2010 Via email criceAmartsonlaw.com Christopher E. Rice, Esq. Martson Law Offices 10 East High Street Carlisle, PA 17013 Re: Dear Chris: Diehl/Jonathan Park Late in the afternoon of January 4, 2010, I had an opportunity to speak with Doc Kronenberg. Doc's wife, Jodi, is willing to guarantee the loan, as is my wife. This is consistent with the emails we traded on December 31, 2009, where the following was indicated: 1. Your client wanted spousal guarantees. 2. I was unable to get in touch with Doc Kronenberg. 3. We would talk on Monday, January 4, 2010. Needless to say, it is to everyone's advantage to salvage this deal. We are looking for a follow up upon Don's return to see if we can continue to work through this transaction. As always, we appreciate everyone's effort in this regard. I received your email of Tuesday, January 5, 2010, and certainly would consider this as another option if it is viewed more favorably by the Diehls and there are no additional costs to us. Needless to say, we would prefer the original terms as set forth in your December 29, 2009 letter, subject to a final agreement after your review of those documents and the spousal guarantees. yours, WER & LINDSAY RCS/pm CC: William Kronenberg Andrew Kronenberg OJ P?.g? -r 16 • r . From: Christopher E. Rice Sent: Tuesday, January 05, 2010 10:04 AM To: 'rsaidis@sfl-law.com' Cc: Diehl, Don; 'rndiehl@comcast.net Subject: RE: Jonathon Park Bob Thanks for speaking with me this morning. As discussed, the position of our clients is that the Agreement terminated as of December 31, 2009, since we could not reach an agreement at that time. However, I will speak with Randy and Don next- week when Don returns with your proposal to get this resolved within 6 months. Thank you, Chris 1/19/2010 a CERTIFICATE OF SERVICE I hereby certify that on this G? "e day of March, 2011, a true and correct copy of the foregoing Affidavit was served upon the party listed below, via First Class Mail, postage prepaid, addressed as follows: Hubert X. Gilroy, Esquire MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 SAIDIS, SULLIVAN & ROGERS Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717-243-6222 FAMES\Clients\12303 Diehl\12303.27 Kronenberg and Saidis\12303.27A\12303.27A.Order3 Hubert X. Gilroy, Esquire I.D. No. 29943 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants YORK ROAD PROFESSIONAL OFFICES, LLC, Plaintiff V. SUZANNE DIEHL, and NICHOLAS PALLANTE and BRENDA PALLANTE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. "2010-2461 CIVIL TERM CCD IN EQUITY ORDER AND NOW this ask day of March, 2012, upon consideration of the attached Motion, a Status Conference in the above case is scheduled for the 191w day of 2012, at / 36 m. in Courtroom No. 4 of the Cumberland County Courthouse. BY THE COURT: '7/? %4 A?. Kevin A/lAess, Judge CC: Daniel L. Sullivan, Esquire ? Hubert X. Gilroy, Esquire evp,1? s /K a, I -ed 31 a r''t (z I