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HomeMy WebLinkAbout10-3046PLEE" c T? MON'" to IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA +J Cus CIVIL DIVISION J: M Plaintiff(s) & Address(es) RL REINER, LLC P.O. Box 34682 Bethesda, MD 20827-0682 VS. Defendant(s) & Address(es) INDIAN SPRINGS ASSOC., LLC 6046 Edwards Drive Mechanicsburg, PA 17050 Case No. 1() - 304 U Civil Term Civil Action Equity PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in the above case Writ of Summons shall be issued and forwarded to A orne Sher' Please Cire1 c ice Date April 29. 2010 Signature of Attorney Print Name: Edward G. Puhl Address: 220 Baltimore Street Gettysburg. PA 17325 Telephone #: (717) 334-2159 Supreme Court ID Number: 55709 • • • • • WRIT OF SUMMONS TO: INDIAN SPRINGS ASSOCIATES LLC YOU ARE NOTIFIED THAT THE ABOVE-NAMED P IFF(S) HAS/HAVE COMMENCED AN ACTION AGAINST YOU. rothono/tary?/Clerk, Civil Division Date: by Deputy Cot i t_Wl P" # Trj" 2DIDI-JAi' 10 I( 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLN"iA CIVIL ACTION - EQUITY RL REINER, LLC, and/or its assigns, No. 10 -3046 a_oi 1-&04S a Maryland limited liability company, Plaintiff, V. INDIAN SPRINGS ASSOCIATES, LLC, A Pennsylvania limited liability company, Defendant. PRAECIPE FOR LIS PENDENS TO THE PROTHONOTARY: Please index the above-captioned action in equity as a lis pendens against the real property located in Southampton Township, Cumberland County, Pennsylvania, containing 39.8009 acres, fronting on Kline Road, as shown on a plan of lots in Plan Book 12 at page 122, LESS, HOWEVER, a tract containing 0.7797 acre and being designated as Lot No. 159 as shown on a plan of lots recorded in Plan Book 85 at page 136, more fully set forth in the deed recorded in Cumberland County Record Book 265 at page 3355. I hereby certify that this action affects title to or other interests in the above-described real property. PURL, EASTMAN & THRASHER Dated: April 29, 2010 By: Edward G. Puhl Attorney ID No. 55709 Attorney for Plaintiff 220 Baltimore Street 44. Do DO ArTq Gettysburg, PA 17325 C0 I I zoo (717) 334-2159 Q* RL REINER, LLC, Plaintiff V. INDIAN SPRINGS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO: 10-3046 CIVIL ACTION - EQUITY 'm `' C:) PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TWFIL-f COMPLAINT C-? -ri --s z?t?ro C-1 f';"E Pursuant to Pa. R.C.P. 1037, kindly enter a Rule upon RL Reiner, LLC, Plaintiff, to file a Complaint in this matter withing twenty (20) days after service of Rule or suffer Entry a Judgment of non pros. CUNNINGHAM & CHERNICOFF, P.C. By ce arrourt s , Esquire PA Supreme ID# 5879 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second. Street Harrisburg, PA 17110 Dated: September N, 2010 RL REINER, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. CASE NO: 10-3046 INDIAN SPRINGS ASSOCIATES, LLC, CIVIL ACTION - EQUITY a ?+ °r- s w Defendant rum, -- -? RULE TO FILE COMPLAINT TO: RL Reiner, LLCM . c/o Edward G. Puhl, Esquire' 220 Baltimore Street Gettysburg, PA 17325 1. You are notified that a Rule is hereby entered upon you to file a Complaint in th is matter within twenty (20) days after date of service of this Rule upon you. 2. If you do not file a Complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU UPON PRAECIPE 3. The date of this service of this Rule if service was by mail is the date of this mailing. Date: r onotary FAHome1B]WAD0CSJNSITE DEVELOPMENnIndian SpringsTraecipe to Enter Rule to File Complaint.Rule to File.wpd RL REINER, LLC, Plaintiff V. INDIAN SPRINGS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO: 10-3046 ; CIVIL ACTION - EQUITY n . s..'C• J'" N C? PRAECIPE TO ENTER APPEARANCE = y"' C) -t-I I'Y1- Please kindly enter the appearance of Bruce J. Warshawsky, Esquire and the Law Firm of Cunningham and Chernicoff, P.C., on behalf of Indian Springs Associates, LLC, the Defendant, in the above captioned action. CUNNINGHAM & CHERNICOFF, P.C. By BrucdJ. Wtfi7shawsky, Esquire PA Supreme Court ID# 58799 CUNNINGHAM & CHERNICOFF, P.C 2320 North Second. Street Harrisburg, PA 17110 Dated: September 1,/, 2010 CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant for the law office of Cunningham & Chernicoff, P.C., do hereby certify that a true and correct copy of the Praecipe to Enter Appearance in the above-captioned matter was sent first class U.S. Mail, First Class Mail, postage prepaid on this date, to the following: Edward G. Puhl, Esquire 220 Baltimore Street Gettysburg, PA 17325 GHAM & CHERNICOFF, P.C. Date: September U, 2010 B Julieanne Ametrano 2320 North Second Street Harrisburg, PA 17110 Telephone: (717)238-6570 F:\Home\BJW\DOCSI NSITE DEVELOPMENT\Indian Springs\Entry of Appearance. wpd • • J RL REINER, LLC, Plaintiff V.. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO: 10-3046 C7 C= 'M I-T1 r-nF ;==' INDIAN SPRINGS ASSOCIATES, LLC, CIVIL ACTION - EQUITY Defendant G- a CD CERTIFICATE OF SERVICE /* .,c. C") ?gy I, Julieanne Ametrano, Legal Assistant with the law firm Cunningham & Chernicoff, P.C., hereby certify that a true and correct copy of the Praecipe to Enter Rule to File Complaint filed September 24, 2010 and Rule to File Complaint issued by the Cumberland County Prothonotary on September 24, 2010 in the above-referenced matter and attached hereto as Exhibit "A" was served by first-class U.S. Mail, postage prepaid, to: Edward G. Puhl, Esquire 220 Baltimore Street Gettysburg, PA 17325 Date: September 28, 2010 CUNNINGHA-~--M & CHERNICOFF, P.C. lieanne Ametrano 20 North Second Street trrisburg, PA 17110 F:\Home\BJW\DOCS\INSITE DEVELOPMENT\Indian Springs\COS.Praecipe to Enter Rulempd E?IBIT 4A? ? y RL REINER, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. CASE NO: 10-3046 c7 2 -? INDIAN SPRINGS ASSOCIATES, LLC, CIVIL ACTION - EQUITY Defendant s3 r~' < 5> n "I, _ ca r C- a te ' PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO LE.. COMPLAINT - Pursuant to Pa. R.C.P. 1037, kindly enter a Rule upon RL Reiner, LLC, Plaintiff, to file a Complaint in this matter withing twenty (20) days after service of Rule or suffer Entry a Judgment of non pros. CUNNINGHAM & CHERNICOFF, P.C. B} Dated: Septemberaf, 2010 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second. Street Harrisburg, PA 17110 RL REINER, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. CASE NO: 10-3046 INDIAN SPRINGS ASSOCIATES, LLC, CIVIL ACTION - EQUITY c, ,ate Defendant r ? c/-> - t T; r r? M i RULE TO FILE COMPLAINT TO: RL Reiner, LLC ' r c/o Edward G. Puhl, Esquire 220 Baltimore Street Gettysburg, PA 17325 1. You are notified that a Rule is hereby entered upon you to file a Complaint in this matter within twenty (20) days after date of service of this Rule upon you. 2. If you do not file a Complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU UPON PRAECIPE 3. The date of this service of this Rule if service was by mail is the date of this mailing. Date: Jay,& 1 01 notary TRUE COPY FROM RECORD In Testimony whereof, l here unto set my hand and the seal of said Coiat at Carlisle, Pa. This...pZ.(? d 20,0 F:1Ho. S ITE DEVELOPMEN1Vndian SpringsTraecipe to Enter Rule to File Complaint.Rule to File.wpd RL REINER, LLC, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW INDIAN SPRINGS ASSOCIATES, LLC, Defendant NO. 10-3046 CIVIL TERM IN RE: DEFENDANT'S MOTION TO STRIKE LIS PENDENS ORDER OF COURT AND NOW, this 4`~ day of October, 2010, upon consideration of Defendant's Motion To Strike Lis Pendens, it is ordered that: 1. A Rule is issued upon Plaintiff to show cause why Defendant is not entitled to the relief requested; 2. Plaintiff shall file an answer to the motion within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Monday, January 10, 2011, at 11:00 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. b. Briefs shall be submitted at least seven days prior to argument. ;~ ~.~. ~ ~.., r- ~' ~` ~ ~ ~ ~~. ~~y ~ _,., ~'~- ~' L('3 ! lir ~^ C~.:. ~ c.J~ .,,..9 i.i.S ~ d ..1.. ~ BY THE COURT, ward G. Puhl, Esq. 220 Baltimore Street Gettysburg, PA 17325 Attorney for Plaintiff Bruce J. Warshawsky, Esq. `~0 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 Attorney for Defendant rc IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION -EQUITY RL REINER, LLC, No. 10-3046 Equity Plaintiff v. INDIAN SPRINGS ASSOCIATES, LLC, Defendant i !' REPLY TO MOTION TO STRIKE LIS PENDENS r AND NOW, comes Plaintiff, RL Reiner, LLC, by and through its counsel, Puhl, Eastman & Thrasher, and replies to Defendant's Motion to Strike Lis Pendens as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. ;,~, ~-~ ~.~ ~ ~ ~ ~ 5. Admitted. r i ~ _ ~' ~. -n m ~ '_~ r-- 6. Admitted. -`~; ~ ~ ~ Q ';~` : -~~, ~ ~ 7. Admitted ~ " " ~ ~ ~ . ~~= c -} ~;, c= ~ r~ ~fT7 8. Admitted. ~ ~~ _ ~ c,., -~ 9. Admitted. However, by way of clarification, Defendant has caused a Rule to issue compelling Plaintiff to file a complaint in this action, which Plaintiff has done, and in that complaint, Plaintiff has requested that the Court stay this action so that the parties can submit their dispute to a panel of arbitrators in Adams County, Pennsylvania. 1 10. Admitted. By way of clarification, although the parties agreed that the Court of Common Pleas of Adams County would be the forum in which to litigate this dispute if arbitration failed, a lis pendens must be entered in the county in which the real estate is located in order to provide notice to third parties that the property is the subject of litigation, regardless of where the litigation is conducted. 11. Denied. The Defendant refuses to attempt to meet the contingencies contained in the Real Estate Agreement of Sale, i.e., to sell other properties in order to raise sufficient funds to pay off PNC Bank, and is thus unwilling, but not unable, to currently convey clear title. Furthermore, paragraph 15 does not provide the exclusive remedy to Plaintiff for breach of contract. 12. Admitted. 13. Denied. For the reasons stated above, Plaintiff denies that Defendant is unable to carry out the Agreement of Sale since Plaintiff is willing to give Defendant time in which cure defects in title. 14. Denied. Seller is obligated to accept extensions of time under the Addendum to the Real Estate Agreement of Sale, and it is only when Plaintiff is not willing to wait any longer that Plaintiff must voluntarily strike the lis pendens. 15. Denied. The reasonableness of Defendant's conduct is a matter for the Court to decide, but so long as Plaintiff is willing to grant extensions of time so as to permit Defendant to cure title defects, it is unreasonable for Plaintiff to refuse to try to meet its contractual obligations. 2 16. Admitted. For purposes of clarification, while Defendant may by preliminary objection assert that the Court lacks jurisdiction over the subject matter, that is clearly not the case since the real estate in question is located entirely within Cumberland County, and no arbitration award or court order issued elsewhere could affect title to the real estate unless and until such award or order is registered in Cumberland County and made subject to enforcement by this Court. 17. Admitted. 18. Denied. 19. Denied. The instant matter can and may, upon appeal de novo to the Court of Common Pleas of Adams County, Pennsylvania, involve real property rights. 20. Denied. On the contrary, Plaintiff has expended considerable sums of money on this project, and it would be unfair to allow Defendant, who lacks clean hands, to now avoid its contractual duties and profit from the sale of the property to a third party. 21. Admitted. Respectfully submitted, PURL, EASTMAN & THRASHER Dated: October ~, 2010 Edward G. Puhl Attorney for Plaintiff 220 Baltimore Street Gettysburg, PA 17325 (717) 334-2159 PA Attorney ID No. 55709 edward.puhl@comcast.net 3 VERIFICATION I, Randall L. Reiner, do hereby state that I am the sole member of RL Reiner, LLC, that I am authorized to make this verification, and that the facts set forth in the foregoing Reply to Motion to Strike Lis Pendens aze true and correct to the best of my knowledge, information and belief. I understand that this statement is being made subject to the penalties of I8 Pa.C.S. §4904, relating to unsworn falsification to authorities. V Dated: October , 2010 ~ '-t~~•-~ Randall L. Reiner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION -EQUITY RL REINER, LLC, No. 10-3046 Equity Plaintiff rna INDIAN SPRINGS ASSOCIATES, LLC, ~~ ~ ~ ~ ~~ Defendant ~ ~ ~ ~ ~ ~ ~~ r" -.~.. r --~~ CERTIFICATE OF SERVICE ' ~ ~ ~ ~ ~~ ~ ~~ --a cn _~; .~- .. AND NOW, this ~ day of October, 2010, I, Edward G. Puhl, Esquire, o~`Puhl, j Eastman & Thrasher, attorney for Plaintiff, hereby certify that I have this date served Plaintiff's Reply to Motion to Strike Lis Pendens by sending a true copy first class mail, postage prepaid, to: Bruce J. Warshawsky, Esquire CUNNINGHAM & CHERNICOFF, P.C. ~~t~n u~~h ca..,,,,d Street F57 106-0457 ~, EASTMAN & THRASHER ~ ~/~ rd G. Puhl ley for Plaintiff Baltimore Street sburg, PA 17325 334-2159 ttorney ID No. 55709 •d.puhl@comcast.net • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION -EQUITY RL REINER, LLC, V. Plaintiff INDIAN SPRINGS ASSOCIATES, LLC, Defendant 10-3046 Equity ~ No ":-~ . _'- Y~ ~r'~ i~'y ,_f~~J e,,. - -~ k__., ;.~ ,~. _..._ -~ ti: ~ `` ..~ . .., ~'~ '"- ~7 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 aze served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 717-249-316b i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION -EQUITY RL REINER, LLC, No. 10-3046 Equity Plaintiff v. INDIAN SPRINGS ASSOCIATES, LLC, Defendant COMPLAINT AND NOW, comes Plaintiff, RL Reiner, LLC, by and through its counsel, Puhl, Eastman & Thrasher, and files the following Complaint: 1. Plaintiff, RL Reiner, LLC, is a Maryland limited liability company with a mailing address of P.O. Box 34682, Bethesda, Maryland 20827. 2. Randall L. Reiner, an adult individual, is the sole member and manager of RL Reiner, LLC. 3. Defendant, Indian Springs Associates, LLC, is a Pennsylvania limited liability company with registered offices at 6046 Edwards Drive, Mechanicsburg, Pennsylvania 17055. 4. Robert Erwin and Donald Erwin are adult individuals and constitute all of the members of Indian Springs Associates, LLC. 5. On March 9, 2010, Plaintiff, as buyer, and Defendant, as seller, entered into a Real Estate Agreement of Sale for the conveyance of the mobile home park in Southampton Township, Cumberland County, Pennsylvania, known as Indian Springs Mobile Home Park. A copy of the Real Estate Agreement of Sale dated March 9, 2010, is attached hereto as 1 Plaintiff s Exhibit "A" and incorporated herein by reference. 6. Pursuant to the Real Estate Agreement of Sale, settlement on the real estate was to occur within seven (7) days after the study period ended. 7. The study period ended on April 19, 2010, at which time Plaintiff informed Defendant he was ready, willing and able to make settlement on the property. 8. However, at that time in mid-Apri12010, Robert Erwin told Randall Reiner that he needed more time in which to sell two other properties he owned so that he could raise the additional funds needed to pay off PNC Bank, which holds a mortgage on Indian Springs Mobile Home Park. 9. Robert Erwin told Randall Reiner that he needed to sell an office building at 242 West Chocolate Street, Hershey, Pennsylvania, and a townhouse at 675 Stoversdale Road, Hummelstown, Pennsylvania, before he could make settlement on the Indian Springs Mobile Home Park. 10. Robert Erwin asked for an extension and Plaintiff agreed, instructing his counsel to prepare an addendum to the Agreement of Sale extending the settlement date to May 30, 2010. 11. On May 5, 2010, Robert Erwin informed Randall Reiner by email that settlement on the office building at 242 West Chocolate Street, Hershey, Pennsylvania, was scheduled for May 10, 2010, and settlement on the townhouse at 675 Stoversdale Road, Hummelstown, Pennsylvania, was tentatively scheduled for May 17, 2010. 2 12. By May 10, 2010, when Plaintiff was unable to get confirmation from either Robert Erwin or his counsel that the extension addendum had been signed, Plaintiff filed the within writ of summons in Cumberland County and entered a lis pendens against the mobile home property, located in that county. 13. On May 13, 2010, Plaintiff s counsel informed Defendant's counsel of the filing of the writ of summons and entry of the lis pendens. 14. On or about May 27, 2010, Defendant executed the Addendum to Real Estate Agreement of Sale, extending the settlement date to June 18, 2010. A copy of the Addendum to Real Estate Agreement of Sale is attached hereto as Plaintiffs Exhibit "B" and incorporated herein by reference. 15. In early June, Robert Erwin informed Randall Reiner that he could not settle on the office building in Hershey or the townhouse in Hummelstown before June 18, 2010. 16. Accordingly, on June 10, 2010, Plaintiff s counsel prepared and emailed to Defendant's counsel a Second Addendum to Real Estate Agreement of Sale, extending settlement to July 30, 2010. 17. On June 11, 2010, Defendant's counsel acknowledged that the Second Addendum to Real Estate Agreement of Sale "looked ok," and that he would forward it to his clients for signatures. 18. By email sent July 2, 1010, Plaintiff's counsel asked if the Second Addendum had been signed, but counsel received no reply. 19. During a phone conversation on July 22, 2010, Robert Erwin informed Randall Reiner that he and his brother had met with their attorney, that the payoff amount on their loan with PNC Bank was approximately $765,000.00, and that they (Erwins) also needed to sell three building lots before they could settle with Randall Reiner on the Indian Springs Mobile Home Park. 20. At that time, Robert Erwin also told Randall Reiner that PNC Bank was willing to give Erwins until October 31, 2010 to find buyer(s) for the three building lots. 21. On August 10, 2010, Robert Erwin informed Randall Reiner that he felt he and his brother were close to selling the three building lots, and that he hoped PNC Bank would pay the delinquent taxes on the Indian Springs Mobile Home Park property to keep it from going to tax sale in September. 22. On September 3, 2010, Defendant, through counsel, asked Plaintiff to release the lis pendens filed against the Indian Springs Mobile Home Park property. 23. In an email sent September 8, 2010, Defendant's counsel said the reason for asking Plaintiff to release the lis pendens was because "PNC is contemplating whether to pay the overdue real estate taxes prior to the impending tax sale scheduled for September 15, 2010, and the lis pendens is now an issue at this juncture." 24. In response, Plaintiff's counsel stated that Plaintiff could not see "what impact the lis pendens has on whether PNC advances the taxes on Erwin's behalf," and refused to remove the lis pendens. 4 25. On September 14, 2010, Defendant's counsel emailed Plaintiff's counsel and again requested that the lis pendens be removed, stating that "the best course of action for my client would be to locate a Buyer who is willing to pay an amount that will allow PNC to be satisfied without the contingency that the other lots must be sold." 26. The recital in the Addendum to Real Estate Agreement of Sale executed by Defendant on May 27, 2010, recites that "Seller is unable to deliver free and clear title to Buyer until Seller receives the net proceeds from the sale of the other parcels of real estate also owned by Seller, so that the first secured creditor, PNC Bank, may be satisfied and their lien(s) of record removed." 27. Paragraph 3 in the Addendum to Real Estate Agreement of Sale executed by Defendant on May 27, 2010, states that "[i]n the event Seller is unable to deliver free and clear title by the Settlement Date, Buyer shall grant further extension(s) in order to give Seller time to remedy the problem, ..." 28. Plaintiff has informed Defendant that Plaintiff is willing to grant further extensions in order to give Seller time to sell the three building lots, the proceeds from the sale of which will enable Defendant to deliver free and clear title to Indian Springs Mobile Home Pazk. 29. Under the Addendum to Real Estate Agreement of Sale, Plaintiff is not required to strike the lis pendens unless and until Plaintiff is no longer willing to grant another extension. 5 30. Under the Addendum to Real Estate Agreement of Sale, Defendant may not refuse to extend the contract so long as Plaintiff is willing to grant extension(s). 31. Plaintiff believes and, therefore, avers that by refusing to execute addenda that extended the settlement date first to July 30, 2010, and then to October 31, 2010, Defendant breached its contract with Plaintiff. 32. Plaintiff believes and, therefore, avers that by refusing to sell other properties, the proceeds from the sales of which would enable Defendant to deliver clear title to Indian Springs Mobile Home Park, Defendant breached its contract with Plaintiff. 33. Plaintiff believes and, therefore, avers that Defendant is able, but no longer willing, to meet the contingencies in the Addendum to the Real Estate Agreement of Sale, and has therefore breached the implied covenant of good faith and fair dealing that is part of every contract. 34. On September 24, 2010, Plaintiff assigned the Real Estate Agreement of Sale to a Pennsylvania limited liability company controlled by Randall L. Reiner and formed for that purpose, Hampton Meadows MHC, LLC, the real party in interest. 35. On September 27, 2010, Plaintiffs counsel notified DefendanPs counsel of the assignment. 36. T'he Real Estate Agreement of Sale contains a provision requiring the parties to submit their dispute to nonbinding arbitration in Adams County, Pennsylvania, after which either may appeal the decision of the panel of arbitrators to the Court of Common Pleas of 6 either may appeal the decision of the panel of arbitrators to the Court of Common Pleas of Adams County, Pennsylvania, in a trial de novo. 37. Plaintiff has expended significant sums in consulting with experts and in studying the economic feasibility of this purchase, proof of which will be provided at hearing. WHEREFORE, Plaintiff respectfully requests this Honorable Court to: a) stay any action in this matter until after the Defendant has filed responsive pleadings and the parties have submitted their dispute to a panel of arbitrators in Adams County, Pennsylvania; and b) refer this matter to the Court of Common Pleas of Adams County, Pennsylvania, should either or both parties appeal from the decision of the panel of arbitrators. Respectfully submitted, PURL, EASTMAN & THRASHER Dated: October ~3bf, 2010 i~~~~-t Edward G. Puhl Attorney for Plaintiff 220 Baltimore Street Gettysburg, PA 17325 (717) 334-2159 PA Attorney ID No. 55709 edward.puhl @ comcast.net 7 VERIFICATION I, Randall L. Reiner, do hereby state that I am the sole member of RL Reiner, LLC, that. I am authorized to make this verification, and that the facts set forth in the foregoing Complaint ace true and correct to the best of my knowledge, information and belief. I understand that this statement is being made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Dated: October O , 2010 ~~~•-~ Randall L. Reiner V r REAL ESTATE AGREEMENT OF SALE 'fIIIS AGREEMENT, made this day of ~u' 2010, by and between INDIAN SPRINGS ASSOCIATES, LLC, a Pennsylvania limited liability company with registered offices at 6046 Edwards Drive, Mechanicsburg, Pennsylvania 17050, ("Seller"), and RL REINER, LLC, and/or its assigns, a Maryland limited liability company with a mailing address of P.O. Box 34682, Bethesda, Maryland 20827-0682 ("Buyer"). WITNESSETH: 1. Property. The Seller, in consideration of the covenants and agreements hereinafter contained, on the part of the Buyer to be kept and performed, does hereby agree to sell and convey to the Buyer ALL that certain real property and al) improvements thereon situate, lying and being in the Southampton Township, Cumberland County, Pennsylvania, as more particularly described on Cxhibit "A" attached hereto and by reference made a part hereof, commonly known as Indian Springs Mobile 1-lome Park in Shippensburg, Pennsylvania, containing approximately 39.8 acres, referred to as the "Property." 2. Purchase Prtee. The purchase price is Six Hundred Fifty Thousand ($650,000.00) Dollars, payable as follows: upon ratification of this agreement, Buyer will execute a Judgment Note in favor of the Seller in the amount of fifty Thousand ($50,000.00) Dollars, to be held in escrow by Puhl, Eastman & Thrasher, Buyer's counsel, during the study period referred to below; upon the expiration of the study period referred to below, or any extensions thereof, Buyer will redeem the Judgment Note by depositing a sum equal to the amount of the note in cash, to be held in escrow by Puhl, Eastman & Thrasher in an interest bearing account pending final settlement. 3. Tests and Study Period Buyer sha{I have an initial period of fourteen (14) days from the date of execution of this agreement in which to conduct, at Buyer's expense, tests and studies of the Property and the improvements thereon, and to otherwise study the economic feasibility of developing the Property. During this f 4-day period, Buyer may, in its sole discretion, cancel this agreement by written notice sent to the Seller and Buyer's escrow agent, whereupon Buyer's escrow agent shall promptly return the $50,000.00 Judgment Note R~~.,,,~o,o Page I of 7 .„ to Buyer. If Buyer requires additional time in which to perform tests and conduct studies, 13uycr may extend the study period for a second i4-day period by increasing the amount. of the Judgment Note to $60,000.00. If Buyer requires a third and final 14-day extension, Buyer may extend the study period by increasing the amount of the Judgment Note to $70,000.00. If Buyer elects not to cancel this agreement during the initial 14-day study period or any extensions thereof, at the expiration of the study period, Buyer shall promptly redeem the Judgment Note by replacing it with cash, which will be held in escrow by Buyer's counsel in an interest-bearing account and applied to the purchase price at final settlement. Buyer. shall have reasonable access to the Property in order to conduct such necessary tests and studies, and the Seller shall cooperate with the Buyer in conducting such necessary tests and studies and shall address questions raised by the Buyer. Buyer shall indemnify and hold harmless Seller against any liability, foss, expense or damages Seller may suffer by reason of injury to persons or damage to the Property arising from conducting of such tests and studies. All study work will be done confidentially, to the extent possible. Buyer shall not disclose any study information to the public unless agreed upon by Seller. 4. Plans, Surveys, Reports Upon ratification of this agreement, Seller shall dclivcr to Buyer copies of all test borings, surveys, architectural and engineering data, title policies, appraisal reports, tenant leases, rules and regulations, rent .roll, environmental studies and reports, and any other information concerning the Property and the professionals employed by Sellers that may be reasonably requested by Buyer. 5. Time and Place of Final SeKlement. Final settlement shall be held within seven (7) days following the expiration of the study period and any extension(s) thereof. Settlement will be held at the office of Buyer's counsel, Puhl, Eastman & `thrasher, at 220 Baltimore Street, Gettysburg, Pennsylvania. 6. Deed Upon payment of the entire sale price the Seller will make, execute, acknowledge and dclivcr to the Buyer a special warranty deed conveying the Property in fee simple, with good and marketable title, insurable at regular rates by a reputable title insurance company, free from all liens and encumbrances, but subject to any existing casements, rights of way, restrictions and/or covenants which may affect the same. Rev. vi~ao~o Page 2 of 7 `. J 7. Possession. Possession of the Property shall be delivered to Buyer on the date of final settlement, subject only to existing tenancies. 8. Review by Counsel. For a period of seven (7) days following the execution of this Agreement it shall be subject to the review and approval of counsel far each party. 9. Realty Transfer Taxes The Seller and the Buyer shall each pay one-half of the realty transfer taxes required at the time of the recording of the deed. 10. Rea! Estate Taxes. The real estate taxes assessed against the Property shall be prorated on a fiscal year basis between the Seller and the Buyer as of the date of final settlement. ll. Leases, Rents, Security Deposits. Seller shall assign all leases and security deposits to Buyer, and all rents shalt be prorated between Seller and Buyer as of the date of final settlement. 12. Mobite Ro-nes. Seller shalt provide title certificates for all mobile homes owned by the Seller and conveying with the Property, [n addition, Seller shall provide information about the ownership and occupancy of, and security interests attached to, any mobile homes which do not convey with the Property but which will remain on the premises after final settlement. 13. itll Creditors Paid. Seller wilt supply to Buyer a fist of all of Seller's creditors as of the date hereof and the amounts owed to each. Seller and its members warrant that all liabilities or obligations of Seller whatsoever, either accrued prior to closing, contingent or otherwise. will be paid and satisfied in full on or before Closing. 7'o assure and simplify the procedure for the payment of any trade accounts payable that may be uncertain as of closing, Edward G. Puhl, Esq., and Puhl, Eastman & Thrasher shall retain from the consideration paid hereunder the sum of Ten `thousand ($10,000.00) Dollars as escrow agent for a period o[' forty-five (45) days after closing. Said sum shall be used to pay any such payablcs (by disbursement of the necessary amount to [iuyer to cover checks issued to the appropriate vendor for a like amount) and any balance remaining at the end of the thirty-day period shall be disbursed to Seller upon written approval of Buyer. This procedure is intended to be a supplement to and not a limitation of the obligation of Seller to be responsible for obligations or liabilities of Indian Springs Associates, LLC accruing prior to the closing. s.~. ?n ~iaoio Page 3 of 7 14. Authorization to Release Information. By accepting this offer and signing below, {ndian Springs Associates, LLC, hereby authorizes PNC Bank, N.A., as successor in interest to Pennsylvania State 'Bank, to release information to Buyer's counsel, Puhl, Eastman & Thrasher, of 220 Baltimore Street, Gettysburg, PA 17325, related to the mortgage given by Indian Springs Associates, LLC to Pennsylvania State Bank, dated December 28, 2000, in the original amount of $1,130,000, Loan No. . 15. Defects in Title. Should the Seller be unable to carry out this agreement by reason of a valid or legal defect in title which the Buyer is unwilling to waive, all sums paid hereunder by the Buyer to the Seller shalt be returned to the Buyer, who shall thereupon surrender possession of the real estate to the Seiler (if the Buyer has received possession thereof), without reimbursement; provided however, that if any such valid or legal defect in title arises, the Seller shall have a reasonable time in which to endeavor to correct the same at the Seller's expense. 16. Owner's Affidavit.. At final settlement, Seller shall execute an Owner's Affidavit substantially in the form attached hereto as Exhibit "B," representing and warranting, among other things, that Seller has not dumped or caused to be dumped any hazardous or toxic waste on the Property and Seller is not aware of the existence of any hazardous or toxic waste thereon. 17. Insurance. From the date of this agreement until the date of the delivery of the deed, the Seller agrees to continue in effect the fire and/or casualty insurance now carried by the Seller on the building or buildings on the premises covered by this agreement. In consideration thereof, this agreement will not be canceled or affected by reason of damage or destruction due to fire or other casualty. The net proceeds of any insurance collected by the Seller prior to the date of final settlement will be paid or credited to Buyer at settlement, and all unpaid claims and rights in connection with losses under any policies will be assigned to Buyer at settlement. The amount of such unpaid claims will not, however, be credited on account of the sale price. The Buyer may, at Buyer's option, insure Buyer's interest in said premises. 18. Buyer's Default Should Buyer default on this agreement, all sums deposited in escrow shall be forfeited and retained by the Seller as liquidated damages, and the parties Rz~ ~,,,~,o Page 4 of ? '. J shall have no further liability with respect to each other and to the Property. 19. Time of the Essences Time is of the essence of this agreement and all of its terms and conditions. The Buyer agrees with the Seller to purchase said tract of land and to pay the aforesaid sale price in the manner and at the times specified in this agreement. 20. Notices. All notices, demands, or communications permitted or required to be given hereunder shall be in writing and sent via USPS certified mail, postage prepaid, return receipt requested or delivered by recognized overnight commercial carrier, shipping prepaid. Such notices, if properly delivered as aforesaid, shall be deemed given on the date of actual receipt. Notices shall be addressed to the parties at the addresses shown below or to such other ~' address as any party shall direct in accordance with the provisions hereof: If to Indian Springs Associates, LLC: Indian Springs Associates, LLC 6046 Ldwards Drive Mechanicsburg, PA 17050 With copy to: Indian Springs Associates, I.,I,C c% R&D Development 242 West Chocolate Ave. Hershey, PA 17033 With courtesy email copies to If to RL Reiner, LLC: With copy to: With courtesy email copies to: ~c~ b6~L3~ ' 1 .C1~~i!~~LG~TI~ ~~ ~e-CrQ ~~ ~~~.c4m RL Reiner, LI.C P.O. Box 34682 Bethesda, MD 20827-0682 Cdward G. Puhl, Csquirc 220 Baltimore Street Gettysburg, PA 17325 edward.pu h I@comcast.net RpscS@aol.com 21. Entire Agreement. This agreement constitutes the entire agreement bctwecn the parties and it supersedes all prior discussions, understandings or agreements bctwecn the parties. 22. Brokerage. Neither the Seller nor the Buyer is represented by a real estate bmkcr Kew. z,rnzmo Page 5 of 7 in this transaction. 23. Assignment Buyer may transfer or assign this Agreement to any entity in which Randall L. Reiner has a controlling interest without the written consent of Setter. 24. Binding Effect.. The undersigned covenant and agree that this agreement shall be legally binding upon and inure to the benefit of the parties hereto and their respective personal representatives, heirs, successors and assigns. 25. Offer Shall Lapse. If not accepted by Seller in a writing delivered to Buyer within seven (7) days from the date the purchase offer was made by Buyer (which date appears beneath >#uyer's signature below), this offer shall lapse 26. Arbitration. The Seller and Buyer agree that disputes relating to this Agreement shall be submitted to nonbinding arbitration in Adams County, Pennsylvania. F.,ach party shall select an arbitrator and the two arbitrators so selected shall select a third arbitrator between them, the controversy being heard by the panel of three arbitrators thus selected. 'I'hc parties shall bear the cost of the arbitration equally between them. An appeal of the decision of the panel of arbitrators shall be filed in the Court of Common Pleas of Adams County, Penns Ivania. ~IN WITNESS WIiEREOF, the undersigned parties, intending to be legally bound hereby, have hereunto set their hands and seats the day and year first above written, this agreement being executed in two (2) counterparts, each of which is hereby declared to be an original. Attest:. lJ~~N~~ Dated: „~'_~JC~' --~ Dated:1~'~`~ ~~~ ~~. Rtv. 2/17!2010 Page 6 of 7 /~ ~ml e4!/h d.F ~~~ch s 4 ~ ~ art ~ 1 ~i?w/i J .1` SELLER: INDIAN SPRINGS ASSOCIATES, LLC: Member Member Attest: BUYER: RL REINER, LLC o, _ ray _ ;: rsc,~c~ Randall L. Reiner, Manager Dated: Z~d~ / ~ _ R~,.~~,,~o~o Page 7 of 7 OWNER'S AFFIDAVIT STATE OF PENNSYLVANIA, COUNTY Oh' On this, the _~ day of 2010, before mc, the undersigned officer, a Notary Public in and for said state and county, personally appeared , who having been by me duly sworn according to law, depose and say: l . That they are the owners of the premises situate in County, known as .Pennsylvania, and arc the same as named as grantees in the deed recorded in the office of the Recorder of Deeds of County, Pennsylvania, in Record Book at page ; 2. 'that no alterations, additions or repairs have been made to said premises, nor are there any appliances or fixtures attached to said premises which have not been paid for in full; and that there are no outstanding or disputed claims for any such work or item; 3. '['hat there are no liens or encumbrances (mortgages, deeds of trust, judgments, tax liens, mechanics' liens, etc.) known to the undersigned, which are not being properly provided for in this transaction; 4. "That there has been no work done, or notice received that work is to be done, by the municipality (city, borough or township) or at its direction, in connection with the installation of sewer or water or for improvements such as paving or repaving of strcels or alleys, or the installation of curbs or sidewalks; 5. That no notice has been served by any governmental authority for the removal or abatement of any nuisance, for the violation of any zoning regulation or concerning the condemnation of any portion of said premises; 6. "That there has been no violation of any restrictions affecting the premises; 7. 'T'hat there arc no disputes with any adjoining property owners as to the location of property lines and no improvements encroach onto adjoining property; S. "l'hat there are no purchase money obligations being created in this transfer; 9. 'That there are no unrecorded leases or agreements affecting the premises in question; 0. 'That the present transaction is not made for the purpose of hindering, delaying or defrauding any creditors of said owners and does not come within the provisions of the Bankruptcy or Insolvency Acts (or any amendments thereof); (Rev. 2/ 10) Exhibit "B" 11. 'That all real estate taxes assessed against said premises have been paid in full to and including the 2010 county and township taxes and the 2009/10 school taxes; l2. 'That no notices of any interim tax assessments nor bills for same have been received; 13'. 'that said affiants are not aware of any radon gas affecting the premises; 14. 'that said affiants have not dumped or caused to be dumped any hazardous or toxic waste on the property and afliants are not aware of the existence of any hazardous or toxic waste thereon; 15. 't'hat there are no federal or state taxes due and owing that could become liens against said premises; 16. That no portion of this property is a "Wetland," as defined in 33 C.F.R. §328.3(b) or in 25 Pa. Code §105.1. 'T'hat with respect to this property or any portion thereof, the said owners have not violated, have not caused to be violated and have no notice or knowledge of any violations of "'The Clean Water Act of 1977," as amended (33 U.S.C. §1251 ct seq.), the Pennsylvania "Dam Safety and Encroachments Act," as amended (32 P. S. §693.1 et seq.) and the Pennsylvania "Clean Streams l.aw," as amended (35 P. S. §691.1 et seq.). "That the said owners have not received any notice or notices from the United States Environmental Protection Agency, the United States Army Corps of Engineers, the Pennsylvania Department of lnvironmcntal Resources or any other State or Federal agency which state that any further development or improvement would be restricted or prohibited with respect to this property; 17. "That no overdue support obligations exist in this or any other state against either afliant; 18. 't'hat no support orders are entered against either affiant; 19. "That any power of attorney used in connection with the within conveyance has not been revoked or terminated by death of the principal; and 20. That this affidavit is made for information and veriFcation purposes and affiants aver that the foregoing statements are true and correct to the best of their knowledge, information and belief. Sworn to and subscribed before me the day and year aforesaid. Notary Public My commission expires: (Rev. 2i 10) Exhibit "B" ADDENDUM TO REAL ESTATE AGREEMENT OF SALE ~J/h This Addendum, made the °~ / day of May, 2010, by and between INDIAN SPRINGS ASSOCIATES, LLC, a Pennsylvania Limited Liability Company with registered offices at 6046 Edwards Drive, Mechanicsburg, PA 17050 ("Seller', and RL REINER, LLC, and/or its assigns, a Maryland limited liability company with a mailing address of P.O. Box 34682, Bethesda, MD 20827 ("Buyer"). WHEREAS, Seller and Buyer are parties to a Real Estate Agreement of Sale executed by Seller on March 9, 2010 (the "Agreement"), providing for Buyer's purchase from Seller of four parcels of land in Southampton Township, Cumberland County, Pennsylvaaia containing approximately 39.8 acres and known as Indian Springs Mobile Home Park (the "Property"); and WHEREAS, the Agreement provides for Buyer to have a study period to conduct tests and studies of the Properties and to determine the feasibility of developing the Property; and • WHEREAS, Buyer and Seller agreed that final settlement on the property would take place within seven (7) days following expiration of the study period on April 19, 2010; and WHEREAS, the Agrcement requires Seller to deliver free and clear title to the Property at settlement; and WHEREAS, Seller is unable to deliver free and clear title to Buyer until Seller receives the net proceeds from the sale of the other parcels of real estate also owned by Seller, so that the first secured creditor, PNC Bank, may be satisfied and their lien(s) of record removed. NOW, THEREFORE, the parties, intending to be legally bound, hereby agree as follows: 1. Recitals. The foregoing recitals are incorporated herein by reference. 2. Settlement Date. Seller and Buyer agree to extend the date of settlement to on or before June 18, 2010 (the "Settlement Date"). 3. Free and Clear Title. In the event Seller is unable to deliver free and clear title by the Settlement Date, Buyer shall grant further extension(s) in order to give Seller time to remedy the problem, or Buyer shall cause the Lis Pendens, filed to No. 10-4036 in the Court of Common Pleas of Cumberland County, Pennsylvania., to be stricken at Buyer's expense. ~~P .. ,r~05-27 16:08 Atsrst: 8E,LG£Rs tNntAN SPR1Nt'~S ASSOCIATES. LLC': •, ay . Zvta~ba ~~«~: S ~ .~,._._,.~....,., solo ~ .. N • • •••~...~ Aricst: i^~ BXJYEIt; RI, R~ttSER, F,LC ..~ r„ >~~. ~~ va~~a: ~ ~.,~.. soya erwin inaurenca 1717533bb86 » 717 238 k8Q9 P 2/2 4. 1Vo Further Charges. The A~r~ccmeat'. as hcceby amMdod, shall caatinue in Mill taro and effioct. S. This.i$rermenl Wray bc~ rxecut~ad Ir.courte~part~: EXECUTED as of the day and year #Ycst abovC wrlctmn. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION -EQUITY RL REINER, LLC, No. 10-3046 Equity Plaintiff v. i; ', INDIAN SPRINGS ASSOCIATES, LLC, Defendant CERTIFICATE OF SERVICE ~! AND NOW, this ~ day of October, 2010, I, Edward G. Puhl, Esquire, of Puhl, !! Eastman & Thrasher, attorney far Plaintiff, hereby certify that I have this date served Plaintiff's Complaint and Notice to Defend by sending a true copy first class mail, postage ','', prepaid, to: ~ ~, ~ ' ~-- ~ . ~' I ~~ ~ ~ ~ ~~ ~ ~ ~ c.~ .~ ~~ a- 1 ~,~ `~ ~ e,r, Q>-- cn `~' ~ ~ r- ' ~= = ~r ~-~ , o ~, ~~..a ~-sa~. ca Bruce J. Warshawsky, Esquire CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 PUHL, EASTMAN & THRASHER j ~ / By ~.- Edward G. Puhl Attorney for Plaintiff 220 Baltimore Street Gettysburg, PA 17325 (717) 334-2159 PA Attorney ID No. 55709 edward.puhl@comcast.net f"I~~i~-C~i FfC Bruce J. W shawsky, Esquire PA Supr Court ID #58799 Nicholas A Fanelli, Esquire PA Supreme Court ID# 308136 CUNNIN AM & CHERNICOFF, P.C. 2320 Nort Second Street Harrisburg PA 17110 Mailing A~dress: P.O. Box ~ 457 Harrisbur~~~~ PA 17106-0457 2v 1 ~ CST 20 P~~ t ~ ~' ~' C~~'~~~~~~i ~~~d ~ Y (717) 23 RL REIN ,LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA ~, CASE NO: 10-3046 INDIAN S,~RINGS ASSOCIATES, LLC, CIVIL ACTION -EQUITY Defendant NOTICE TO PLEAD TO: R.L. Reiner, LLC c/o'~~Edward G. Puhl, Esquire 22~ Baltimore Street Gettysburg, PA 17325 YOU AR~,I HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED PRELIMINARY OBJECTIQ~NS WITHIN TWENTY (20) DAYS FROM THE DATE OF SERVICE HEREOF. GHAM & CHERNICOFF By Date: Oct er 20, 2010 Brrfce J. W"arshawsk~Esquire PA Supreme Court ID# 58799 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second. Street Harrisburg, PA 17110 Telephone: (717) 238-6570 RL REINF~R, LLC, Plaintiff v. INDIAN ~IYRINGS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO: 10-3046 CIVIL ACTION -EQUITY DEFENDANT'S PRELIMINARY OBJECTIONS PURSUANT TO P.A. R.C.P.1028(al(11 and P.A. R.C.P.1028(al(61 A1~D NOW, comes Defendant, Indian Springs Associates, LLC, by and through its counsel, Bruce J. Warshawsky, Esq., and Cunningham & Chernicoff, P.C., and files its Preliminary Objections Pursuant to Pa.R.C.P. 1028(a)(1) and Pa.R.C.P. 1028(a)(6) as follows: 1. This is an action by Plaintiff, as the proposed buyer of certain real estate located at and knowtl as the Indian Springs Mobile Home Park in Southampton Township, Cumberland County, Pennsylvania (the "Real Estate"), against Defendant involving a dispute relating to and arising fratn a Real Estate Agreement of Sale (the "Agreement") executed by the parties on March 9, X010. A true and correct copy of the Agreement is attached hereto and incorporated herein by ~teference as Exhibit "A." 2. Paragraph 26 of the Agreement provides that all disputes arising out of the Agreement shall be submitted to non-binding arbitration in Adams County, Pennsylvania, and that any a~}peal therefrom must be filed in the Court of Common Pleas of Adams County (the "Arbitration and Forum Selection Provision"). Specifically, Paragraph 26 states as follows: The Seller and Buyer agree that disputes relating to this Agreement shall be submitted to non-binding arbitration in Adams County, Pennsylvania. Each party shall select an arbitrator and the two arbitrators so selected shall select a third 2 arbitrator between them, the controversy being heard by the panel of three arbitrators thus selected. The parties shall bear the cost of the arbitration equally between them. An appeal of this decision of the panel of arbitrators shall be filed in the Court of Common Pleas of Adams County, Pennsylvania. 3. I~'laintiff admits the existence and effect of the Arbitration and Forum Selection Clause in Paragra~h 36 of its Complaint. 4. '' Counsel for Plaintiff drafted the Agreement in its entirety'. 5. I, At the time the Agreement was executed, Plaintiff and Defendant agreed to the Arbitratio ~ and Forum Selection Provision. 6. ' Plaintiff did not submit the instant dispute (as identified in the Complaint) relating to the Agreerk~ent to non-binding arbitration, and instead filed this lawsuit on May 10, 2010, the Arbitration and Forum Selection ClauseZ. 7. IThe Arbitration and Forum Selection Provision also requires the parties to submit an appeal of ~y arbitration award to the Court of Common Pleas of Adams County and, thus venue in Cumbe~and County is improper, under Pa.R.C.P. 1028(a)(1). Defendant, Indian Springs Associates, LLC, hereby respectfully requests that this H~norable Court dismiss this action with prejudice, direct the parties to proceed with arbitration's I~~nd to file any appeal therefrom in Adams County, Pennsylvania. i `Pl 'tiffs counsel also drafted an Addendum to the Agreement which the parties executed on or about May 27, 2010 (see paragrap 14 and Exhibit "B" to the Complaint). ZBy ay of procedural background, Plaintiff initiated the present action by filing a Writ of Summons, and on the same day filed a Px~ cipe for Lis Pendens requesting the Prothonot to index as a Lis Pendens a ainst the Real Estate. On az'Y g September 24 010 a Rule to File Complaint was issued by the Prothonotary upon Praecipe of Defendant. Meanwhile, Defendant fil a Motion to Strike Lis Pendens on September 30, 2010 and on October 4, 2010, the Honorable J. Wesley Oler, Jr. issued an der requiring the Plaintiff to show cause why Defendant's Motion should not be granted. Then, on October 14, 2010, Plainti filed an Answer to the Motion to Strike Lis Pendens and filed its Complaint against which the present Preliminary Objections ar lodged. Respectfully submitted, & CHERNICOFF, P.C. Date: Octa~er 20, 2010 By: $fuce J.`'Warsl~awsky squire PA Supreme Court No.: 58799 Nicholas A. Fanelli, Esquire PA Supreme Court ID No.: 308136 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: (717) 238-6570 VERIFICATION I, Donald Erwin, on behalf of Indian Springs Associates, LLC, verify that the statements made in th foregoing PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT PURSUA T TO P.A. R.C.P. 1028 a 1 and P.A. R.C.P. 1028 a 6 are true and correct. I understandl'~that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to j~uisworn falsification to authorities. DATE: ~' , 2010 . ..z- , CERTIFICATE OF SERVICE I, P.C., Ametrano, Legal Assistant with the law firm Cunningham & Chennicoff, certify that a true and correct copy of the DEFENDANT'S PRELIMINARY was served by f U.S. Mail, postage prepaid, to: Edward G. Puhl, Esquire 220 Baltimore Street Gettysburg, PA 17325 Date: Octd~er 20, 2010 CUNNINGHAM & CHERNICOFF, P.C. ~~~~a~e Ju eanne Ametrano 2 20 North Second Street arrisbur~, PA 17110 DEVELOPMEN11Indian Springs~RL REINERUvtotion to Compel Arbitralion.wpd EXHIBIT `A' REAL ESTATE AGREEMENT OF SALE TIIIS AGREEMENT, made this ~ day of , 2010, by and III etween INDIAN SPRINGS ASSOCIATES LLC a Penns Ivania limited liabilit com > y y pany Iii, ith registered offices at 6046 Edwards Drive, Mechanicsburg, Pennsylvania 17050, "Seller"), and RL REINER, LLC, and/or its assigns, a Maryland limited liability company ith a mailing address of P.O. Box 34682, Bethesda, Maryland 20827-0682 ("Buyer"). WITNESSETIi: 1. Property. The Seller, in consideration of the covenants and agreements hereinafter j ontained, on the part of the Buyer to be kept and performed, does hereby agree to sell and onvey to the Buyer ALL that certain real property and all improvements thereon situate, I, ying and being in the Southampton 'township, Cumberland County, Pennsylvania, as more particularly described on Exhibit "A" attached hereto and by reference made a part hereof, ~ommonly known as Indian Springs Mobile 1-[ome Park in Shippensburg, Pennsylvania, containing approximately 39.8 acres, referred to as the "Property." ~ 2. Purchase Price. The purchase price is Six Hundred Fifty Thousand ($650,000.00) ollars, payable as follows: upon ratification of this agreement, Buyer will execute a udgment Note in favor of the Seller in the amount of I~ fifty Thousand ($50,000.00) Dollars, be held in escrow by Puhl, Eastman & Thrasher, Buyer's counsel, during the study period fcrred to below; upon the expiration of the study period referred to below, or any extensions t ereof, Buyer will redeem the Judgment Note by depositing a sum equal to the amount of the ote in cash, to be held in escrow by Puhl, Eastman & Thrasher in an interest bearing account ending final settlement. 3. Tests and Study Period. Buyer shall have an initial period of fourteen (14) days om the date of execution of this agreement in which to conduct, at Buyer's expense, tests d studies of the Property and the improvements thereon, and to otherwise study the onomic feasibility of developing the Property. During this 14-day period, Buyer may, in its le discretion, cancel this agreement by written notice scat to the Seller and Buyer's escrow cnt, whereupon Buyer's escrow agent shall promptly return the $50,000.00 Judgment Note =~~~~~,~~~o Page 1 of 7 to Buyer. If Buyer requires additional time in which to perform tests and conduct studies, Buyer may extend the study period for a second 14-day period by increasing the amount of the Judgment Note to $60,000.00. If Buyer requires a third and final 14-day extension, Buyer may extend the study period by increasing the amount of the Judgment Note to $70,000.00. If Buyer elects not to cancel this agreement during the initial 14-day study period or any extensions thereof, at the expiration of the study period, Buyer shal I promptly redeem the Judgment Note by replacing it with cash, which will be held in escrow by Buyer's counsel in an interest-bearing account and applied to the purchase price at final settlement. Buyer shall have reasonable access to the Property in order to conduct such tests and studies, and the Seller shall cooperate with the Buyer in conducting such tests and studies and shall address questions raised by the Buyer. Buyer shall ~ ndemnify and hold harmless Seller against any liability, loss, expense or damages Seller ay suffer by reason of injury to persons or damage to the Property arising from conducting f such tests and studies. All study work will be done confidentially, to the extent possible. 3uyer shall not disclose any study information to the public unless agreed upon by Seller. ~ 4. Plans, Surveys, Reports Upon ratification of this agreement, Seller shall deliver to uyer copies of all test borings, surveys, architectural and engineering data, title policies, ppraisal reports, tenant leases, rules and regulations, rent roll, environmental studies and ~, ports, and any other information concerning the Property and the professionals employed by ellers that may be reasonably requested by Buyer. ~I 5. Time and Place of Final Settlement. Final settlement shall be held within seven I days following the expiration of the study period and any extension(s) thereof Settlement II be held at the office of Buyer's counsel, Puhl, Eastman & '['hrasher, at 220 Baltimore Gettysburg, Pennsylvania. 6. Deed. Upon payment of the entire sale price the Seller will make, execute, knowledge and deliver to the Buyer a special warranty deed conveying the Property in fee simple, with good and marketable title, insurable at regular rates by a reputable title insurance cl mpany, free from all liens and encumbrances, but subject to any existing casements, rights o way, restrictions and/or covenants which may affect the same. ,I vvi~izniv Page 2 of ? 7. Possession. Possession of the Property shall be delivered to buyer on the date of nal settlement, subject only to existing tenancies. 8. Review by Counsel. For a period of seven (7) days following the execution of this greement it shall be subject to the review and approval of counsel for each party. 9. Realty Transfer Taxes. The Seller and the Buyer shall each pay one-half of the r alty transfer taxes required at the time of the recording of the deed. l0. Real Estate Taxes. The real estate taxes assessed against the Property shall be ~rorated on a fiscal year basis between the Seller and the Buyer as of the date of final 11. Leases, Rents, Security Deposits. Seller shall assign all leases and security its to Buyer, and all rents shall be prorated between Seller and Buyer as of the date oi' nal settlement. 12. Mobile Ilomes. Seller shall provide title certificates for all mobile homes owned the Seller and conveying with the Property, In addition, Seller shall provide information gut the ownership and occupancy of, and security interests attached to, any mobile homes ich do not convey with the Property but which will remain on the premises after final lement. l3. ~tll Creditors Paid. Seller will supply to Buyer a list of all of Scllcr's creditors as f the date hereof and the amounts owed to each. Seller and its members warrant that all ~ abilities or obligations of Seller whatsoever, either accrued prior to closing, contingent or therwise. will be paid and satisfied in full on or before Closing. 1'o assure and simplify the roccdure for the payment of any trade accounts payable that may be uncertain as of closing, dward G. Puhl, Esq., and Puhl, Eastman & Thrasher shall retain from the consideration paid ercunder the sum of Tcn Thousand ($10,000.00) Dollars as escrow agent for a period of rty-five (45) days after closing. Said sum shall be used to pay any such payablcs (by isbursement of the necessary amount to Buyer to cover checks issued to the appropriate cndor for a like amount) and any balance remaining at the end of the thirty-day period shall disbursed to Seller upon written approval of Buyer. This procedure is intended to be a g pplement to and not a limitation of the obligation of Seller to be responsible for obligations d liabilities of Indian Springs Associates, LLC accruing prior to the closing. ,,~~,;,~,~~ Page 3 of 7 14. Authorization to Release Information. By accepting this offer and signing below, ndian Springs Associates, LLC, hereby authorizes PNC Bank, N.A., as successor in interest o Pennsylvania State Bank, to release information to Buyer's counsel, Puhl, Eastman & 'hrasher, of 220 Baltimore Street, Gettysburg, PA 17325, related to the mortgage given by ndian Springs Associates, LLC to Pennsylvania State Bank, dated December 28, 2000, in the final amount of $1,130,000, Loan No. 15. Defects in Title. Should the Seller be unable to carry out this agreement by reason ~f a valid or legal defect in title which the Buyer is unwilling to waive, all sums paid iereunder by the Buyer to the Seller shall be returned to the Buyer, who shall thereupon urrender possession of the real estate to the Seller (if the Buyer has received possession hereof), without reimbursement; provided however, that if any such valid or legal defect in itle arises, the Seller shall have a reasonable time in which to endeavor to correct the same at Seller's expense. 16. Owner',s Affdavit. At final settlement, Seller shall execute an Owner's Affidavit stantially in the form attached hereto as Exhibit "B," representing and warranting, among ~r things, that Seller has not dumped or caused to be dumped any hazardous or toxic waste the Property and Seller is not aware of the existence of any hazardous or toxic waste 17. Insurance. rrom the date of this agreement until the date of the delivery of the :ed, the Seller agrees to continue in effect the fire and/or casualty insurance now carried by e Seller on the building or buildings on the premises covered by this agrecmcnt. In ~nsideration thereof, this agreement will not be canceled or affected by reason of damage or ;struction due to fire or other casualty. 'fhe net proceeds of any insurance collected by the Eller prior to the date of final settlement will be paid or credited to Buyer at settlement, and I unpaid claims and rights in connection with losses under any policies will be assigned to uyer at settlement. The amount of such unpaid claims will not, however, be credited on ,count of the sale price. The Buyer may, at Buyer's option, insure Buyer's interest in said cmises. l S. Buyer's Default. Should Buyer default on this agrecmcnt, all sums deposited in shall be forfeited and retained by the Seller as liquidated damages, and the parties ,,,,,~~,,, Page 4 of 7 gall have no further liability with respect to each other and to the Property. 19. Time of the Essence. Time is of the essence of this agreement and all of its terms nd conditions. 1'he Buyer agrees with the Seller to purchase said tract of land and to pay the foresaid sale price in the manner and at the times specified in this agreement. 20. Notices. All notices, demands, or communications permitted or required to be iven hereunder shall be in writing and sent via USPS certified mail, postage prepaid, return ;ceipt requested or delivered by recognized overnight commercial carrier, shipping prepaid. uch notices, if properly delivered as aforesaid, shall be deemed given on the date of actual ~ceipt. Notices shall be addressed to the parties at the addresses shown below or to such other dress as any party shall direct in accordance with the provisions hereof: If to Indian Springs Associates, LLC: Indian Springs Associates, LLC 6046 Edwards Drive Mechanicsburg, PA 17050 Wilh copy to: Indian Springs Associates, 1..L,C c/o R&D Development 242 West Chocolate Ave. Flershcy, PA 17033 With courtesy email copies to If to RL Reiner, LLC: With copy to: With courtesy email copies to: /~v b~~`~ C ~r I __-- -__~ _..J_L___,C~L~ J ~~ e _~~ cam ~-. RL Reiner, LLC P.O. Box 34682 Bethesda, MD 20827-0682 Cdward G. Puhl, lsquirc 220 Baltimore Street Gettysburg, PA 17325 edward.puhl@comcast.net RpscS@aol.com 21. Entire Agreement. '['his agreement constitutes the entire agreement between the ics and it supersedes all prior discussions, understandings or agreements between the 22. Brokerage. Neither the Seller nor the Buyer is represented by a real estate broker ~;~~,,,~,~~ Page 5 of 7 n this transaction. 23. Assignment. Buyer may transfer or assign this Agreement to any entity in which dall L. Reiner has a controlling interest without the written consent of Seller. 24. Binding Effect 'fhe undersigned covenant and agree that this agreement shall be lly binding upon and inure to the benefit of the parties hereto and their respective personal fives, heirs, successors and assigns. 25. Offer Shall Lapse. If not accepted by Seller in a writing delivered to Buyer within ~n (7) days from the date the purchase offer was made by Buyer (which date appears Bath Buyer's signature below), this offer shall lapse 26. Arbitration. The Seiler and Buyer agree that disputes relating to this Agreement II be submitted to nonbinding arbitration in Adams County, I'cnnsylvania. Each party 11 select an arbitrator and the two arbitrators sa selected shall select a third arbitrator wcen them, the controversy being heard by the panel of three arbitrators thus selected. "I'hc ties shall bear the cost of the arbitration equally between them. An appeal of the decision the panel of arbitrators shall be filed in the Court of Common Pleas of Adams County, insvlvania. ~`' IN WITNESS WHEREOF, the undersigned parties, intending to be legally bound ~ crcby, have hereunto set their hands and seals the day and year first above written, this grcemcnt being executed in two (2) counterparts, each of which is hereby declared to be an riginal. t-~-N~53 ~ ~'-~d' _..._-~~ SELLER: INDIAN SPRINGS ASSOCIA"I'ES, C.[,C: Member ~cr ~jP ' ['age 6 o f 7 Rye UI7i?010 ~ l~'/ / --• im~k' e4~ ~F ...~h~cih s 4 ~ ~ arI U~J ,rJw~,, ~ ~ ~IVlttcst: BUYER: RL REINER, LLC _ _ Randall L. Reiner, Manager ~ ated: _ Z~d~ / ~ _ _ ~_ Rr~.,#~~~~~~~~ Page 7 of 7 OWNER'S AFF'IDAVI'T S'1'A'1'E (~F I'I~:NNSYI~VANIA, COUN'1'~ OF O' this, the T_ day of 2010, before me, the undersigned officer, a otary Public in and for said state and county, personally appeared who having been by me duly sworn according to law, depose and say: 1. 'that t ; ey are the owners of the premises situate in , County, k own as ,Pennsylvania, and arc the same as named as grantea in the deed recorded in the office of the Recorder of Uecds of County, 1'! nnsylvania, in Record Book at page ; 2. 't'hat ; o alterations, additions or repairs have been made to said premises, nor are there any appliance' or fixtures attached to said premises which have not been paid for in full; and that there arc o outstanding or disputed claims for any such work or item; 3. 'That here arc no liens or encumbrances (mortgages, deeds of trust, judgments, tax liens, mechanic 'liens, etc.) known to the undersigned, which are not being properly provided for in this trans ction; 4. T'hat' here has been no work done, or notice received that work is to be done, by the municipal ty (city, borough or township) or at its direction, in connection with the installation of sewer or water or for improvements such as paving or repaving of streets or alleys, or the installatid of curbs or sidewalks; 5. 'T'hat n' notice has been served by any governmental authority for the removal or abatement of any nuisa ce, for the violation of any zoning regulation or concerning the condemnation of any portion o said premises; 6. 'T'hat there has been no violation of any restrictions affecting the premises; 7. "That t ere arc no disputes with any adjoining property owners as to the location of property lines and o improvements encroach onto adjoining property; 8. 'T'hat lih~ere are no purchase money obligations being created in this translcr; 9. 'That there are no unrecorded leases or agreements affecting the premises in question; 10. "That i he present transaction is not made for the purpose of hindering, delaying or defrauding any credi rs of said owners and does not come within the provisions of the Bankruptcy or Insolvenc nets (or any amendments thereof); (Rev. 2/10) Exhibit "I3" l 1. '1'ha all real estate taxes assessed against said premises have been paid in full to and including the 2010 county and township taxes and the 2009/10 school taxes; l2. That no notices of any interim tax assessments nor bills for same have been received; 13. 'fhax said affiants are not aware of any radon gas affecting the premises; 14. "I'hatl said affiants have not dumped or caused to be dumped any hazardous or toxic waste on the nropc~ v and aft ants are not aware of the existence of any hazardous or toxic waste thereon; 15. 'I'hal~ there are no federal or state taxes due and owing that could become liens against said premises 16. Tha no portion of this property is a "Wetland," as defined in 33 C.F.R. §328.3(b) or in 25 Pa. Cody § 105.1. 'that with respect to this property or any portion thereof, the said owners have not viola] ed, have not caused to be violated and have no notice or knowledge of any violations of "The Cl¢ n Water Act of 1977," as amended (33 U.S.C. §1251 ct seq.), the Pennsylvania "Dam Safety a' d Encroachments Act," as amended (32 P. S. §693.1 et seq.) and the Pennsylvania "Clean treams Law," as amended (35 P. S. §691.1 et seq.). 'that the said owners have not received any notice or notices from the United States Environmental Protection Agency, the United tates Army Corps of Engineers, the I'cnnsylvania Department of E;nvironmcntal Rcsourc s or any other State or Federal agency which state that any further development or improve' ent would be restricted or prohibited with respect to this property; 17. 1'hat~no overdue support obligations exist in this or any other state against either aftiant; 18. 'l'hat~no support orders are entered against either affiants 19. "I'ha any power of attorney used in connection with the within conveyance has not been revoked r terminated by death of the principal; and 20. 'Thai) the fore belief. this affidavit is made for information and verification purposes and affiants aver that ping statements are true and correct to the best of their knowledge, information and Sworn to ~ d subscribed before me the day any year aforesaid. Notary Pu lie My commC sion expires: (Rcv.2il(1) Exhibit "13" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - EQUITY RL REINER, LLC, No. 10-3046 Equity Plaintiff , INDIAN SPRINGS ASSOCIATES, LLC, ' -' Defendant Da PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS Plaintiff, RL Reiner, LLC, by its undersigned counsel, Edward G. Puhl, Esquire, of Puhl, Eastman & Thrasher, responds to Defendant's Preliminary Objections as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part; denied in part. Plaintiff admits his counsel drafted the Agreement, but denies the implication that Defendant's counsel had no opportunity to review and approve the Agreement which, in paragraph 8, provides that "[flor a period of seven (7) days following the execution of this Agreement it shall be subject to the review and approval of counsel for each party." 5. Admitted. 6. Admitted in part; denied in part. Plaintiff admits he filed praecipes for a writ of summons and lis pendens in the Court of Common Pleas of Cumberland County, Pennsylvania, on May 10, 2010. However, by causing a writ of summons to be issued on 1 May 10, 2010, Plaintiff did not "submit the instant dispute" to this Court for an adjudication, as alleged. Defendant was not required to respond to the writ of summons and, in fact, did not respond to the writ for over four months, after which time Defendant had the Prothonotary of Cumberland County issue a Rule to File Complaint upon Plaintiff. Plaintiff would not have filed a complaint in Cumberland County, Pennsylvania, but for the fact that he was compelled to do so by the Defendant. 7. Admitted in part; denied in part. Plaintiff admits that the choice of forum clause in the Agreement would otherwise make venue in Cumberland County improper. However, because the Defendant entered a Rule to File Complaint upon the Plaintiff (rather than a motion to compel arbitration under Pa. R. C. P. 1329), Plaintiff was compelled to file the complaint in Cumberland County. Having caused the complaint to be filed in Cumberland County, Defendant's objection to venue must be deemed waived. WHEREFORE, Plaintiff respectfully requests this Honorable Court to overrule Defendant's preliminary objection. Respectfully submitted, PURL, EASTMAN & THRASHER I Dated: November 10, 2010 Edward G. Puhl Attorney for Plaintiff 220 Baltimore Street Gettysburg, PA 17325 (717) 334-2159 PA Attorney ID No. 55709 edward.puhl@comcast.net 2 T, Randall L. Reiner, do hereby state that T am the sole member of RL Reiner, LLC:, that T am authorized to make this verification, and that the facts set forth in the foregoing Response to Defendant's Preliminary Objections are true and correct to the best of my knowledge, information and belief. T understand than this statement is being made subject to the penalties of 18 Pa.C_S_ §4904, relating to unsworn falsification to authorities. Datod: November J 2010 AA2=? Randall L. Reiner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - EQUITY RL REINER, LLC, Plaintiff No. 10-3046 Equity V. INDIAN SPRINGS ASSOCIATES, LLC, Defendant CERTIFICATE OF SERVICE AND NOW, this 10th day of November, 2010, I, Edward G. Puhl, Esquire, of Puhl, Eastman & Thrasher, attorney for Plaintiff, hereby certify that I have this date served Plaintiffs Response to Defendant's Preliminary Objections by sending a true copy first class mail, postage prepaid, to: Bruce J. Warshawsky, Esquire CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 PUHL, EASTMAN & THRASHER By Edward G. Puhl Attorney for Plaintiff 220 Baltimore Street Gettysburg, PA 17325 (717) 334-2159 PA Attorney ID No. 55709 edward.puhl@comcast.net I c14- cA- 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.) CAPTION OF CASE (entire caption must be stated in full) - ir, r? rfi RL REINER, LLC ?- _< t r: vs. ° c INDIAN SPRING ASSOCIATES, LLC w R ? No. 3046 2010 emt: 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminarv Obiections to Plaintiffs Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Edward G. Puhl, Puhl, Eastman & Thrasher, 220 Baltimore Street, Gettysburg, PA 17325 (Name and Address) (b) for defendants: Bruce J. Warshawsky, Cunningham & Chemicoff, P.C., 2320 N. 2nd St., Harrisburg, PA 17110 (Name and Address) Nicholas A. Fanelli, Cunningham & Chemicoff, P.C., 2320 N. 2nd St., Harrisburg, PA 17110 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 15, 2010 Print your name c /? ?l O l Date: C., Attorney for 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. RL REINER, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. CASE NO: 10-3046 INDIAN SPRINGS ASSOCIATES, LLC, CIVIL ACTION - EQUITY Defendant CERTIFICATE OF SERVICE I, Nicholas Fanelli, Esquire of Cunningham & Chernicoff, P.C., do hereby certify that a true and correct copy of the PRAECIPE FOR LISTING CASE FOR ARGUMENT in the above-captioned matter was sent first class U.S. Mail, First Class Mail, postage prepaid on this date, to the following: Edward G. Puhl, Esquire 220 Baltimore Street Gettysburg, PA 17325 Date: November I, 2010 CUNNING CHERNIC0 F, P.C. By: Nicholas Fanelli 2320 North Second Street Harrisburg, PA 17110 Telephone: (717)238-6570 F:\Tlome\BJW,DOCS\INSrM DEVELOPMEN Undian Springs\RL REINERTracipe to List Argument Court_COS.wpd RL REINER, LLC, Plaintiff V. INDIAN SPRINGS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO: 10-3046 CIVIL ACTION - EQUITY PRAECIPE TO FILE DEPOSITION TRANSCRIPT OF RECORD PURSUANT TO PA.R.C.P. 206.6 Pursuant to Pa. R.C.P. 206.6 and Order of Court, kindly enter file of record the transcript of the deposition of Donald Erwin, corporate representative of Defendant, Indian Springs Associates, LLC. CUNNINGHAM & CHERNICOFF, P.C. B c . Warshawsky, squire PA Supreme Court ID# 58799 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second. Street Harrisburg, PA 17110 Dated: December 9, 2010 0 Ir-nrn --4co 'n C :)-n Cn :x = n ?rn w --i 70 EXHIBIT `A' „ C RL REINER, LLC, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : VS CASE NO. 10-3046 INDIAN SPRINGS ASSOCIATES,*LLC, CIVIL ACTION - EQUITY DEFENDANT TRANSCRIPT OF PROCEEDINGS DEPOSITION OF: DONALD ERWIN TAKEN BY: DEFENDANT BEFORE: HILLARY M. HAZLETT, REPORTER NOTARY PUBLIC DATE: NOVEMBER 22, 2010, 9:55 A.M. PLACE: 2320 NORTH SECOND STREET HARRISBURG, PENNSYLVANIA i APPEARANCES: PUHL, EASTMAN & THRASHER BY: EDWARD G. PUHL, ESQUIRE FOR - PLAINTIFF CUNNINGHAM & CHERNICOFF BY: BRUCE ]. WARSHAWSKY, ESQUIRE FOR - DEFENDANT • R I 91 ARCHIVE REPORTING & CAPTIONING SERVICE, INC. (717) 234-5922 ?? 2336 N. Second Street • Harrisburg, PA 17110 FAX (717) 234-6190 2 • • 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 I N D E X EXAMINATION DEPOSITION OF 4 Donald Erwin By Mr. Warshawsky By Mr. Puhl i PAGE 3,25 18,29 EXHIBITS DEPOSITION EXHIBIT NO. 1 - packet of documents A t .a MARKED 6 Archive Reporting & Captioning Service, Inc. i 3 • • 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 STIPULATION ItAis hereby stipulated'by and between counsel for the respective parties that reading, signing, sealing, and certification are waived; and that all objections except as to the form of the question are reserved to the time of the trial. DONALD ERWIN, called as a witness, being duly sworn, testified as follows: r, EXAMINATION BY MR. WARSHAWSKY: Q Good morning, Mr. Erwin. A Good morning. Q You are here today for a deposition on behalf of Indian Springs Associates, LLC. Indian Springs is the Defendant in an action which has been brought in Cumberland County Docketed at 10-,3046 by RL Reiner, LLC. Are you familiar with that litigation? A Yes, I am. Q And what is your role in relationship to Indian Springs Associates, LLC? A I am a partner in the LLC, the managing partner. Archive Reporting & Captioning Service, Inc. 4 E • 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 Would that be a member? A Member. Sorry. Managing member. Q Are you authorized to provide testimony on behalf of Indian Springs? A Yes, I am. Q Okay. Indian Springs is the owner of certain real estate in Cumberland County; is that correct? A That is correct. Q Okay. Could you just briefly describe what that real estate is? A It is a mobile home community located on Kline Road. It is approximately 50 acres of ground with improvements to accommodate approximately 70 homes. Q When you say Kline Road, exactly where is Kline Road? A Southampton Township, Cumberland County. Q Okay. And when did Indian Springs approximately acquire this piece of real estate? A Approximately eight years ago. Q Okay. Do you recall the purchase price? A Yes. I believe it was $1,090,000. Q And how was the property financed? A Through a mortgage. At the time, there was just the first phase built, which is approximately 36 lots. There is a mortgage provided by a Pennsylvania Archive Reporting & Captioning Service, Inc. 5 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 State Bank in the amount of approximately a million dollars, which also would have included construction funds to build out the Phase 2, which is about 24, 25 lots. Q Okay. You said Pennsylvania State Bank. What is Pennsylvania State Bank now? A That -- Pennsylvania State Bank was acquired by PNC a few years back. Q And the mortgage that you discussed, do you have an idea of generally what the payoff amount for that mortgage is today? A Most recent payoff number was approximately $801,000 that was provided to me by PNC. Q Okay. And back in March of this year, what would the balance on that mortgage have been? A Slightly less than that;guesstimate. I don't have the hard number from PNC. I would guesstimate $780,000. Q Has Indian Springs made any payments on that mortgage since March of this year? A No. Q And so what would account for the difference between March and today? A The interest accrual. Q What about outstanding tax obligations on the Archive Reporting & Captioning Service, Inc. 6 1 z 3 • 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 property? Is it paid, up-to-date? A No. There are taxes owed in the Tax Claim Bureau and they amount to about $50,000. Q Okay. And what is the reason for Indian Springs interest in selling the property? A Well, PNC has threatened foreclosure, initiated foreclosure. They want the property liquidated. They want their mortgage paid off. Q Earlier this year and I'm going to use March as kind of a benchmark, did you engage in discussions on behalf of Indian Springs with a representative of RL Reiner, LLC, relative to this piece of real estate? A Yes, we did. (Deposition Exhibit No. 1 was marked for identification.) MR. WARSHAWSKY: Okay. I have marked for our use, Exhibit No. 1. Ed, I have given you a copy there and attached to Exhibit No. 1 is Exhibit C. BY MR. WARSHAWSKY: Q If you can kind of just thumb through, is there an agreement of sale? A Yes. Q And what is the date on that agreement? A March the 9th, 2010. Q And is this the agreement for the property you Archive Reporting & Captioning Service, Inc. 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 just testified about? A That is correct. Q And what is the purchase price for that -- for the property? A $65,0, 000 . Q Okay. And the last -- sixth page of that document, there is a signature for Indian Springs. Actually, there are two signatures for Indian Springs. Do you know whose signatures those are? A The other member Robert K. Erwin, my brother, and my signature as well. I'm the seller side and -- Q You don't have to worry about the buyers. I just want to be sure that you signed. A Yes, that is my signature and my brother's. Q Okay. Now, at the time of the agreement, the agreement was executed or prior thereto, did -- did Indian Springs have discussions with Reiner about the status of PNC's mortgage and whether that mortgage would be released under this agreement if this agreement were consummated? A At that time and prior to this time, we had conversations with regards to Pk 's mortgage amount exceeding the purchase amount. I informed the buyer that I had lots -- approximately $300,000 worth of lots collateralized with Archive Reporting & Captioning Service, Inc. 8 1 2 3 4 5 0 16 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PNC to make up the difference -- perceived difference ati that time. We didn't have the contract. This preceded this contract to bridge any deficiencies in the sale of the property as to the mortgage amount. Q You mentioned some lots. These lots are unrelated to the property that we are discussing? A That is correct. The lots are owned by West Wood Hills Associates, which is a solely owned LLC by myself. Q Okay. But as it relates to this agreement and the purchase price that Reiner was willing to pay, if this agreement was consummated, would PNC's mortgage have been paid off in its entirety? A No. Q At the time this agreement was executed, was it your understanding that absent some other arrangement that PNC would release its mortgage to allow this transaction to occur? A PNC had to be approached to determine what their release number would be. The initial mortgage with Pennsylvania State Bank, PNC taking it over and I did not know what PNC would take to sell -- to release the mortgage and let us sell the property. Q Okay. Did the buyer -- did Reiner know that Archive Reporting & Captioning Service, Inc. 9 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 the purchase price it was willing to pay would not in and of itself fully satisfy PNC's mortgage when the agreement was executed? A Yes. Q And after the agreement was executed, what, if anything, did you discuss with PNC about obtaining a release of the mortgage on the property that is the subject of this litigation and in connection with this proposed transaction? A Well, we had requested a sale of the property and any deficiencies in the mortgage amounts be offset by other real estate holdings between Robert and myself. PNC refused to consider selling this asset until they were satisfied with their total mortgage, accrued interest, the interest, penalties, legal fees, etc. Q When you say total mortgage, are you referring to the total mortgage on this property alone or other holdings that PNC also had mortgages on? A To my knowledge, PNC had no other properties other than the West Wood Hills lots, which they had a mortgage on and my understanding was the mortgage on Indian Springs. Q Okay. A There were no other mortgages on West Wood Archive Reporting & Captioning Service, Inc. 10 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 Hills. Q Now, after this agreement was executed and after you had a discussion with PNC, what, if anything, did you do with respect to the West Wood Hills lots? A I listed them for sale immediately with a real estate broker, residential real estate broker. Q Which real estate is that? A Keller Williams, Michael Pion. The broker was Keller Williams Real Estate. Q And are those lots still listed today? A Yes, they are. Q Since they have been listed, have you received any offers for them? A No. Q Are they listed for -- well, the listing price, is it at, above, or below the perceived fair market value? A They are listed at exactly what the last half dozen lots had sold for in the community, which is approximately $65,000. Q And when was the last lot sold in the West Wood Hills community? A Approximately two years ago. Q Okay. But you have not received any offers -- A No. Archive Reporting & Captioning Service, Inc. 11 • r 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 Q -- on these properties? Okay. Now, were there other real estate holdings that either you or your brother Bob owned that were sold after the Reiner agreement was entered into to raise cash and to pay down some of the PNC mortgages? A Yes. Two properties were sold to small office buildings in Hershey and reduced the mortgage to PNC by approximately $700,000. Q And were those transactions consummated? A Yes, they were. Q Do you recall when they were consummated? A Within the year. Q Within this year? A Within this year. .Q This agreement was executed on March -- A March. Q March of this year. So -- A It would have been after March. Julv -- June, July, or August. Q Let's go back to the agreement, if we can. You have got it open in front of you. Do you know what the outside closing date was under this agreement? A Outside? You mean after several extensions? Q No. The document itself. What was the last closing date under this agreement, if you know? Archive Reporting & Captioning Service, Inc. 12 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 The -- the closing date or -- to answer your question, there were several -- there was several extensions as to the closing date. The closing date would have been approximately early June that the property could have sold under the extensions and under the provisions of the agreement, I believe. It is seven days after -- after due diligence. Q Okay. Let's talk about due diligence. How long was the due diligence under this initial agreement? A The initial period was 14 days. Q Okay. A And then it had -- then the buyer had the opportunity to extend that due diligence period for additional periods. I believe there was total of three extensions built into the agreement and then closing to occur within seven days following the expiration of the study period. Q Okay. And so that would have taken us roughly 49 days after the agreement was signed, three 14-day periods and an additional 7? A I believe so, yes. Q So your understanding was that it was sometime in early May that this had to close at the outside date, right? Archive Reporting & Captioning Service, Inc. 13 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 That would be correct. Q I want to direct your attention to Exhibit D of the Exhibit 1 of the deposition here, which is an addendum to that agreement of sale. A Yes. Q Now, on the second page of that agreement, is that your signature on behalf of Indian Springs? A Yes. Q And what is the date of this addendum? A May the 27th. Q Okay. So at that point when the addendum was executed, was it your understanding that the March 9, 2010 agreement was already out of contract? A I believe, yes. Q Okay. And what was the purpose of signing the addendum? What was your purpose on behalf of Indian Springs to signing the addendum? A To give the buyer ample time to make closing. Q And when you say to give the buyer ample time to make closing, what impediments, if any, were there when this addendum was executed that would have prevented closing from occurring? A Well, I don't think we have ever gotten confirmation that he completed his due diligence or his study on the initial contract, so he would have had the Archive Reporting & Captioning Service, Inc. 14 1 z 3 • • 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 opportunity to complete his study and confirm that he is purchasing the property with clear title, probably put insurance in place. The typical actions that a buyer needs to do to acquire property. Q When you say clear title, when this addendum was executed, were you capable of conveying clear title? A To the extent that PNC would take a payoff of their underlying first mortgage on the property. Q But would PNC have taken a payoff when this addendum was executed based on the circumstances at that time? A No. They were and still are demanding the full balance of their mortgage for -- to release the property, to permit the property to be sold. Q Now, did you have an understanding when this addendum was executed as to what the buyer could do under this addendum once the -- well, strike that. What was the -- under this addendum, what was the outside settlement date? A June the 18th. Q And did you have an understanding about what the buyer could do prior to the outside settlement date as it is contained in this addendum? A Well, the buyer could buy the properties and buy the property, sell the -- or satisfy the -- with the Archive Reporting & Captioning Service, Inc. 15 • 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 proceeds of the sale enable us to satisfy the PNC mortgage on the mortgage. The previously spoken to lots in West Wood Hills certainly would have or could have been sold and we even made the offer to the buyer to buy this property and we would include the lots in West Wood Hills in the sale to enable him to -- to provide the funds to pay off PNC to close on the property. Q And did the buyer ever exercise that -- that offer? A No. Q Okay. Did you have an understanding about what the buyer could do in terms of offering to extend the June 18 outside closing date under this agreement, under this addendum? A I'm sorry. Could you ask -- Q Did you have an understanding as to what the buyer could do to offer to extend the outside closing date under this addendum? A He could settle with enough funds to pay off PNC Bank or not. Q Okay. When you signed this addendum, did you -- did you have an understanding about whether you were obligated to further extend the outside settlement date? A No. Archive Reporting & Captioning Service, Inc. 16 q? _ 3 4 5 6 7 8 9 10 11 12 • I• 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. But did you know that the buyer could make the offer to extend it or to cancel the contract? A Yes. Q Or they could pay enough to PNC to pay them A Or they could put the money up to pay off PNC. We already reduced it by over $700,000. Q Now, after June 18, are you aware of further discussions about possibly extending the outside settlement date under another addendum? A I believe the buyer proposed another addendum; but with our conversation with PNC, that would make no sense. Q Okay. A We had to find a buyer that would pay enough money to pay off PNC. Q Now, prior to June 18th, did you attempt to seek a buyer who could possibly pay off PNC completely? A Prior to June 18th, yeah, I talked to a dozen different potential buyers prior to -- prior to our initial contract with Reiner -- Q Okay. A -- with the buyer. Q But after when the Reiner contract was in place and before the 18th of June, did you actively shop the Archive Reporting & Captioning Service, Inc. 17 • i 11 1 property? 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 No. Q And then after the 18th of June, did you believe that Indian Springs was free to shop the property? A Absolutely. Q Do you have an understanding about what the lis pendens that has been placed on the property does with respect to the salability of the property? A Yes. It clouds the title, and we can't sell the property with clear title even if we had the funds to pay off PNC. Q So if you were to locate a buyer who was willing to pay enough to satisfy PNC, the lis pendens would prevent you from doing that? A That is correct. Prevent us from settling and selling the property. Q Right. I have marked as Deposition Exhibit No. 1 the motion to strike the lis pendens that was filed on behalf of Indian Springs in this case and its entireties. Did you review this motion? A Yes, I did. Q And are the statements contained therein to your knowledge true and correct? A Yes, they are. Archive Reporting & Captioning Service, Inc. 18 • 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 MR. WARSHAWSKY: I have nothing further. EXAMINATION BY MR. PUHL:. Q Mr. Erwin, you indicated you have had or have a listing agreement with Keller Williams? A That is correct. Q Is that listing agreement still in force? A Yes, it is. Q What was the term of the original agreement? A The term of the original listing agreement? Q Yes. A I believe it was a 12-month term. I can't speak to -- it is 6 or 12 months, their standard listing. Q Are you still in the first term of that agreement? A Yes. Q It has not been renewed then? A No, it has not. No need to. Q You put these lots on the market you said at the price obtained last two years ago at around $65,000? A That is correct. Q Have you reduced the price at all since putting Archive Reporting & Captioning Service, Inc. 19 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 them on the market? A No. Q Okay. Do you think the price that was obtained two years ago is reflective of fair market value of these lots? A Yes. Q Now, you indicated that Randy Reiner could pay off PNC as an option as opposed to extending the contract further. I think you said he had the ability to pay off PNC at a higher price presumably, right? A I think what I'm saying is I don't know what his abilities are per se. I'm saying that it is my understanding that PNC will not permit the property to be sold until such time as their mortgage is paid off in full. Q They are not going to permit what we understand to be a short sale, is that what you are saying? A That is all I'm saying. Q And it was your intention, wasn't it, to sell these lots to make up the deficiency between what Randy had offered and what PNC was demanding? A Our intention was to sell Indian Springs and/or sell the West Wood lots and satisfy the PNC mortgage. Q Okay. And so you have approximately, what, three lots left to go in West Wood; is that right? Archive Reporting & Captioning Service, Inc. 20 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 There are three lots available in West Wood Hills. Q At $65,000 apiece you are valuing them? A Approximately. Q So the $65,000 apiece per lot plus the 650,000 that Randy obligated himself to pay -- A I'm sorry. You're going to have speak up. I didn't hear. Q Am I correct in understanding then the $65,000 you hoped to obtain per each West Wood Hills lot plus the $650,000 that Randy had obligated himself to pay under the contract would have been sufficient to pay off PNC? A It depends on what time. The PNC mortgage is accruing interest. If you are talking about six months ago, talking about 12 months from now, it depends on when the funds are available to satisfy PNC. Q I understand that interest is accruing. A I'm trying to answer your question. Q And the longer we go here, the more deficiency there is going to be? A The higher the value. Q The higher the value. Now, did you indicate that you had offered to my client Randy Reiner the three lots that you have not been able to sell? Archive Reporting & Captioning Service, Inc. 21 1 e 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 We offered the lots in West Wood and the property to your client to purchase in the -- at a dollar value that would satisfy PNC Bank. Q Okay. Which would be, I guess, the combination of $801,000 right now? A Right now, the most current or the most recent payoff number that I had seen from PNC Bank, I believe, was $801,000 and that most current -- I received that number well over a month ago. Q I realize PNC is not the easiest bank to deal with. If you were willing to sell your three lots to my client for less than $65,000, how come you haven't reduced the price and attempted to sell them to others for less than $65,000? A I'm not in charge of the marketing. I gave that to the professionals to sell the properties. My conversations with the agent, I would take less than the total listing price; but it is up to them to get the buyer. Q Have you received any offers at all? A No. Q Now, you indicated you wanted to find a buyer who would pay more than Randy offered for Indian Springs? A No. To be perfectly clear, I said and I will Archive Reporting & Captioning Service, Inc. 22 1 2 3 4 5 6 7 F 8 • • 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 say that I will -- we will sell Indian Springs including the lots, the West Wood in an amount sufficient to satisfy PNC Bank. Q Are you under a forbearance agreement right now with PNC Bank? A I personally had entered into a forbearance agreement with PNC Bank about five years ago of which I questioned -- actually, the forbearance agreement was entered into on behalf of Pennsylvania State Bank. To the extent that it has passed through to PNC hasn't been -- is not perfectly clear to me. To answer your question, I don't know. Q You don't know whether there are -- A I don't know. They have not executed personally against me, but they have executed against Indian Springs Associates. Q Well, tell me about Kevin Cohick. Do you know the man? A Yes. Q How do you know him? A He had made an offer to purchase Indian Springs Associates. He is -- his family owns other mobile home parks. Q I think he owns a mobile home park in Adams County. Archive Reporting & Captioning Service, Inc. 23 1 2 3 4 f 5 i • 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I believe he owns one in Gettysburg. I believe that is in Adams County, he or his family. Q Did he make a written offer? A Yes. Q Did you sign the agreement? A No. Q How much did you offer? A I believe it was approximately $650,000. Q Which is the same price Randall -- A Same price as Reiner. Q Were there any contingencies in his offer that made it significantly different than the one -- A Well, I really couldn't entertain it. At that point in time, we were under agreement with Reiner to sell the property. I can't tell you that I studied the offer that closely. Q West Wood Hills is owned by a separate LLC? A That is correct. Q And it is one that you control solely? A I'm the sole member. Q You did indicate your capacity with Indian Springs, was that as managing member? A That is correct. Q When does your contract expire with Keller Williams? Do you know the answer to that? Archive Reporting & Captioning Service, Inc. 24 ?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 A I don't have that in front of me. Q Do you have any -- have you identified any buyer who is willing to pay more than Randy Reiner has offered? A Yes. I have received an offer greater than his. Q In writing? A Yes. Q And who is that from? A Carlisle Group. Q And when did you receive that offer? A Approximately two months ago. Q Is Mr. Cohick a member of the Carlisle Group? A No. Q Is that an LLC or what is that? A I believe it is a real estate investment trust out of California. Q So it is not related to Carlisle, Pennsylvania? A No. Q It is just coincidentally -- A Just the name. Q And how much did they offer? A $1,350,000. Q For Indian Springs alone? A For Indian Springs alone. Archive Reporting & Captioning Service, Inc. 25 • is 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 Is that a cash offer? A It has cash amounts sufficient to satisfy PNC Bank with their mortgage, and it has financing included Q So if you could sell to Carlisle Group, you wouldn't then be required to sell your three lots in West Wood? A That is correct. MR. PUHL: I don't have any other questions. MR. WARSHAWSKY: I just have a couple in follow-up. EXAMINATION BY MR. WARSHAWSKY: Q Mr. Erwin, you testified that the payoff for PNC was approximately $801,000 but earlier testimony was the taxes outstanding were about 50. So in order to clear title on the Indian Springs parcel, what is your understanding of how much would have to be paid net? A The real estate taxes would have to be -- would have to be paid. PNC would have to receive their payoff, which at this point is greater than $801,000. What do I think the sale price would need to be? Archive Reporting & Captioning Service, Inc. 26 1 2 3 i E 4 5 6 7 8 9 • 0 850,000 plus. Q And I think Mr. Puhl ask about the package deal that would Springs and some of the West Wood lots carry an additional mortgage A ed you some questions have included Indian lots. The West Wood to PNC obligations, A I gave -- well, I gave Pennsylvania State Bank a first lien mortgage against the lots at West Wood Hills of $60,000 a lot. Initially, there were five lots, $300,000, which is part of my testimony and two of the lots were sold and three of the lots remain. Q Okay. And the package deal about which there was testimony would have required in addition to the payoff on Indian Springs an additional amount per lot that was -- that would have to go with the West Wood lots as well, correct? A Well, there would have to be a release from PNC for a minimum of $60,000 a lot. However, PNC advanced no funds towards those lots. So if PNC were satisfied with their payout on Indian Springs that would automatically release. Those funds were provided to PNC as protection -- provided to Pennsylvania State Bank as protection for their going through an audit and having an undervalued asset 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Archive Reporting & Captioning Service, Inc. 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 five-plus years previous -- Q Okay. A -- and several years prior to PNC's acquisition of Pennsylvania State Bank. So there was never any funds associated with the lots of West Wood. It was just providing them additional collateral against a marginally functioning Indian Springs mobile home community. Q So just so that I'm clear, after the March 9th agreement was entered into with Mr. Reiner and after your discussion with PNC about what it would take to clear title, the lots in West Wood were listed with Keller Williams, correct? A I'm sorry. The lots are -- were listed. I don't know the date that you are speaking to. Q But it was after you spoke with PNC. You wouldn't have listed the lots until you had a discussion with them? A That is correct. Q Then at some point during this time period, you had a discussion with Mr. Reiner about increasing his offer of $650,000 in an amount sufficient to allow you to clear title through PNC? A And I would supply him the -- this -- Q How many lots in West Wood? Archive Reporting & Captioning Service, Inc. 28 • • • 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 Three lots in West Wood Hills. Q And that discussion never paid off, that never came to -- A Never got an offer from him. Q And none of this discussion about West Wood lots occurred prior to the March 9, 2010 agreement, right? A That is correct. Q And in fact, the March 9, 2010 agreement contains no d iscussion or provision for West Wood lots? A No. Q Now, I just want to get to the agreement again. The agre ement provides for a provision for arbitration. Are you aware of that provision? A Yes. Q Did you read that provision before you signed it? A Yes. Q And was it your understanding that if there were a dispute that it would be submitted to arbitration? A Yes. Q Was that desirable for you? A It was preferable, yes. Q Why is that? Archive Reporting & Captioning Service, Inc. 29 f • • 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 Disputes in common court take extended periods of time. Q Okay. A And to the extent there would have been a dispute, it could have been resolved much quicker. Q Okay. And also, there's a provision that requires that the arbitration be conducted in Adams County. Do you know why that provision is in there? A It was drafted by the buyer's counsel so that was, I assume, their -- their request or their desire to have it argued in Adams County, which was acceptable to me. MR. WARSHAWSKY: That is all I have. EXAMINATION BY MR. PUHL: Q Mr. Erwin, are you aware that suit was filed in Cumberland County only upon issues of what is called a Rule to File Complaint? MR. WARSHAWSKY: I'm going to object because it calls for a legal conclusion. If he can answer it, he can. BY MR. PUHL: Q Are you aware that your attorney issued what is Archive Reporting & Captioning Service, Inc. 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 I ` 16 17 18 19 20 21 22 23 24 25 called a Rule to File Complaint? A I think I signed a verification. I don't -- I can't speak to the specifics of anything other than the facts that were associated with that filing. Q I'm not really expecting you to be familiar with Pennsylvania procedure. A That is all I'm saying. MR. PUHL: I have no other questions. MR. WARSHAWSKY: Nothing further. (The deposition concluded at 10:33 a.m.) Archive Reporting & Captioning Service, Inc. 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1C r 2C 2] 2; 2: 2' 2e COUNTY OF DAUPHIN SS. COMMONWEALTH OF PENNSYLVANIA . I, Hillary M. Hazlett, a 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 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 reporter, Hillary M. Hazlett, 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 contained fully and accurately in the notes by me on the within deposition and that this copy is a correct transcript of the same. In testimo whereof, I have hereu to subscribed my hayed Ois/,qt?' da frVvem r 10 Notary Pu My commission expires: September 29, 2011 Archive Reporting & Captioning Service, Inc. 32 I'• • • $ 27th [q -13:10 accrued n1 - 9:15 18:12,18:18, 4:3, 31:5 16:15,16:18, 29 [1] - 31:25 accruing [2) - 22:4, 22:7, 22:8, automatically[) 16:23,17:13, 20:15,20:18 23:5, 23:14, - 26:22 21:19, 21:22, $1,090,000 (,1- 3 accurately (1) - 27:10,28:6, available [2) - 24:3 4:21 31 18 28:12 28:9 20:17 20:1 buyer's D] - 29:9 : , , , $1,350,000 [11- acquire [2) - 4:18, 28:13 aware [q -16:8, buyers M - 7:12, 24:23 3,25 [1] - 2:5 14:4 allow [2] - 8:18, 28:14,29:18, 16:20 $300,000 m - 30th [l) - 31:22 acquired [i] - 5:7 27:22 29:25 BY p] -1:11, 26:10 7:25 36 [1] - 4:24 ition i i - alone [31- 9:18 1:18,1:20,3:13, , acqu s [ ] , - 6:3 000 1 $50 24:25 24:24 B 6:19 18:5 [ ] , 27;3 , , , 25 15 29 17 $60,000 (2] - 26:9, 4 acres [1] - 4:12 amount M - 5:1, : , : , 26:19 action [1) - 3:18 5:10, 6:3, 7:22, - 5:15 b l e 2 29:24 000 $66 22-2 7:23 8:5 , a anc [ ] , M - 49 [1] - 12:20 ACTION [1] -1:5 , , , 15 27 22 26 14:13 C 10:20,18:23, actions [i) - 14:3 , : : 0 bank [i] - 21:1 20:3, 20:5, 20:9, 5 actively [1) - amounts [2) - Bank [ts) - 5:1 21:12,21:14 16:25 9:11,25:2 , 5:5,5:6, 5:7, California [1] - $660,000 [a] - 7:5, Adams [a] - ample [2] - 13:18, 15:21 8:22 24:17 20:11, 23:8, 50 [21- 4:12, 22:24,23:2, 13:19 , , 21:3 21:7 22:3 cancel [1] -16:2 27:22 25:18 29:7, 29:11 answer [5) - 12:1, , , , 22:9 22:5 22:7 capable (1] - 14:6 $700,000 [21 - addendum [»] - 20:19,22:11, , , , 25:3, 26:7, capacity [1] - 11:8,16:7 000 $780 s 13:4,13:9, 23:25,29:22 wers i - 26:24, 27:4 23:21 [1] - , 13:11,13:16, [ ) ans based [11- 14:10 Carlisle [a] - 5:18 $801,000 [51- 6 [2]- 2:10,18:15 13:17,13:21, 14:5 14:10 31:12 apiece [? -20:3, BEFORE (1] - 24:10,24:13, 5:13, 21:5,21:8, 650,000 [1] - 20:5 . , 14:16 14:17 20:5 1:12 24:18,25:5 24 25 17 25 , , APPEARANCES behalf M - 3:16, cant' [i) - 26:5 : : , 14:18,14:23, 7 15:15 15:19 [1] -1:16 4:4,6:11,13:7, CASE [1) -1:4 , , 13:16 17:20 case (i] -17:20 1 15:22 16:10 approached [1] - , , , , 22:9 cash [3] -11:4, 16:11 8:20 7 [?] -12:21 addition [?] - approved [?) - below [1] - 10:16 25:1, 25:2 1 [a] - 2:10, 6:14, 6:17 6:18 13:3 70 [1] - 4:13 26:14 31:14 benchmark p) - 6:10 causes (i) - 31:7 certain ? - 4:6 , , , 8 additional [s] - arbitration M - 2 3 [ ) 17:19 12:14 12:21 28:13, 28:21, , between [a) - : certainly [1) - 10-3046 M - 1:4, , , 26:5' 26:15' 29.7 5:23, 9:12, 15:4 3:19 850,000 [1] - 26:1 27:6 argued (1] - 29:11 19:20 certification [1] - 10:33 [?) - 30:10 administer [i] - arrangement [1] - Bob [i] - 11:3 3:4 12 [2] -18:15, 9 31:5 bridge [1] - 8:4 certify [3] - 31:7, 20:16 9 13 briefly [1] - 4:9 31:10,31:17 advanced (l] - asset [2] - : , 112-month [1] - 26:19 26:25 broker [3) -10:6, charge (1] - 21:15 18:14 9 [3] - 13:12, 28:6, afterwards [?] - a associated [z) - 10:8 CHERNICOFF [1] 14 [11-12:10 28:9 31:15 27:5, 30:4 brother [2) - 7:10, -1:20 14-day [1] - 12:20 9:55 [1) -1:13 agent [1) - 21:17 Associates [51- 11:3 ' circumstances 18 [a) -15:14, 8th (z) - 6:24, 27:9 ago M - 4:19, 3:17, 3:23, 8:9, brother s [1] - (1) -14:10 16:8 7:14 CIVIL (1] -1:5 10:23,18:23, 22:16, 22:22 18,28 [?) - 2:6 14 20 A 19:4, 20:16, ASSOCIATES (i] brought (1) - 3:18 Claim (1) - 6:2 18th [57 - : , 21:9, 22:7, -1:5 BRUCE [1] -1:20 clear [lol -14:2, 16:17,16:19, m [1] - 30:10 a 24:12 assume [i] - build [1] - 5:3 14:5,14:6, 16:25,17:3 . -1:13 A M agreed [i] - 31:14 29:10 buildings [?) - 17:11, 21:25, . p] 11:7 25:19 22:11 2 abilities [1) - agreement [41] - attached [i] - 4 24 , , 27 9 27 12 19:12 6:21, 6:23, 6:25, 6:18 : , built [2) - : , : , ability [i] - 19:9 7:15,7:16,7:19, attempt [11 - 12:16 Bureau [1] - 6:3 27:23 client [31- 20:24 2 [11- 5:3 able [1) - 20:25 8:11, 8:13,8:16, 16:17 buy [3) - 14:24 , 21:2 21:12 2010 [s] -1 :1 3, absent [?) - 8:17 9:3, 9:5,10:2, attempted [i] - , 14:25 15:5 , close Cz] - 12:24 6:24 , 13:1 3, - Absolutely(i] 11:4,11:15, 21:13 , buyer [22) - 7:24 , 15:8 28:6,28:9, 17:6 11:20,11:22, 11:25 12:6 attention [1] - 13:2 , 8:25,12:12, closely [1] - 23:16 31:22 2011 [1) - 31:25 acceptable [i) - , , 12:9,12:16, attorney [1] - 13:18,13:19, closing [ill - 22 [1] -1:13 28;11 accommodate [1) 12:20, 13:4, 29:25 14:3,14:16, 11:22,11:25, 2320 [?) - 1:14 - 4:13 13:6,13:13, audit [1) -26:25 14:22,14:24, 12:1,12:3,12:4, 24[l] - 5:3 account [i) - 5:22 15:14, 18:7, August [l] - 11:19 15:5,15:9, 12:16,13:18, 25 [1] - 5:3 accrual [t) - 5:24 18:9 18:11 authorized [? - 15:13,15:18, 16:1,16:11, 13:20,13:22, 15:14,15:18 Archive Reporting & Captioning Service, Inc. 33 u • • clouds (1] -17:10 19:9, 20:12, Defendant [1] - 1:10, 3:8 7:23 five [3] - 22:7, Cohick l2] - 23:24 3:18 Donald [11- 2:4 except p] - 3:5 26:10,27:1 22:17, 24:13 control [1] - 23:19 DEFENDANT [31- down (21 -11:4, executed [13] - five-plus [1] - coincidentally Ill conversation Ill - 1:6,1:11,1:21 31:12 7:16, 8:16, 9:3, 27:1 - 24:20 16:12 deficiencies [z] - dozen [2l -10:19, 9:5,10:2,11:15, follow [1] - 25:11 collateral [11 - conversations [2] 8:4, 9:11 16:19 13:12,13:21, follow-up Ill - 27:7 - 7:22,21:17 deficiency [z] - drafted [11- 29:9 14:6,14:10, 25:11 collateralized Ill conveying [1] - 19:20,20:20 due Isl -12:7, 14:16, 22:14, following [1] - - 7;25 14:6 demanding [2l - 12:8,12:9, 22:15 12:17 combination [11- copy [2] - 6:17, 14:12,19:21 12:13,13:24 exercise (1] -15:9 follows (1] - 3:9 21:4 31:19 Deposition [21- duly [4 - 3:8, EXHIBIT Ill - 2:9 FOR [2] -1:19, commission Ill - correct [19] - 4:7, 6:14,17:18 31:11 Exhibit M - 6:14, 1:21 31:24 4:8,7:2,8:8, DEPOSITION [3[ - during [11- 27:20 6:17, 6:18,13:2, forbearance (31 - - l 13:1 17:16 1:10 2:3 2:9 13:3,17:18 22:4, 22:6, 22:8 common I l 29:1 , , 17:24,18:8, , , deposition 151- E EXHIBITS Ill - force Ell - 18:9 2 8 f l COMMON [1] 18:24,20:9, 3:16,13:3, : osure [2] - orec 1:2 23:18,23:23, 30:10,31:11, expecting Ill - 6:6,6:7 COMMONWEAL 25:8, 26:6, 31:19 early EA -12:5, 30:5 foregoing 11] - TH (1] - 31:2 26:17,27:13, depositions Ill - 12:24 expiration [l] - 31:7 Commonwealth 27:19,28:8, 31:6 easiest [1] - 21:10 12:17 form [1] - 3:5 [o] - 31:6 31:20 describe (1] - 4:9 EASTMAN [11- expire [1] - 23:24 free (11-17:4 community [a] - counsel [2] - 3:2, desirable [1] - 1:17 expires Ill - front [21 - 11:21, 4:11,10:19, 29:9 28:23 Ed Ill - 6'17 31:24 24:1 10:22, 27:8 COUNTY (2] - 1:2, desire [1] - 29:10 EDWARD [11- extend (Sl - full [2] - 14:12, Complaint [2l - 31:1 determine [1] - 1:18 12:13,15:13, 19:15 29:20, 30:1 County [a] - 3:19, 8:20 eight [11- 4:19 15:18,15:24, fully - 9:2, complete [11- 4:7, 4:16, 22:25, difference (3l - either [?1 - 11:2 16:2 318 14:1 23:2, 29:8, 5:22, 8:1 enable [21-15:1, extended [1] - functioning [11- completed [1] - 29:11,29:19 different [2l - 15:7 29:1 27:7 13:24 couple It] - 25:10 16:20, 23:12 engage [1] - 6:10 extending [2] - funds [81- 5:3, completely (l] - court Ill - 29:1 diligence [51- entered [4] -11:4, 16:9,19:8 15:7,15:20, 16:18 COURT Ill- 1:2 12:7,12:8,12:9, 22:6, 22:9, extensions [4] - 17:11, 20:17, concluded [l] - Cumberland [4] - 12:13,13:24 27:10 11:23,12:3, 26:20, 26:23, 30:10 3:19, 4:7, 4:16, direct (1] -13:2 entertain Ill - 12:6,12:15 27:5 i l 29:19 direction [11- 23:13 extent (3] - 14:7, us on (?] - conc 29;? CUMBERLAND 31:15 entireties [1] - 22:10, 29:4 G 17:21 conducted Ill - [1] -1:2 discuss Ill - 9:6 29:7 CUNNINGHAM discussed Ill - entirety Ill - 8:14 -1:5 EQUITY l generally Ill - confirm [1] - 14:1 Ill -1:20 5:9 I l confirmation Ill - current [21- 21:6, discussing [i] - ERWIN (2] - 1:10, 3:8 fact [q - 28:9 5:10 Gettysburg Ill - 13:24 21:8 8:7 Erwin s - 2:4 facts [1] - 30:4 23:1 connection - l discussion M - [ 1 1 I l D 10 3 27 11 3:14,7:10,18:6, fair [2] -10:16, given [1] - 6:17 9:8 : , : , 25:16 29:18 19:4 greater [2] - 24:5, consider p ] - 27:17,27:21, , 9:13 28:2, 28:5, ESQUIRE (21 - familiar [21 - 3:20, 25:24 construction Ill - DATE [l] -1:13 28:10 1:18,1:20 30:5 ground [1] - 4:12 5;2 date (le] - 6:1, discussions [3] - Estate Ill -10:9 family [2] - 22:22, Group [3l - 24:10, consummated (al 6:23,11:22, 6:10, 7:17,16:9 estate [11] - 4:7, 23:2 24:13, 25:5 - 7:20 8:13 11:25,12:1, dispute (2] - 4:10, 4:18,6:12, fees [1] - 9:15 guess (1] - 21:4 , , 11:9 11:1 1 12:3,12:4, 28:20, 29:5 9:12,10:6,10:7, few [1] - 5:8 guesstimate [2] - , contained (3] - 12:24,13:9, Disputes (11 - 11:2,24:16, File [2[ - 29:20, 5:16,5:17 14-19,14:22, 25:22 30:1 14:23 17:23, 29:1 , 31:18 15:14,15:19, 15 24 16 10 Docketed Ill - etc [1] - 9:16 filed [2] -17:19, H contains (?1- : , : , 3:19 evidence Ill- 29:18 28:10 27:15 DAUPHIN (1] - document [21 - 31:18 exactly [2] - 4:14 filing (?1 -30:4 financed [l] - half [11-10:18 contingencies Ill 31:1 7:7,11:24 , 10:18 4:22 hand [1] - 31:22 - 23:11 days [4] - 12:7, documents [1] - EXAMINATION financing [1] - hard Ill - 5:17 contract [col - 12:10,12:17, 2:10 [s] - 2:2 3:11 25:3 HARRISBURG Ill 8:3,8:4,13:13, 12:20 dollar [l] - 21:3 , , 18:3 25:13 , first [4] - 4:24 -1:15 13:25 ,16:2 , deal [3] - 21:10, dollars [1] - 5:2 , , 29:15 14:8,18:17, Hazlett pi - 31:4, 16:21,16:2 4, 26:3 26:13 DONALD (2] - exceeding [1] - 26:8 31:13, 31:23 Archive Reporting & Captioning Service, Inc. 34 • • • HAZLETT [1] - 24:25,25:19, 29:22 26:19 31:22 outside 181- 1:12 26:3, 26:15, less [41- 5:16, mobile (41- 4:11, NOVEMBER [11- 11:22,12:24, hear [11- 20:8 26:22,27:7 21:12, 21:14, 22:22,22:24, 1:13 14:19,14:22, hereby [2] - 3:2, INDIAN [11-1:5 21:17 27:8 number [s1- 5:12, 15:14,15:18, 31:7 indicate (21- lien (11- 26:8 money [2] -16:6, 5:17, 8:21, 21:7, 15:24,16:9 hereunto (1] - 20:23,23:21 liquidated [11 - 16:16 21:9 Outside [11- month [11- 21:9 11:23 31:21 indicated [3] - 6:7 Hershey (1] - 11:7 18:6,19:7, lis [31 -17:7, months [4] - Q outstanding M - 25 18 25 5 higher [3] - 19:10, 21:22 17:14, 17:19 18:15,20:15, : , : 20:22,20:23 informed [1] - listed (al -10:5, 20:16,24:12 oaths [11 - 31:5 owed (1] - 6:2 owned [4] - 8:8 HILLARY [1] - 7:24 initial pl - 8:21 10:10,10:12, 10:15 10:18 rooming [21- 3:14, 3:15 object [,] -29:21 , 8:9,11:3, 23:17 1;12 Hillary [3] - 31:4, , 12:9,12:10, , , 27:12, 27:14, mortgage [sa] - objections [,1 - 3:5 owner (,l - 4:6 31:13, 31:23 13:25,16:21 27:17 4:23, 4:25, 5:9, [31 - obligated owns [3l - 22:22, Hills [12] - 8:9, initiated (11- 6:6 listing [el -10:15, 5:11, 5:15,5:20, 7:22 6 8 7 18 15:24,20:6, 22:24, 23:1 9:21,10:1,10:4, insurance (11- 18:7,18:9, , : , : , 8 18 8 13 P 10:22,15:4, 14:3 18:12,18:16, : , 8:5, : , obligations g - 15:6,20:21 intention t7] - 21:18 8:21, 8:24, 9:2, 26:5 5:25 5:25 20:10,23:17, 19:19,19:22 litigation (2] - 9:7, 9:11, 9:14, , obtain [11- 20:10 package (21- 26:9, 28:1 interest [81- 5:24, 3:20,9:8 9:17, 9:18, 9:22, '* obtained (2] - L in 26:3, 26:13 himself [2l - 20:6, 6:5, 9:15, 20:15, LLC [1o] - 1:2, 11:7,14:8, 1:7, 14:8, 19:3 1 a packet (1l - 2:10 20;11 20:18 1:5, 3:17, 3:19, 6:12 3:24 3:23 14:13,15:2, 19:23, 19:14 obtaining (1] - 9:6 PAGE (1] - 2:3 holdings [31- investment (1l - , , , 23:17 8:9 , 20:14,25:3, occur [21- 8:19, page [2l - 7:6, 9:12,9:19,11:2 home [41- 4:11, 24:16 issued [1] - 29:25 , , 24:15 26:5, 26:8 12:16 occurred [1] - 13:6 paid M - 6:1, 6:8, 22:22, 22:24, issues [1] - 29:19 locate (1] -17:13 mortgages [31- 28:6 19:14 8:14 27:8 4 13 h itself (21- 9:2, 11:24 located [1] - 4:11 9:19,9:25,11:5 most pi - 21:6, occurring [1l - , , 25:21, 25:23, : omes pl - hoped [1] - 20:10 M 21:8 13:22 28:2 25 20 ,] - 5:12 Most OF (6] -1:2, 1:8, : parcel [1l - J [ - 22:24 1 k motion [2] - 1:10, 2:3, 31:1, ] par [ ' man (11- 22:18 17:19,17:21 31:2 parks [1] - 22:23 July [21- 11:18, managing [21 - MR [14] - 3:13, offer (15] -15:5, part [11- 26:11 idea (1] - 5:10 11:19 3:24, 23:22 6:16,6:19,18:1, 15:10,15:18, parties [1] - 3:3 identification [1] - June M -11:18, Managing (11- 18:5, 25:9, 16:2, 22:21, partner (z] - 3:24, 6:15 12:5,14:20, 4:2 25:10,25:15, 23:3, 23:7, 3:25 identified [1] - 15:14,16:8, March [13) - 5:14, 29:13,29:17 , 23:11, 23:16, passed (1] - 22:10 24:2 16:17,16:19, 5:20, 5:23, 6:9, 29:21,29:24: 24:5,24:11, pay (201- 8:12, immediately [1] - 16:25,17:3 6:24,11:15, 30:8, 30;9 24:22,25:1, 9:1,11:4,15:7, 10:5 11:16,11:17, 27:22, 28:4 15:20,16:4, impediments (1] - K 11:18,13:12, N offered (5] - 16:6,16:15, 28:9 28:6 27 9 20:24 19:21 16:18 16:16 13:20 , : , , , , , improvements [1] marginally [1] - 21:1, 21:23, 17:12,17:14, - 4:13 Keller [ 27:7 name (11- 24:21 24:4 19:7,19:10, IN (1] -1:2 10:9, 18:7, :7, 10:9, 1 marked (31- 6:14, need [21-18:21, offering (1] - 20:6, 20:11, include [11- 15:6 23:24, 27:13 6:16,17:18 25:25 15:13 20:12,21:23, included (3] - 5:2, Kevin [1l - 22:17 MARKED [1] - 2:9 needs (1] - 14:4 offers (3l - 10:13, 24:3 25:3, 26:3 kind [2] - 6:10, market (41- net [11 - 25:21 10:24, 21:20 payments (11- including (11- 6:20 10:16,18:22, never [3] - 27:4, office (1] - 11:6 5:19 22:1 Kline (3] - 4:11, 19:1,19:4 28:2 offset [11- 9:11 payoff [8] - 5:10, increasing [11- 4:14 marketing [1] - Never [1] - 28:4 once [1l -14:17 5:12,14:7,14:9, 27:21 knowledge [2] - 21:15 NO Iz] -1:4, 2:9 one [3] - 23:1, 21:7, 25:16, Indian pq - 3:17 9:20,17:24 mean (11 -11:23 none [11- 28:5 23:12, 23:19 25:24,26:15 , 4 1 - 1:14 NORTH 1 - 11:21 en 1 o payout [1] - 26:21 4:6 3:22 4:4 : member [6] - 1 ( ] [ ] p , , , 4:17,5:19, 6:4, L 4:2, 7:10, 23:20, Notary [3] - 31:4, opportunity [2] - penalties [1] - 6:11, 7:7, 7:8, 23:22, 24:13 31:14,31:24 12:13,14:1 9:15 7:17,9:23,13:7, last [81- 7:6, Member [1] - 4:2 NOTARY [,] - opposed [1] - pendens [31- 13:16, 17:4, 10:18,10:21, mentioned (1] - 1:12 19:8 17:8,17:14, 17:20,19:22, 18:23 11:24 8:6 notes (1] - 31:18 option [1] -19:8 17:19 21:23, 22:1, , left [1] - 19:25 Michael [1] - 10:8 nothing [11 - 18:1 order [11- 25:19 PENNSYLVANIA 22:16, 22:21, legal M - 9:15, million (11 - 5:1 Nothing (1] - 30:9 original [21- [3] -1:2, 1:15, 23:21,24:24, minimum (11- November [1] - 18:11,18:12 31:2 Archive Reporting & Captioning Service, Inc. 35 • • Pennsylvania [121 PNC's [5] - 7:18, 26:23,26:24 10:7,11:2, 9:10 September (11- - 4:25, 5:5, 5:6, 7:22, 8:13, 9:2, provide [zl - 4:3, 24:16,25:22 required [2] - 31:25 5:7, 8:22, 22:9, 27:3 15:7 realize Ill - 21:10 25:6, 26:14 settle [i] -15:20 24:18, 26:7, point [41- 13:11, provided [41- really [21- 23:13, requires [i] - 29:7 settlement [4] - 26:24, 27:4, 23:14, 25:24, 4:25, 5:13, 30:5 reserved [i1- 3:6 14:19,14:22, 30:6, 31:6 27:20 26:23 reason [i] - 6:4 residential Ill - 15:24,1610 per [41-19:12, possibly [2] - provides [i] - receive [21 - 10:6 settling [11- 20:5, 20:10, 16:9,16:18 28:13 24:11, 25:23 resolved [i1- 17:16 26:15 potential Ill - providing Ill - received [5] - 29:5 seven [2] - 12:7, perceived [21- 16:20 27:6 10:12,10:24, respect [21- 10:4, 12:17 6:1, 10:16 preceded Ill - 8:3 provision [e] - 21:8,21:20, 17:9 several [41- perfectly [21- preferable (1] - 28:10,28:13, 24:5 respective Ill - 11:23,12:2, 21:25, 22:11 28:24 28:14,28:16, recent [2] - 5:12, 3:3 27:3 period [41- 12:10, presumably[l] - 29:6, 29:8 21:6 review (i) -17:21 shop [2l - 16:25, 12:13,12:18, 19:10 provisions (1] - reduced [5] - RL [31-1:2, 3:19, 17:4 27:20 prevent [i1- 12:6 11:7.16:7, 6:11 short (1] -19:17 periods [3] - 17:15 Public [3] - 31:4, 18:25,21:13, Road [3] - 4:12, side [i1- 7:11 12:14,12:21, Prevent [i]- 31:14,31:24 31:15 4:14, 4:15 sign Ill - 23:5 29:1 17:16 PUBLIC Ill - 1:12 referring Ill - Robert [2] - 7:10, signature [4] - permit p] -14:14, prevented [11- Puhl [2l - 2:6, 9:17 9:12 7:7, 7:11, 7:14, 19:13,19:16 13:22 26:2 reflective [i1- role ill - 3:22 13:7 personally [2] - previous [i] - PURL M -1:17, 19:4 roughly Ill - signatures [2] - 22:6, 22:15 27:1 1:18,18:5, 25:9, refused [11- 9:13 12:19 7:8, 7:9 phase [i1- 4:24 previously [i] - 29:17,29:24, regards Ill - 7:22 Rule [2] - 29:20, signed [51- 7:13, Phase Ill - 5:3 15:3 30:8 Reiner [15] - 3:19, 30:1 12:20,15:22, 4:18 iece 2 4:20 14 i purchase [71 - 7:17 8:12 6:12 28:16, 30:2 , p 1- 1 , pr ] - ce [ , , , 6:12 7:3, 8:12, 9:1, 4:20, 7:3, 7:23, 8:25,11:3, S significantly Ill - 12 23 Pion [1] - 10:8 10:15,18:23, 8:12, 9:1, 21:2, 16:21,16:24, : PLACE (1] -1:14 18:25,19:3, 22:21 19:7, 20:24, signing [3] - 3:3, place [2] - 14:3, 19:10, 21:13, purchasing [i] - 23:10,23:14, salability Ill - 13:15,13:17 16:24 21:18, 23:9, 14:2 24:3, 27:10, 17:9 six Ill -20:15 placed [il -17:8 23:10, 25:25 purpose rA - 27:21 sale [s] - 6:21, sixth Ill - 7:6 PLAINTIFF [z] - procedure [i] - 13:15,13:16 REINER [i] - 1:2 8:4, 9:10,10:5, Slightly Ill - 5:16 1:19 1:3 30:6 put 131- 14:2, related Ill - 24:18 13:4,15:1. 15:7, small Ill -11:6 , PLEAS 11] - 1:2 PROCEEDINGS 16:6,18:22 relates [i] - 8:11 19:17, 25:25 sold [9] -10:19, plus [al - 20:5, [11-1:8 putting [i] -18:25 relationship [i] - satisfied [2] - 10:21,11:3, 20:10 26:1 proceedings [i] - 3:22 9:14, 26:21 11:6,12:5, , , 27:1 31:17 Q relative [i] - 6:12 satisfy (sl - 9:2, 14:14,15:4, 14:25,15:1, 12 19 14 26 PNC [sa] - 5:8, proceeds [il - , release M - 8:18 : , : 5:17 6:6 5:13 15:1 8:21, 8:23, 9:7, 17:14,19:23, sole Ill - 23:20 , , , 8:18 8:20 8:1 professionals (1] questioned (1] - 14:13, 26:18, 20:17, 21:3, solely p - 8:9, , , , 9:6 8:22 8:23 - 21:16 22:8 26:22 22:3, 25:2 23:19 , , , 9:13, 9:19, 9:20, properties [5] - questions [41 - released [i1- se [i] -19:12 sometime [11 - 10:3,11:5,11:7, 9:20,11:1, 11:6, 25:9, 26:2, 30:8, 7:19 sealing Ill - 3:4 12:23 14:7,14:9,15:1, 14:24, 21:16 31:12 remain [i] -26:12 SECOND [11 - Sorry [i] - 4:2 15:8,15:21, property [30] - quicker Ill - 29:5 renewed [il - 1:14 cony [a] -15:16, second Ill - 13:6 16:4,16:6, 4:22, 6:1, 6:5, 18:20 20:7, 27:14 16:12,16:16, 6:7, 6:25, 7:4, R REPORTER [i] - seek [i1-16:18 Southampton [i] 16:18,17:12, 8:5, 8:7, 8:24, 1:12 sell [15] - 8:23, - 4:16 17:14,19:8, 9:7, 9:10, 9:18, raise [i] - 11:4 Reporter [41- 8:24,14:25 , speaking [i] - 19:10,19:13, 12:5,14:2,14:4, Randall [1] - 23:9 31:4,31:14 , 17:10,19:1 9, 27:15 19:21,19:23, 14:8,14:14, Randy P] - 19:7 31:16, 31:23 19:22,19:23 , specifics [i] - 20:13, 20:14, 14:25,15:5, 19:20 20:6 reporter [i1 - 20:25, 21:11, 30:3 20:17, 21:3, 15:8,17:1,17:5, , , 20:24 20:11 31:13 21:13, 21:16, spoken Ill -15:3 21:7, 21:10, 17:8,17:9, , , 21:23 24:3 Reporter-Notary 22:11 23:15, SPRINGS [i] -1:5 22:3, 22:5, 22:7, 17:11,17:17, , read Ill - 28:16 [21- 31:4,31:14 25:5, 25:6 Springs [30] - 22:10,25:2, 19:13, 21:2, reading [i] - 3:3 representative Ill seller [i] - 7:11 3:17, 3:23, 4:4, 25:17, 25:23, 23:15 Real [i1 - 10:9 - 6:11 selling (3] - 6:5, 4:6, 4:17,5:19, 26:5, 26:18, proposed [21- real [111- 4:7 request Ill - 9:13,17:17 6:5, 6:11, 7:7, 26:19, 26:21, 9:9,16:11 , 4:10 4:18 6:12 29:10 sense (11 - 16:13 7:8, 7:17,9:23, 26:23, 27:11, protection (2] - , , 9:12 10:5 10:6: - requested (11 separate Ill - 13:7,13:17, 27:16, 27:23 , , 23:17 Archive Reporting & Captioning Service, Inc. 36 G 17-'J 17:4,17:20, 4:3, 25:17, 22:4, 23:14, 15:6,19:23, 19:22,21:24, 26:11, 26:14, 31:15 19:25,20:1, 22:1, 22:16, 31:8, 31:21 underlying [1] - 20:10,21:1, 22:21,23:22, THE [il - 1:2 14:8 22:2, 23:17, 24:24,24:25, therein [il -17:23 undervalued [1] - 25:7, 26:4, 26:8, 25:20,26:4, thereto [1l - 7:16 26:25 26:16,27:5, 26:15,26:22, THRASHER [i] - unrelated [i] - 8:7 27:12,27:25, 27:8 1:17 up M - 6:1, 8:1, 28:1, 28:5, SS [11 - 31:1 threatened [11 - 16:6,19:20, 28:10 standard [q - 6:6 20:7, 21:18, wont' [1] - 7:12 18:15 three [el -12:15, 25:11 worth [1] - 7:25 State p] - 5:1, 12:20,19:25, up-to-date 11l - writing [1] - 24:7 5:5, 5:6, 5:7, 20:1, 20:24, 6:1 written [1] - 23:3 8:22, 22:9, 26:7, 21:11 25:6 26:24,27:4 , , 26:12 V Y statements [i] - Three [1] - 28:1 17:23 thumb [il - 6:20 status [q - 7:18 title [8] -14:2, value [s] -10:17, year m - 5:14, stenographicall 14:5,14:6, 19:4, 20:22, 5:20,6:9.11:12, y [i] - 31:12 17:10,17:11, 20:23,21:3 11:13,11:14, still [al -10:10, 25:19,27:12, valuing [i] - 20:3 11:17 14:12,18:9, 27:23 verification [1] - years [8] - 4:19, 18:17 today [4] - 3:16, 30:2 5:8,10:23, stipulated [1] - 5:11, 5:23, VS [i] - 1:4 18:23,19:4, 22:7, 27:1, 27:3 3:2 STIPULATION [i] 10:10 total [s] - 9:14, w - 3:1 9:17,9:18, STREET [i] - 1:14 12:15,21:18 waived [i] - 3:4 strike [2] -14:17, towards [i] - WARSHAWSKY 17:19 26:20 [iol -1:20, 3:13, studied [q - Township [1] - 6:16,6:19,18:1, 23:15 4:16 25:10,25:15, study [3] -12:17, transaction [2] - 29:13,29:21, 13:25,14:1 8:19,9:9 30:9 subject [l] - 9:8 transactions [i] - Warshawsky [1] - submitted [1] - 11:9 2:5 28:20 TRANSCRIPT [11 West [251- 8:8, subscribed [1] - -1:8 9:21,9:25,10:4, 31:22 transcript [1] - 10:21,15:3, sufficient [a1- 31:20 15:6,19:23, 20:12,22:2, trial [z] - 3:6, 31:7 19:25,20:1, 25:2, 27:22 true [i] - 17:24 20:10,21:1. suit [1] - 29:18 trust [i] - 24:16 22:2, 23:17, supply [1] - 27:24 trying [11 - 20:19 25:7, 26:4, 26:8, sworn [2] - 3:9, Two p] -11:6 26:16,27:5, 31:11 two [a] - 7:8, 27:12,27:25, 10:23 18:23 28:1 28:5 T , , 19:4,24:12, , , 28:10 26:11 whereof [i] - typewriting [q - 31:21 TAKEN [:] -1:11 31:15 Williams [61- tax [[] - 5:25 typical [t1- 14:3 10:8,10:9,18:7, Tax [1] - 6:2 23:25 27:13 taxes [3] - 6:2, V , willing [5] - 8:12, 25:18, 25:22 9:1, 17:14, term [a] - 18:11, 21:11, 24:3 18:12,18:14, under [ia] - 7:19, witness [2] - 3:8, 18:17 11:22,11:25, 31:11 terms m - 15:13 12:5,12:6,12:9, Wood [25] - 8:9 testified [31- 3:9 14:17, 14:18, , , 7:1, 25:16 15:14, 15:19, 9:21, 9:25, 10:4, testimony [6] - 16:10, 20:12, 10:21, 15:3, Archive Reporting & Captioning Service, Inc. RL REINER, LLC, Plaintiff . V. INDIAN SPRINGS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO: 10-3046 CIVIL ACTION - EQUITY ORDER AND NOW this day of , 2010, upon consideration of Defendant, Indian Springs Associates,. LLC's Motion to Strike Lis Pendens and any response thereto, it is hereby ORDERED that said Motion is granted and the Lis Pendens indexed against Defendant's Real Property at Docket 10-3046 is stricken. 0 BY THE COURT: J. • RL REINER, LLC, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. CASE NO: 10-3046 INDIAN SPRINGS ASSOCIATES, LLC, CIVIL ACTION - EQUITY Defendant RULE TO SHOW CAUSE A Rule is hereby issued upon Plaintiff to show why the relief requested in Defendant's Motion to Strike Lis Pendens should not be granted. , Rule returnable in days'on , 2010, in Courtroom, • of the Cumberland County Courthouse, at m. J. 0 RL REINER, LLC, Plaintiff V. INDIAN SPRINGS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO: 10-3046 ? 3 ? CIVIL ACTION - EQUITY `r r? DEFENDANT'S MOTION TO STRIKE LIS PENDENS = °_ c.0 AND NOW, comes Defendant, Indian Springs Associates, LLC, by and through their -n rnr -+a o -n °rn counsel, Cunningham & Chernicoff, P.C., and file its Motion to Strike Lis Pendens as follows: 1. On or about May 10, 2010, Plaintiff, RL Reiner, LLC, ("Plaintiff') initiated the instant action by filing a Writ of Summons with this Court (the "Writ") for an action in equity. A true and correct copy of the Writ is attached hereto as Exhibit "A" and is incorporated herein by reference. 2. Also on May 10, 2010, Plaintiff filed a Praecipe for Lis Pendens with this Court to the above captioned docket number ("Lis Pendens"). A true and correct copy of the Lis Pendens is attached hereto as Exhibit "B" and is incorporated herein by reference. 3. The Lis Pendens requests the Prothonotary to index as a Lis Pendens "against the real property located in Southampton Township, Cumberland County, Pennsylvania, containing 39.8009 acres, fronting on Kline Road, as shown on a Plan of Lots in Plan Book 12 at Page 122, less, however, a tract containing 0.7797 acre and being designated as Lot No. 159 as shown on a Plan of Lots recorded in 0 Plan Book 85 at Page 136, more fully set forth in the Deed recorded in Cumberland County Record Book 265 at Page 3355" (the "Real Property"). 4. The purpose of a Lis Pendens is merely to give notice to a third person that real estate is subject to litigation and any interest which they may acquire in the real estate will be subject to the result of the action. Psaki v. Ferrari . 377 Pa. Super. 1, 3, 546 A.2d 1127, 1128 (1988) citin Dice v. Bender, 383 Pa. 94, 97, 117 A.2d 725,726-727 (1955). 5. "Lis Pendens has no application except in cases involving the adjudication of rights in specific property." Id. ci ' Shannon v Barrett , 65 Pa.D. & C. 2d 446, 448-449 (Del. Co. 1974); see also Dove 's Anneal, 97 Pa. 153 (1881). 6. "A party is not entitled to have his case indexed as Lis Pendens unless title to real estate is involved in the litigation." Id. 7. This case arises out of a dispute between the parties relative to a real estate Agreement of Sale ("Agreement of Sale") dated March 9, 2010, a true and correct copy of which is attached hereto as Exhibit "C" and is incorporated herein by reference. 8. The Agreement of Sale contains an Arbitration Provision at Paragraph 26 which states as follows: "The Seller and Buyer agree that disputes relating to this Agreement shall be submitted to nonbinding arbitration in Adams County, Pennsylvania. Each party shall select an arbitrator and the two arbitrators so selected shall select a third arbitrator between them, the controversy being heard by the panel of three arbitrators thus selected. The parties shall bear the cost of the arbitration equally between them. An appeal of the decision of the panel of arbitrators shall be filed in the Court of Common Pleas of Adams County, Pennsylvania." 0 2 9. The parties have not submitted this dispute to non-binding arbitration. 10. The parties agreed that the Court of Common Pleas of Adams County and not Cumberland County, Pennsylvania shall be the forum in which the parties may litigate this dispute (on appeal) but only after a decision in arbitration has been rendered. 11. Defendant is unable to convey clear title to the Real Property due to a mortgage in favor of PNC Bank in excess of the Purchase Price under the Agreement of Sale which PNC Bank will not release since certain conditions have not been met (and cannot be met within a reasonable time) (the "Defects of Title"). As such, the Agreement of Sale, in Paragraph 15, provides as an exclusive remedy for the Buyer to recover all sums paid by the Buyer/Plaintiff to the Seller/Defendant • thereunder. 12. The parties also entered into a Addendum to the Agreement of Sale dated May 27, 2010, a copy of which is attached hereto as Exhibit "D" and is incorporated herein by reference, which provides, inter alia, for the Buyer (Plaintiff) to grant extensions [to give Seller/Defendant time to remedy the Defects of Title] or shall cause the Lis Pendens to be stricken at Buyer's expense. 13. The Plaintiff, as Buyer under the Agreement of Sale, is unwilling to waive the Defects of Title and Seller/Defendant is unable to carry out the Agreement of Sale because of the Defects in Title. 14. Seller is not obligated to accept any extensions of time under the Addendum and more than four (4) months have passed since the Addendum was executed and 0 nearly six (6) months have passed since the Agreement of Sale was executed. 0 15. Seller/Defendant has had a reasonable time (as required under the Agreement of Sale) to correct the Defects of Title at its expense, which has long since passed. 16. Defendant has also filed a Praecipe to Enter Rule to File Complaint and Rule to File upon Plaintiff in the instant matter, as the issue of arbitration and the availability of an agreement for alternate dispute resolution can only be raised by a Preliminary Objection to a Complaint. The Defendant will also assert, in a Preliminary Objection, a lack of jurisdiction over the subject matter of the action due to the aforementioned Arbitration Clause and agreement to proceed on appeal to Adams County (collectively, the "Preliminary Objections"). 17. Defendant's counsel advised Plaintiffs counsel by electronic mail message dated • September 14, 2010 to voluntarily strike the Lis Pendens as a demand pursuant to Pa. R.C.P. § 1023, which has been refused. 18. It would be inequitable for the Defendant to suffer the Lis Pendens lien under the circumstances set forth above. 19. Since the instant action cannot involve the adjudication of rights in any Real Property, this Court should strike the Lis Pendens indexed against the Real Property. 20. The continuation of the Lis Pendens indexed against the Real Property is inequitable as it harshly and unjustly prejudices Defendant. 21. Defendant has sought Plaintiffs voluntary withdrawal of the Lis Pendens, to which Plaintiff refused. 0 4 WHEREFORE, Defendant, Indian Springs Associates, LLC, hereby respectfully request that this Honorable Court strike Plaintiffs, RL Reiner, LLC, Lis Pendens that was indexed with this Court on May 10, 2010 and further grant Defendant such other relief as is just and proper, including, but not limited to, sanctions under Pa. R. C. P.§1023. Respectfully submitted, & CHERNICOFF, P.C. Equire : 58799 P SupremFeIDN0s North treet P.O. Box 60457 Harrisburg, PA 17106-0457 Date: September 28, 2010 Telephone: (717) 238-6570 is EXHIBI 'A' 0 1Q10 hit Y 10 Ali 11: ; 7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PhMill(s) & Addrages) . RL REINER, LLC P.O. Box 34682 Bethesda, MD 20827-0682 ; Can No. I O " 3014 IO Cm Two VS. Civil Action Equity Dehodast(s) dt Addrea(es) . INDIAN SPRINGS ASSOC., LLC 6046 Edwards Drive Mechanicsburg, PA 17050 , PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in the above can fiO.S?lti Writ of Summons shall be issued and forwarded to -M wim Date : A=J 1 29- 2010 -- Signature ttotney Print Name: Edward G. Puhl Address: 220 Baltimore Street ,attyshi=g- PA 17325 Tdcphone /{: (717) 334-2159 Supeme Court ID Numbs: 55709 • • • 0 • WRIT OF SUMMONS TO: INDIAN SPRINGS ASSOCIATES LLC MENCED AN YOU ARE NOTIFIED THAT THE ABOVE-NAMED P ACTION AGAINST YOU. thonotary/Clarl?, Civil Division Date. -Ibpl? by Deputy G) sft.00 Pp AT74 co? ItW1 I?4 r: • EXHIBIT'B' 0 IF T1J'F c?.-??? ,Tf1?Y 2010HAY 10 ANN: ;;-1 IN THE COURT OF COMMON PLEAS OF i CUMBERLAND COUNTY, PENNSYL4M4k-:..; ;0UNrY CIVIL ACTION - EQUITY i RL REINER, LLC, and/or its assigns, No. 10 -3ck(o a Maryland limited liability company, Plaintiff, i j V. 1 . i INDIAN SPRINGS ASSOCIATES, LLC, : A Pennsylvania limited liability company, . i Defendant. PRAECIPE FOR LIA POW-ENS TO THE PROTHONOTARY: Please index the above-captioned action in equity as a lis pendens against the real property located in Southampton Township, Cumberland County, Pennsylvania, containing 39.8009 acres, fronting on Kline Road, as shown on a plan of lots in Plan Book 12 at page 122, LESS, HOWEVER, a tract containing 0.7797 acre and being designated as Lot No. 159 as shown on a plan of lots recorded in Plan Book 85 at page 136, more fully set forth in the deed recorded in Cumberland County Record Book 265 at page 3355. I hereby certify that this action affects title to or other interests in the above-described i+ '.I real property. I; PURL, EASTMAN & THRASHER Dated: April 29, 2010 By: i? Edward G. Puhl Attorney ID No. 55709 Attorney for Plaintiff 220 Baltimore Street 414. Do DO ? 'nq I Gettysburg, PA 17325 ett I I zoo (717) 3342159 2* • EXHIBIT `C' P-,? • A. J • REAL ESTATE AGREEMENT OF SALE TIIIS AGREEMENT, made this day of , 2010, by and between INDIAN SPRINGS ASSOCIATES, LLC, a Pennsylvania limited liability company with registered offices at 6046 Edwards Drive, Mechanicsburg, Pennsylvania 17050, ("Seller"), and RL REINER, LLC, and/or its assigns, a Maryland limited liability company with a mailing address of P.O. Box 34682, Bethesda, Maryland 20827-0682 ("Buyer"). WITNESSETH: 1. Property. The Seller, in consideration of the covenants and agreements hereinafter contained, on the part of the Buyer to be kept and performed, does hereby agree to sell and convey to the Buyer ALL that certain real property and all improvements thereon situate, lying and being in the Southampton Township, Cumberland County, Pennsylvania, as more • particularly described on Exhibit "A" attached hereto and by reference made a part hereof, commonly known as Indian Springs Mobile Home Park in Shippensburg, Pennsylvania, containing approximately 39.8 acres, referred to as the "Property." 2. Purchase Price. The purchase price is Six Hundred Fifty Thousand ($650,000.00) Dollars, payable as follows: upon ratification of this agreement, Buyer will execute a Judgment Note in favor of the Seller in the amount of Fifty Thousand ($50,000.00) Dollars, to be held in escrow by Puhl, Eastman & Thrasher, Buyer's counsel, during the study period referred to below; upon the expiration of the study period referred to below, or any extensions thereof, Buyer will redeem the Judgment Note by depositing a sum equal to the amount of the note in cash, to be held in escrow by Puhl, Eastman & Thrasher in an interest bearing account pending final settlement. 3. Tests and Study Period Buyer shall have an initial period of fourteen (14) days from the date of execution of this agreement in which to conduct, at Buyer's expense, tests and studies of the Property and the improvements thereon, and to otherwise study the economic feasibility of developing the Property. During this 14-day period, Buyer may, in its sole discretion, cancel this agreement by written notice sent to the Seller and Buyer's escrow agent, whereupon Buyer's escrow agent shall promptly return the $50,000.00 Judgment Note Rw.,,,,,2010 Page 1 of 7 . F • to Buyer. if Buyer requires additional time in which to perform tests and conduct studies, Buyer may extend the study period for a second 14-day period by increasing the amount of the Judgment Note to $60,000.00. If Buyer requires a third and final 14-day extension, Buyer may extend the study period by increasing the amount of the Judgment Note to $70,000.00. If Buyer elects not to cancel this agreement during the initial 14-day study period or • any extensions thereof, at the expiration of the study period, Buyer shall promptly redeem the Judgment Note by replacing it with cash, which will be held in escrow by Buyer's counsel in an interest-bearing account and applied to the purchase price at final settlement. Buyer shall have reasonable access to the Property in order to conduct such necessary tests and studies, and the Seller shall cooperate with the Buyer in conducting such necessary tests and studies and shall address questions raised by the Buyer. Buyer shall indemnify and hold harmless Seller against any liability, loss, expense or damages Seller may suffer by reason of injury to persons or damage to the Property arising from conducting of such tests and studies. All study work will be done confidentially, to the extent possible. Buyer shall not disclose any study information to the public unless agreed upon by Seiler. 4. Plans, Surveys, Reports Upon ratification of this agreement, Seller shall deliver to Buyer copies of all test borings, surveys, architectural and engineering data, title policies, appraisal reports, tenant leases, rules and regulations, rent roll, environmental studies and reports, and any other information concerning the Property and the professionals employed by Sellers that may be reasonably requested by Buyer. 5. Time and Place of Final Settlement. Final settlement shall be held within seven (7) days following the expiration of the study period and any extension(s) thereof. Settlement will be held at the office of Buyer's counsel, Puhl, Eastman & Thrasher, at 220 Baltimore Street, Gettysburg, Pennsylvania. 6. Deed. Upon payment of the entire sale price the Seller will make, execute, • acknowledge and deliver to the Buyer a special warranty deed conveying the Property in fee simple, with good and marketable title, insurable at regular rates by a reputable title insurance company, free from all liens and encumbrances, but subject to any existing casements, rights of way, restrictions and/or covenants which may affect the same. Rev. 2/1712010 Page 2of7 J • 7. Possession. Possession of the Property shall be delivered to Buyer on the date of final settlement, subject only to existing tenancies. 8. Review by Counsel For a period of seven (7) days following the execution of this Agreement it shall be subject to the review and approval of counsel for each party. 9. Realty Transfer Taxes The Seller and the Buyer shall each pay one-half of the realty transfer taxes required at the time of the recording of the deed. 10. Real Estate Taxes The real estate taxes assessed against the Property shall be prorated on a fiscal year basis between the Seller and the Buyer as of the date of final settlement. It. Leases, Rents, Security Deposits. Seller shall assign all leases and security deposits to Buyer, and all rents shall be prorated between Seller and Buyer as of the date of final settlement. 12. Mobile Homes. Seller shall provide title certificates for all mobile homes owned by the Seller and conveying with the Property, In addition, Seller shall provide information about the ownership and occupancy of, and security interests attached to, any mobile homes which do not convey with the Property but which will remain on the premises after final settlement. 13. All Creditors Paid. Seller will supply to Buyer a list of all of Seller's creditors as of the date hereof and the amounts owed to each. Seller and its members warrant that all liabilities or obligations of Seller whatsoever, either accrued prior to closing, contingent or otherwise. will be paid and satisfied in full on or before Closing. To assure and simplify the procedure for the payment of any trade accounts payable that may be uncertain as of closing, Edward G. Puhl, Esq., and Puhl, Eastman & Thrasher shall retain from the consideration paid hereunder the sum of Ten Thousand ($10,000.00) Dollars as escrow agent for a period of forty-five (45) days after closing. Said sum shall be used to pay any such payables (by disbursement of the necessary amount to Buyer to cover checks issued to the appropriate vendor for a like amount) and any balance remaining at the end of the thirty-day period shall be disbursed to Seller upon written approval of Buyer. This procedure is intended to be a supplement to and not a limitation of the obligation of Seller to be responsible for obligations or liabilities of Indian Springs Associates, LLC accruing prior to the closing. Rev. 2/17/2010 Page 3 of 7 • 14. Authorization to Release Information. By accepting this offer and signing below, Indian Springs Associates, LLC, hereby authorizes PNC Bank, N.A., as successor in interest to Pennsylvania State Bank, to release information to Buyer's counsel, Puhl, Eastman & Thrasher, of 220 Baltimore Street, Gettysburg, PA 17325, related to the mortgage given by Indian Springs Associates, LLC to Pennsylvania State Bank, dated December 28, 2000, in the original amount of $1,130,000, Loan No. 15. Defects in Title. Should the Seller be unable to carry out this agreement by reason of a valid or legal defect in title which the Buyer is unwilling to waive, all sums paid hereunder by the Buyer to the Seller shall be returned to the Buyer, who shall thereupon surrender possession of the real estate to the Seller (if the Buyer has received possession thereof), without reimbursement; provided however, that if any such valid or legal defect in title arises, the Seller shall have a reasonable time in which to endeavor to correct the same at the Seller's expense. 16. Owner's Affidavit. At final settlement, Seller shall execute an Owner's Affidavit substantially in the form attached hereto as Exhibit "B," representing and warranting, among other things, that Seller has not dumped or caused to be dumped any hazardous or toxic waste on the Property and Seller is not aware of the existence of any hazardous or toxic waste thereon. 17. Insurance. From the date of this agreement until the date of the delivery of the deed, the Seller agrees to continue in effect the fire and/or casualty insurance now carried by the Seller on the building or buildings on the premises covered by this agreement. In consideration thereof, this agreement will not be canceled or affected by reason of damage or destruction due to fire or other casualty. The net proceeds of any insurance collected by the Seller prior to the date of final settlement will be paid or credited to Buyer at settlement, and all unpaid claims and rights in connection with losses under any policies will be assigned to Buyer at settlement. The amount of such unpaid claims will not, however, be credited on account of the sale price. The Buyer may, at Buyer's option, insure Buyer's interest in said premises. 18. Buyer's Default. Should Buyer default on this agreement, all sums deposited in escrow shall be forfeited and retained by the Seller as liquidated damages, and the parties Rev 111#2010 Page 4 of 7 • shall have no further liability with respect to each other and to the Property. 19. Time of the Essence. Time is of the essence of this agreement and all of its terms and conditions. The Buyer agrees with the Seller to purchase said tract of land and to pay the aforesaid sale price in the manner and at the times specified in this agreement. 20. Notices. All notices, demands, or communications permitted or required to be given hereunder shall be in writing and sent via USPS certified mail, postage prepaid, return receipt requested or delivered by recognized overnight commercial carrier, shipping prepaid. Such notices, if properly delivered as aforesaid, shall be deemed given on the date of actual receipt. Notices shall be addressed to the parties at the addresses shown below or to such other address as any party shall direct in accordance with the provisions hereof: If to Indian Springs Associates, LLC: Indian Springs Associates, LLC 6046 Edwards Drive Mechanicsburg, PA 17050 • • With copy to: Indian Springs Associates, I. LC c/o R&D Development 242 West Chocolate Ave. Hershey, PA 17033 With courtesy email copies to: If to RL Reiner, LLC: With copy to: With courtesy email copies to be r6s?' RL Reiner, LLC P.O. Box 34682 Bethesda, MD 20827-0682 Edward G. Puhl, Esquire 220 Baltimore Street Gettysburg, PA 17325 edward.puh l@comcast. net Rpsc5@aol.com 21. Entire Agreement. This agreement constitutes the entire agreement between the parties and it supersedes all prior discussions, understandings or agreements between the parties. 22. Brokerage. Neither the Seller nor the Buyer is represented by a real estate broker Rev. 2117,2010 Page 5 of 7 J 0 • in this transaction. 23. Assignment. Buyer may transfer or assign this Agreement to any entity in which Randall L. Reiner has a controlling interest without the written consent of Seller. 24. Binding Effect. The undersigned covenant and agree that this agreement shall be legally binding upon and inure to the benefit of the parties hereto and their respective personal representatives, heirs, successors and assigns. 25. Offer Shall Lapse. If not accepted by Seller in a writing delivered to Buyer within seven (7) days from the date the purchase offer was made by Buyer (which date appears beneath Buyer's signature below), this offer shall lapse 26. Arbitration. The Seller and Buyer agree that disputes relating to this Agreement shall be submitted to nonbinding arbitration in Adams County, Pennsylvania. Each party shall select an arbitrator and the two arbitrators so selected shall select a third arbitrator between them, the controversy being heard by the panel of three arbitrators thus selected. The parties shall bear the cost of the arbitration equally between them. An appeal of the decision of the panel of arbitrators shall be filed in the Court of Common Pleas of Adams County, Pennsylvania. YIN WITNESS WHEREOF, the undersigned parties, intending to be legally bound hereby, have hereunto set their hands and seals the day and year first above written, this agreement being executed in two (2) counterparts, each of which is hereby declared to be an original. Dated: SELLER: 'ljvj'Jr/?13 INDIAN SPRINGS ASSOCIATES, LLC: -?- , Member --? Dated:K"I`l l? •o Page 6 of 7 ??? ? ?ml? e?dh dF ...?mah s 4 6? W7 W ?"'wl' Member E C E Attest: Dated: 2- - Rev. 2/17;2010 BUYER: RL REINER, LLC Randall L. Rcincr, Managcr Page 7 of 7 OWNER'S AFFIDAVIT STATE OF PENNSYLVANIA, COUNTY OF On this, the _T- day of 2010, before me, the undersigned officer, a Notary Public in and for said state and county, personally appeared who having been by me duly sworn according to law, depose and say: 1. That they are the owners of the premises situate in County, known as , Pennsylvania, and arc the same as named as grantees in the deed recorded in the office of the Recorder of Deeds of County, Pennsylvania, in Record Book at page 2. That no alterations, additions or repairs have been made to said premises, nor are there any appliances or fixtures attached to said premises which have not been paid for in full; and that there are no outstanding or disputed claims for any such work or item; 3. That there are no liens or encumbrances (mortgages, deeds of trust, judgments, tax liens, mechanics' liens, etc.) known to the undersigned, which are not being properly provided for in this transaction; 4. That there has been no work done, or notice received that work is to be done, by the municipality (city, borough or township) or at its direction, in connection with the installation of sewer or water or for improvements such as paving or repaving of streets or alleys, or the installation of curbs or sidewalks; 5. That no notice has been served by any governmental authority for the removal or abatement of any nuisance, for the violation of any zoning regulation or concerning the condemnation of any portion of said premises; 6. That there has been no violation of any restrictions affecting the premises; 7. That there are no disputes with any adjoining property owners as to the location of property lines and no improvements encroach onto adjoining property; 8. That there are no purchase money obligations being created in this transfer; 9. That there are no unrecorded leases or agreements affecting the premises in question; 10. That the present transaction is not made for the purpose of hindering, delaying or defrauding any creditors of said owners and does not come within the provisions of the Bankruptcy or Insolvency Acts (or any amendments thereof); IRcv. LIO) Exhibit "B" 0 11. That all real estate taxes assessed against said premises have been paid in full to and including the 2010 county and township taxes and the 2009/10 school taxes; 12. That no notices of any interim tax assessments nor bills for same have been received; 13'. That said afftants are not aware of any radon gas affecting the premises; 14. That said affants have not dumped or caused to be dumped any hazardous or toxic waste on the property and affants are not aware of the existence of any hazardous or toxic waste thereon; 15. That there are no federal or state taxes due and owing that could become liens against said premises; 16. That no portion of this property is a "Wetland," as defined in 33 C.F.R. §328.3(b) or in 25 Pa. Code § 105.1. That with respect to this property or any portion thereof, the said owners have not violated, have not caused to be violated and have no notice or knowledge of any violations of "The Clean Water Act of 1977," as amended (33 U.S.C. §1251 ct scq.), the Pennsylvania "Darn Safety and Encroachments Act," as amended (32 P. S. §693.1 et seq.) and the Pennsylvania "Clean Streams Law," as amended (35 P. S. §691.1 et seq.). That the said owners have not received any notice or notices from the United States Environmental Protection Agency, the United States Army Corps of Engineers, the Pennsylvania Department of Environmental Resources or any other State or Federal agency which state that any further development or improvement would be restricted or prohibited with respect to this property; 17. That no overdue support obligations exist in this or any other state against either affiant; 18. That no support orders are entered against either affiant; 19. That any power of attorney used in connection with the within conveyance has not been revoked or terminated by death of the principal; and 20. That this affidavit is made for information and verification purposes and affiants aver that the foregoing statements are true and correct to the best of their knowledge, information and belief. Sworn to and subscribed before me the day and year aforesaid. Notary Public My commission expires: (Rev. 2110) Exhibit "13" C 0 EXHIB T `D' • V -i' • ADDENDUM TO REAL ESTATE AGREEMENT OF SALE /1 /h This Addendum, made the day of May, 2010, by and between INDIAN SPRINGS ASSOCIATES, LLC, a Pennsylvania Limited Liability Company with registered offices at 6046 Edwards Drive, Mechanicsburg, PA 17050 ("Seller'), and RL REINER, LLC, and/or its assigns, a Maryland limited liability company with a mailing address of P.O. Box 34682, Bethesda, MD 20827 ("Buyer"). WHEREAS, Seller and Buyer are parties to a Real Estate Agreement of Sale executed by Seller on March 9, 2010 (the "Agreement"), providing for Buyer's purchase from Seller of four parcels of land in Southampton Township, Cumberland County, Pennsylvania containing approximately 39.8 acres and known as Indian Springs Mobile Home Park (the "Property'l; and WHEREAS, the Agreement provides for Buyer to have a study period to conduct tests and studies of the Properties and to determine the feasibility of developing the Property; and WHEREAS, Buyer and Seller agreed that final settlement on the property would take place within seven (7) days following expiration of the study period on April 19, 2010; and WHEREAS, the Agreement requires Seller to deliver free and clear title to the Property at settlement; and WHEREAS, Seller is unable to deliver fte and clear title to Buyer until Seller receives the net proceeds from the sale of the other parcels of real estate also owned by Seller, so that the first secured creditor, PNC Bank, may be satisfied and their lien(s) of record removed. NOW, THEREFORE, the parties, intending to be legally bound, hereby agree as follows: I . Recitals. The foregoing recitals are incorporated herein by reference. 2. Settlement Date. Seller and Buyer agree to extend the date of settlement to on or before June 18, 2010 (the "Settlement Date"). 3. Free and Clear Title. In the event Seller is unable to deliver free and clear title by the Settlement Date, Buyer shall grant further extension(s) in order to give Seller time to remedy the problem, or Buyer shall cause the Lis Pendens, filed to No. 10-4036 in the Court of Common Pleas of Cumberland County, Pennsylvania., to be stricken at Buyer's expense. • J04 C A • 4. No Fia•ther Changes. The Agreement, as hereby amended, shall continue in full force and effect. 5. This Agreement may be executed in counterparts. EXECUTED as of the day and year first above written. Attest: SELLER: INDIAN SPRINGS ASSOCIATES, LLC: , Member Dated: a 2010 By (SEA) , Member Dated: .2010 BUYER: 0 Attest: RL REINER, LLC B WW- -- (SE 1L) 1. Y Randall L. Reiner, Manager Dated: 2010 • CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant with the law firm Cunningham & Chernicoff, P.C., hereby certify that a true and correct copy of the Motion to Strike Lis Pendens was served by first-class U.S. Mail, postage prepaid, to: Edward G. Puhl, Esquire 220 Baltimore Street Gettysburg, PA 17325 • Date: September 28, 2010 By CUNNINGHAM & CHERNICOFF, P.C. nine Ametrano North Second Street sbura, PA 17110 FAHoin"JW\DOCSVNSrM DEVELOPWNTJudien SprinpNotion to Strike Lis Pendens.092410.wpd • t CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant for the law office of Cunningham & Chernicoff, P.C., do hereby certify that a true and correct copy of the PRAECIPE TO FILE DEPOSITION TRANSCRIPT OF RECORD PURSUANT TO PA.R.C.P. 206.6 in the above-captioned matter was sent first class U.S. Mail, First Class Mail, postage prepaid on this date, to the following: Edward G. Puhl, Esquire 220 Baltimore Street Gettysburg, PA 17325 CUNNINGHAM & CHERNICOFF, P.C., ', " ) ahuu" Date: December 9, 2010 B Julieanne Ametrano U2320 North Second Street Harrisburg, PA 17110 Telephone: (717)238-6570 F:\Home\BJW\DOCSUNSITE DEVELOPMENIMndian Springs\RL REINER\Praecipe to File Deposition of Record.wpd RL REINER, LLC, Plaintiff v. INDIAN SPRINGS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION NO. 10-3046 CIVIL TERM * J x? DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE OLER and GUIDO, JJ. ORDER OF COURT , 77 R: rq -,, r-- <D a Lry AND NOW, this 4th day of January, 2011, upon consideration of Defendant's Preliminary Objections Pursuant to [Pa.] R.C.P. 1028(a)(1) and [Pa.] R.C.P. 1028(a)(6), following oral argument held on December 15, 2010, and for the reasons stated in the accompanying opinion, (a) Defendant's preliminary objections as they relate to venue are sustained to the extent that venue is transferred to the Court of Common Pleas of Adams County, Pennsylvania, Plaintiff to coordinate the removal and transfer of the record with the counties' prothonotaries and pay all costs and fees associated therewith, and (b) Defendant's preliminary objections as they relate to an agreement for alternative dispute resolution are deferred for disposition to the Court of Common Pleas of Adams County. BY THE COURT J. Edward G. Puhl, Esq. 220 Baltimore Street Gettysburg, PA 17325 Attorney for Plaintiff AV Bruce J. Warshawsky, Esq. Nicholas A. Fanelli, Esq. 2320 North Second Street Harrisburg, PA 17110 Attorneys for Defendant RL REINER, LLC, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION INDIAN SPRINGS ASSOCIATES, LLC, Defendant : NO. 10-3046 CIVIL TERM DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., January 4, 2011. In this civil case, Plaintiff has filed a complaint against Defendant arising out of an agreement of sale wherein Defendant agreed to sell to Plaintiff a certain mobile home park in Southampton Township, Cumberland County, Pennsylvania.' For disposition at this time are preliminary objections filed by Defendant to the complaint, seeking a dismissal of the action on the ground that the agreement contained a paragraph providing (a) for non-binding arbitration to be held in Adams County, Pennsylvania, with respect to disputes relating to the agreement and (b) for venue to lie in the Court of Common Pleas of Adams County with respect to a judicial resolution of such disputes.2 Argument on Defendant's preliminary objections was held on December 15, 2010. For the reasons stated in this opinion, the preliminary objections will be (a) granted as they relate to venue, to the extent that venue will be transferred to the Court of Common Pleas of Adams County, and (b) deferred for disposition to the Adams County Court as they relate to an agreement for alternative dispute resolution. 1 Plaintiff's Complaint, filed October 15, 2010 (hereinafter Plaintiff's Complaint). 2 Defendant's Preliminary Objections Pursuant to [Pa.] R.C.P. 1028(a)(1) and [Pa.] R.C.P. 1028(a)(6), filed October 20, 2010 (hereinafter Defendant's Preliminary Objections).. STATEMENT OF FACTS In pertinent part, the allegations of Plaintiffs complaint may be summarized as follows: On March 9, 2010, Plaintiff RL Reiner, LLC, a limited liability company with a mailing address in Bethesda, Maryland, entered into a real estate agreement of sale as buyer with Defendant Indian Springs Mobile Home Park, LLC, a limited liability company having offices in Mechanicsburg, Cumberland County, Pennsylvania, as seller for the conveyance of a mobile home park in Southampton Township, Cumberland County, Pennsylvania, known as Indian Springs Mobile Home Park.3 The agreement of sale included the following paragraph: 26. Arbitration. The Seller and Buyer agree that disputes relating to this Agreement shall be submitted to nonbinding arbitration in Adams County, Pennsylvania. Each party shall select an arbitrator and the two arbitrators so selected shall select a third arbitrator between them, the controversy being heard by the panel of three arbitrators thus selected. The parties shall bear the cost of the arbitration equally between them. An appeal of the decision of the panel of arbitrators shall be filed in the Court of Common Pleas of Adams County, Pennsylvania.4 Defendant has thus far been unable or unwilling to convey the property in accordance with the agreement,5 notwithstanding an extension of the settlement date,6 and is in breach of the agreement.7 Defendant has filed preliminary objections to Plaintiff's complaint based on the quoted language in the agreement, requesting a dismissal of the complaint pursuant to Pennsylvania Rules of Civil Procedure 1028(a)(1) (improper venue) and 1028(a)(6) (agreement for alternative dispute resolution).8 3 Plaintiff's Complaint, ¶5. 4 Real Estate Agreement of Sale, ¶26, affixed to Plaintiff s Complaint. 5 See Plaintiff's Complaint, ¶¶8-33. 6 Addendum to Real Estate Agreement of Sale, affixed to Plaintiff s Complaint Plaintiff's Complaint, ¶31. s Defendant's Preliminary Objections. 2 DISCUSSION Under Pennsylvania Rule of Civil Procedure 1028(a), it is provided that preliminary objections may be filed on grounds of "improper venue"9 and an "agreement for alternative dispute resolution,"10 inter alia. It is well settled that, in general, parties to a contract may agree upon a judicial venue for disposition of disputes arising out of the contract, and that courts will acquiesce in their choice of forum. The modern and correct rule is that, while private parties may not by contract prevent a court from asserting its jurisdiction or change the rules of venue, nevertheless, a court in which venue is proper and which has jurisdiction should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation.... Such an agreement is unreasonable only where its enforcement would, under all circumstances existing at the time of litigation, seriously impair plaintiff's ability to pursue his cause of action. Mere inconvenience or additional expense is not the test of unreasonableness since it may be assumed that the plaintiff received under the contract consideration for these things. If the agreed upon forum is available to plaintiff and said forum can do substantial justice to the cause of action then plaintiff should be bound by his agreement.... Central Contracting Co. v. C.E. Youngdahl & Co., Inc., 418 Pa. 122, 133-34, 209 A.2d 810, 816 (1965) (citations omitted). If a preliminary objection to venue is sustained and there is a county of proper venue within Pennsylvania, the action is not to be dismissed but instead is to be transferred to the appropriate court of that county. The costs and fees related to removal and transfer of the record are to be paid by the plaintiff. Pa. R.C.P. 1006(e); See Searles v. Estrada, 2004 PA Super 265, 856 A.2d 85. Based upon the foregoing, the following order will be entered: ORDER OF COURT AND NOW, this 40' day of January, 2011, upon consideration of Defendant's Preliminary Objections Pursuant to [Pa.] R.C.P. 1028(a)(1) and [Pa.] R.C.P. 1028(a)(6), following oral argument held on December 15, 2010, and for the reasons stated in the 9 Pa. R.C.P. 1028(a)(1). 10 Pa. R.C.P. 1028(a)(6). 3 accompanying opinion, (a) Defendant's preliminary objections as they relate to venue are sustained to the extent that venue is transferred to the Court of Common Pleas of Adams County, Pennsylvania, Plaintiff to coordinate the removal and transfer of the record with the counties' prothonotaries and pay all costs and fees associated therewith, and (b) Defendant's preliminary objections as they relate to an agreement for alternative dispute resolution are deferred for disposition to the Court of Common Pleas of Adams County. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Edward G. Puhl, Esq. 220 Baltimore Street Gettysburg, PA 17325 Attorney for Plaintiff Bruce J. Warshawsky, Esq. Nicholas A. Fanelli, Esq. 2320 North Second Street Harrisburg, PA 17110 Attorneys for Defendant 4 RL REINER, LLC, Plaintiff V. INDIAN SPRINGS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 10-3046 CIVIL TERM IN RE: DEFENDANT'S MOTION TO STRIKE LIS PENDENS ORDER OF COURT AND NOW, this 4`h day of February, 2011, upon consideration of Defendant's Motion To Strike Lis Pendens, and oral argument held on January 10, 2011, and the underlying case on which Defendant's lis pendens in this county is premised having been transferred to the Court of Common Pleas of Adams County, Pennsylvania, by an order of this court dated January 4, 2011, for disposition, inter alia, of Defendant's preliminary objections relating to an alleged agreement for alternative dispute resolution, Defendant's motion to strike the lis pendens in this county is also transferred to the Court of Common Pleas of Adams County in the interest of judicial consistency on rulings dependent upon common legal and factual issues. PLAINTIFF shall coordinate the removal and transfer of this aspect of the record with the counties' prothonotaries, and shall pay all costs and fees associated therewith. BY THE COURT, 1 W?,, 1 ov J. esley Oler(-Y ., J. -...+ ?a -n ° Q - C:> n =- 0 , a Edward G. Puhl, Esq. 220 Baltimore Street Gettysburg, PA 17325 Attorney for Plaintiff Bruce J. Warshawsky, Esq. 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 Attorney for Defendant ?I e-9, Da :rc IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - EQUITY RL REINER, LLC, Plaintiff No. 10-3046 Equity V. : INDIAN SPRINGS ASSOCIATES, LLC, Defendant TO THE PROTHONOTARY: PRAECIPE Pursuant to the attached court order, please strike the lis pendens docketed to the above-referenced case. PUHL, EASTMAN & THRASHER By Edward G. Puhl Attorney for Plaintiff 220 Baltimore Street Gettysburg, PA 17325 (717) 334-2159 PA Attorney ID No. 55709 edward.puhl@comcast.net rn =rrl c 53, ?l`67p f"t . o f a coDS?a IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA CIVIL RL REINER, LLC, Plaintiff V. INDIAN SPRINGS ASSOCIATES, LLC, Defendant ORDER OF COURT w n 11-S-118 -C o CD r= zrn - Q AND NOW, this 10'" day of May, 2011, the Prothonotary of Cumberland County is directed to strike the lis pendens filed in this matter on May 10, 2010 against the property located in Southampton Township, Cumberland County, Pennsylvania, more specifically described in the deed recorded in Cumberland County Record Book 265 at page 3355. Costs to strike the lis pendens shall be paid by the Plaintiff, RL Reiner, LLC. BY THE COURT: MICHAEL A GE GE Judge ,ward G. Puhl, Esquire Bruce J. Warshawsky, Esquire