Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
10-4356
J Lowell R. Gates, Esq. ID No. 46779 Clifton R. Guise, Esq. ID No. 93537 Gates, Halbruner, Hatch & Guise, P.C. 1013 Mumma Road, Suite 100 Lemoyne, Pa 17043 Phone: (717) 731-9600 Fax: (717) 731-9627 l.r. gates@gateslawfirm. com c.guise@gateslawfin-n.com SANDRA S. KING, Plaintiff V. DAVID E. WINSTON, D/B/A, INTERLINK SUPPLY, AND PROFESSIONAL SOLUTIONS, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. /U- 4' ` &10l CIVIL TERM YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION .ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17103 (717) 249-3166 OR (800) 990-9108 (?? 12- Lowell R. Gates, Esq. ID No. 46779 Clifton R. Guise, Esq. ID No. 93537 Gates, Halbruner, Hatch & Guise, P.C. 1013 Mumma Road, Suite 100 Lemoyne, Pa 17043 Phone: (717) 731-9600 Fax: (717) 731-9627 l.r. gates@gateslawfirm. com c. gui s e@gateslawfirm. com SANDRA S. KING, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. DAVID E. WINSTON, D/B/A, INTERLINK SUPPLY, AND PROFESSIONAL SOLUTIONS, INC., Defendant AVISO CIVIL TERM USTED HA SIDO DEMANDO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguienter paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecenicia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por las Corte sin mas aviso adicionla. Usted puede perder dinero o propiedad a otros derechos importantes para used. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICIAN PUEDED PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUADED PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET No. CARLISLE, PA 17103 (717) 249-3166 OR (800) 990-9108 Lowell R. Gates, Esq. ID No. 46779 Clifton R. Guise, Esq. ID No. 93537 Gates, Halbruner, Hatch & Guise, P.C. 1013 Mumma Road, Suite 100 Lemoyne, Pa 17043 Phone: (717) 731-9600 Fax: (717) 731-9627 I.r. gates@gateslawfirm. com e.guise@gateslawflrtn.com SANDRA S. KING, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. DAVID E. WINSTON, D/B/A, INTERLINK SUPPLY, AND PROFESSIONAL SOLUTIONS, INC., Defendant COMPLAINT CIVIL TERM AND NOW, comes Plaintiff, Sandra S. King, by her attorney, Gates, Halbruner, Hatch & Guise P.C., and files this Complaint against Defendant, David Winston sounding in Breach of Contract and in support thereof, avers as follows: PARTIES 1. Plaintiff, Sandra S. King, is an adult individual currently residing at 915 Whisler Road, Etters, York County, Pennsylvania 17319. 2. Defendant, David E. Winston is an adult individual currently residing at 27 Woodmyre Lane, Enola, Cumberland County, Pennsylvania. 3. Defendant is trading and doing business under the fictitious name "Interlink Supply", No. situated at 4609 Gettysburg Road, Mechanicsburg, Cumberland County, Pennsylvania. 4. "Interlink Supply" is a fictitious name owned, in part, by Professional Solutions, Inc., a Pennsylvania business corporation, with its registered office address at 829 State Street, Lemoyne, Pennsylvania 17043, and mailing address at 4609 Old Gettysburg Road, Mechanicsburg, Pennsylvania 17055. 5. David E. Winston is the President, Vice-President, Secretary and Treasurer of Professional Solutions, Inc. 6. Defendant has leased the premises located at 4609 Gettysburg Road, Mechanicsburg, Cumberland County, Pennsylvania (the "Premises") from Plaintiff pursuant to an Agreement of Lease dated October 24, 2005. 7. Wladimir S. King was a joint owner of the 4609 Gettysburg Road Premises until his death on April 21, 1997. JURISDICTION AND VENUE 8. This court has jurisdiction pursuant to 42 Pa. C.S.A. Section 931. Venue is proper as Defendant's business is located in Cumberland County, and the Premises are located in Cumberland County and the contract was signed and completed in Cumberland County. FACTS 9. On October 24, 2005, Plaintiff as Landlord and Defendant as Tenant entered into an Agreement of Lease for the Premises dated October 24, 2005 (the "Lease"). A true and correct copy of the Agreement of Lease is attached as Exhibit A and is incorporated herein by reference. 10. The term of the Lease began on November 1, 2005 and ended on October 31, 2008. 11. Defendant and Plaintiff have not entered into a new lease. 12. The Lease required Defendant to make payments in the amount of Three Thousand Five Hundred Dollars ($3,500.00) per month for each month of the term. 13. By letter dated October 31, 2005, Plaintiff granted to Defendant an option to purchase the Premises (the "Option Letter"). A true and correct copy of the Option Letter is attached as Exhibit B and is incorporated herein by reference. 14. Defendant recorded the Option Letter in the Cumberland County Recorder of Deeds Office as Instrument Number 200813307 on April 25, 2008. 15. Plaintiff did not grant Defendant permission to record the Option Letter. 16. Defendant has not properly exercised his option to purchase. 17. Defendant continues to occupy the Premises despite the fact that the term of the Lease has expired and Defendant has not properly exercised his option to purchase the Premises. 18. Defendant is a hold-over tenant. 19. Defendant has paid $53,608.77 in rent from November 1, 2008 until June 1, 2010. 20. The rent due at the rate of $3,500.00 per month from November 1, 2008 until June 1, 2010 would have been $70,000.00. 21. Defendant has failed to pay $16,391.23 in rent for the period from November 1, 2008 until June 1, 2010, and Defendant continues to fail to pay the proper amount of rent due each month as a hold-over tenant. 22. Defendant has failed to pay the sum $1,598.99 in late fees, and additional late fees will continue to accrue into the future. COUNTS COUNT I. BREACH OF CONTRACT 23. Paragraphs 1 through 22 are incorporated herein by reference. 24. Defendant entered into the Agreement of Lease for the Premises dated October 24, 2005 with the Plaintiff for the lease of the Premises. 25. Defendant continues to occupy the Premises beyond the term of the Lease. 26. As a result of the breach of contract, Plaintiff incurred actual damages in the amount of $16,391.23 in lost rents plus $1,598.99 in late fees, plus additional lost rents and late fees accruing in the future. Wherefore, Plaintiff requests that judgment be entered in her favor and against Defendant. RELIEF 27. Plaintiff requests actual damages in the amount of $17,990.22, plus continuing accrued lost rent and late fees. 28. Plaintiff requests that Defendant be evicted and that Plaintiff be granted possession of the Premises. 29. Plaintiff requests that the recorded Option Letter be terminated as an encumbrance to Plaintiff's title to the Premises. 30. Plaintiff requests attorney's fees and costs and whatever other good and equitable relief this Court may, in its discretion, find necessary. COUNT 11. UNJUST ENRICHMENT 31. Paragraphs 1 through 30 are incorporated herein by reference. 32. Defendant occupied the Premises beyond the term of the Lease. 33. Defendant failed to pay adequate rent for the use of the Premises beyond the term of the Lease. 34. Defendant has been unjustly enriched by occupying the Premises and failing to pay adequate rent. 35. Defendant should be required to pay the value of the benefit conferred. Wherefore, Plaintiff requests that judgment be entered in her favor and against Defendant. RELIEF 36. Plaintiff requests actual damages in the amount of $17,990.22, plus continuing accrued lost rent and late fees. 37. Plaintiff requests that Defendant be evicted and that she be granted possession of the Premises. 38. Plaintiff requests that the recorded Option Letter be terminated as an encumbrance to Plaintiff's title to the Premises. 39. Plaintiff requests attorney's fees and costs and whatever other good and equitable relief this Court may, in its discretion, find necessary. Wherefore, Plaintiff respectfully requests this Court enter judgment in favor of Plaintiff and against Defendant. Plaintiff also requests such other and further relief, including fees and costs, as this Court may deem just and proper. Respectfully Submitted, GATES, HALBRUNER, HATCH & GUISE, PC June 29, 2010 owell R. Gates, Esq. PA ID #46779 Clifton R. Guise, Esq. PA ID #93537 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Phone: (717) 731-9600 Fax: (717) 731-9627 l.r.gates a,,,ateslawtirm.com c.guise r) gates] awfinn.com JUN-23-2010 10:00 AM KIMEX 1 717 932 1879 P.03 SANDRA S. KING, Plaintiff V. DAVID WINSTON, DB/A, INTERLINK SUPPLY Defendant VERIFICATION No. CIVIL TERM I, Sandra S. King, hereby verify that the statements made in the foregoing Complaint are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: 616)) V IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 8 /? ?? AGREEMENT OF LEASE Page I This Agreement Of Lease, Made this 24`h day of October, 2005, between Sandra S. King (hereinafter sometimes referred to as "Lessor"), and David Winston. d/b!a, interlink Supply (hereinafter sometimes referred to as "Lessee"). WITNESSETH: I. Premises The Lessor hereby leases to the Lessee 8237 Sq. Ft. of gross floor space and 391 Sq. Ft. of overhead storage in the "Main Building", together with improvements thereon, owned by Lessor and situate at 4609 Gettysburg Rd., Mechanicsburg..I7055,Cumberland County, Pennsylvania (The Leased Premise) together with the right to the use of the parking lot in front of the leased premise, rear of leased premise and parking spaces adjoining the designated parking spaces for 4609A Gettysburg Rd., Mechanicsburg, Pa., located on the left side of the parking lot. Use of driveways and footways are common to the entire property. 2. Terms and Rent To have and to hold the same for a thirty six month term commencing on November 1, 2005, and ending October 31, 2008, with rent being payable monthly during such term as follows: Three thousand five hundred ($3500.00) dollars - each month - November 1, 2005 through October 31, 200008. The rent due hereunder shall be due and payable in advance of the first day of each month, . (Mr. Winston did pay the initial month's rent on October 21, 2005.), during the term of this lease. For any installment not received by the lessor by the 5`h day of the calendar month, Lessee shall pay a late charge of ten (10%) percent of the amount due. All terms and conditions of this lease are effective November 1, 2005. 3. Place of Payment The rent payable by Lessee hereunder shall be paid to Lessor at 915 Whisler Rd., E ters, Pa. 17319, or at such other address as the Lessor may request in writing. All payments shall be effective when actually received by Lessor, or when delivered to Lessor's address. Agreement of Lease (King/Winston) 10/24/05 Page 2 4- Security Deposit Lessee shall pay to Lessor $3500.00 which will 1,.. r of this lease and/or damages, injuries or repairs which shall bed the obligation for any breach and which have not been properly attended to by the Lessee at the end go Rion of the Lessee the be responsible for any damage, injuries or repairs which may exceed term. Lessee interest ' this deposit shall accrue for the benefit of the Lessee. Lease $3500,00 No interest in possibly purchasing the pro e had expressed an at the end of this lease term. An per' at 4609 Gettysburg Rd., Mechanicsburg, Pa- toward Any or all of the "Security Deposit" remaining will be applied purchase of the property should Mr. Winston make this purchase. 5- Taxes, Utilities, Maintenance and Insurance The Lessee shall pay for the cost o£ heat, electricity, trash removal, Janit services, snow removal and interior repairs, Lessee intends to alter the existin of tai and conference room space in the front of the building to turn it into a large s g,office area which room Is more suitable for his business. Lessee also intends to install a oub between what is now office and the main warehouse floor. Lessor has give le door to make these changes to the building so long as the structural irate maintained. Some of the existin carpet and the floor will be removed and new?carpetldthg is installed. Heatng vents must also be moved during ing All _ renovation will be the IeS this , enovation. A I lust of this ponsibility of the Lessee. Lessee also intends to build a concrete ramp at the rear of he buiiog which is acceptable to the Lessor and has apparently been cleared by the Lower Allen Twp. Lessor is installing a new Lennox Heating and Air Conditioning system whit handle the current office areas of the buildin g- his has to h will ual maintenance done with receipt of such maintenance sent to Lesssor.yitessee an Shane ann annual maintenance which will increase the efficiency of the system. g he filter between "Three overhead gas heaters are spaced throughout the warehouse and to er level of the buildin. T the turned on/off by a certified heating systems g he,e must person. Since Lessee is in the supply busine maintain the flooring- ss related to carpet and the cleaning . he will Lessor will finish cleanup of the leaves along the side of the parking lot not remov by the previous tenant. Future leaf and debris cleanup for the areas assi ed Building" will be the responsibility of the Lessee. Areas assi gned to the "Main gned will be the responsibility of the Lessor or tenant in that building. to the "Annex Building" g. Lower Allen Twp- does Agreement of Lease (King/Winston') 10/24%05 Page 3 5. Taxes. Utilities, Maintenance and Insurance Continued have numerous annual pickup days for leaves. Leaves are to be placed on the outside of the curbino :where they :rill be vacuumed up. Leaves can also be bagged and taken with your refuse. Any debris which blows onto the neighbor's property is to be picked up. Lessor shall be responsible for ground area assigned to 4609A Gettysburg Rd., Real Estate, School and local taxes applicable to the premise, property insurance, structural repairs not related to renovation done by Lessee, water and sewer and roof repairs. 6. Use of Leased Premise The leased premise shall be used for general office, showroom, warehouse and shop related to the Lessee's business. 7. Maintenance and Repair Lessee shall maintain the leased premise in a state of good repair at his own expense and shall surrender the leased premise in as good condition as it was at the commencement of the original lease except for ordinary wear and tear and damages caused by fire, storm, or other natural disaster. Aii damages done to the leased premise other than damage caused by ordinary wear and tear, fire, storm, or other natural disasters shall be repaired at the cost of the Lessee_ 8. Condition of Premises on Surrender The leased premise, if not purchased, shall be surrendered with carpeting , floors and all fixtures and furnishings cleaned. Lessor will clean the windows prior to Lessee moving in and these are to be surrendered cleaned. All items and debris belonging to the Lessee shall be removed from the premise as well as the parking lot areas assigned to this building. Should the property not be purchased, the Lessee will restore the building to the original floor plan if Lessor requests the Lessee to do so. 9. Insurance Lessee hereby covenants and agrees at all times during the term of this lease to obtain, maintain, and keep in force general public liability insurance against claims for personal injury, death, or property damage occurring in, on or about the premises or adjacent to the premises . Agreement of Lease (King/Vinston) 10/24/05 Page 4 9. Insurance Continued Bodily tnjury(including completed operations and products liability) Amount required by the state cf Meru s`; Ivan,a Property Damage- Required and recommended amount for the State of Pennsylvania Liability policy will include personal injury protection Lessee agrees that all the above noted insurance shall not be cancelled without ten (10) days written notice to Lessor. Lessee further covenants and agrees that the insurance required to be carried herein shall be placed with insurance companies licensed to do business in Pennsylvania. Lessee shall deliver certificates of such insurance to Lessor and all renewals thereof throughout the term of this lease . Lessee shall name Lessor as an additional insured on each of the above referenced policies. Lessor shall maintain fire insurance on the leased premise but not on its contents. 10. Liability to Third Parties Lessee agrees to be responsible for and to relieve or indemnify Lessor from all liability by reason of any dailage or Injury to any person or tl'iing which may arise from any cause whatsoever, on the leased premises whether such damage or injury be caused by or result from the negligence of the Lessee, its servants or agents. Lessee will not be responsible for, or to relieve or indemnify Lessor from stated liability by reason of any damage or injury to any person or thing which may arise from the actual negligence of Lessor, her agents, invitees or employees. Lessee agrees to indemnify and hold harmless Lessor from all liability resulting from any environmental issue including dumping of hazardous materials and/or waste, unless such liability results from negligent or intentional conduct of Lessor_ Lessee warrants that Lessee shall comply fully with all federal, state and local environmental issues, unless such claim results from the intentional or negligent conduct of Lessor. Failure by Lessee to comply with any federal, state or local law and/or regulation, including permit requirements, shall constitute grounds for immediate eviction from the premises. The remedies and provisions contained in this section shall be in addition to, and shall not be limited by, the provisions of section 29. Lessor and Lessee hereby agree that in the case of claims and demands, cost, expenses or otherwise which arise from the concurrent or joint negligence of the parties to comply with applicable environmental and any other laws or regulations respecting the premises, each Agreement of Lease (King/Winston) 10/24/05 Page 5 10. Liability to Third Parties Continued party hereto shall be entitled to contribution from the other in the amount of the other party's comparative negligence. 11. Damage to Or Destruction Of Leased Premises If the leased premises shall be damaged or rendered untenable as determined by Lessor, in while or in part, through no fault of Lessee, the Lessor shall have the right to retain any insurance proceeds payable to Lessor and terminate this lease. Either party may elect, within forty five (45) days after the date of said damage or destruction, to require Lessor to commence to repair or replace the leased premises, so that the same shall be completed within six (6) months thereafter, or as reasonable as possible. The obligation of Lessee to make rental payments for that portion of the leased premises which are useable during the repair period shall be due only if business is capable of operation during said repair period. Lessor shall have no right to terminate this lease in the event the damage or destruction to the leased premises is de minimis. 12. Unlawful Activities Lessee shall not carry on any unlawful or immoral activity in or about the leased premises, and shall not carry on any activity which will endanger the building from fire or cause a forfeiture of any fire insurance that the Lessor has or may herea ter have on said building. 13. Default; Remedies (A) If Lessee shall fail to pay any installment of rent promptly on the day when the same shall become due and payable hereunder (and such failure continues for ten (10) days after notice from Lessor(whieh notice shall be required only for the first three occasions on which Lessee fails to pay the rent by the due date); (B) If Lessee shall fail to promptly keep and perform any other affirmative covenants of this lease, strictly in accordance with the terms of this lease; (C) If Lessee discontinues its business in the leased premises; or if an action for appointment of a receiver or trustee of Lessee's property is filed against Lessee, or Lessee executes an assignment for the benefit of creditors or any governmental officer or agency pursuant to statutory authority for the dissolution or liquidation of the Lessee takes possession of Lessee's property; or (D) If Lessor determines Lessee is removing, attempting to remove, or manifesting an intention to remove Lessee's goods or property ftom the leased premises (except in the ordinary and usual course of business) without having first paid Lessor all the rent for the balance of the lease term; then, and in any such event, and as often as any such event shall occur.. Lessor may (i) declare the lease in default and the said term ended, and enter into said leased premises as in the Lessor's former estate, (ii) accelerate the payment Agreement of Lease (King/Winston) 10!24/05 Page 6 13. Default; Remedies Continued of all rent due hereunder for the balance of the term of the lease as liquidated damages for Lessee's default and not as a penalty; and (iii) exercise any and all other rights available to Lessor Iiereunuer or otherwise available at law or in equity. i nne shall be deemed to be of the essence for the fulfillment of Lessee's covenants and duties in this lease. 14. Confession of Judgment for Money Damages In addition to the remedies provided for in paragraph 13, if Lessee defaults hereunder, the Lessee hereby empowers the Prothonotary or any attorney of any count of record with the Commonwealth of Pennsylvania or elsewhere to appear for the Lessee, and with or without complaint files, to confess judgment against the Lessee and in favor of the Lessor, or any other holder of this lease, for the sums owed by the Lessee or for any default on the part of the Lessee, pursuant to the terms of this lease, for the sums owed by the Lessee, upon which judgment or judgments one or more executions may issue forthwith, upon failure to comply with any of the terms or conditions of this lease. Lessee hereby forever waives and releases all errors in said proceedings, waives stay of execution, the right of inquisition and the extension of time of payment. An affidavit filed by any authorized representation of Lessor shall be conclusive evidence by Lessee's default hereunder. No single exercise of the forgoing power to confess judgement shall be deemed to exhaust the power whether or not such exercise shall be held by any court to be invalid, voidable or void, but judgment may be confessed as aforesaid from time to time as often as any of said rent or other charges shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the original term and during any extension or renewal of this lease. Lessee hereby warrants that his annual income exceeds $10,000.00 David Winston 15_ Confession of Judgment for Possession If Lessee violates any terms in this lease, either during the original term of this lease or any renewal or extension thereof, and also when, and as soon as the term hereby created or any extension thereof shall have expired, it shall be lawful for any attorney, as attorney for Lessor, to sign an agreement and file and enter in any competent court an amicable action for judgment in ejectment against Lessee and, for and whereupon, if Lessor so desires a writ of possession and, provided that if for any reason after such action shall have been commenced, and same shall be determined and possession of the leased premises hereby demised remains in or thereby be restored to Lessee, Lessor shall have the right upon any future default or defaults Agreement of Lease (king/Winston) 10/24/05 page 7 15. Confession of Judgment for Possession Contilnued or upon the termination of this lease as herein set forth, to bring one or more amicable action or actions as herein set forth, to recover possession of said leased premises or any part thereof. In any amicable action of ejectment, Lessor shall first cause to be filed an affidavit made by her or by someone for her and on her behalf setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence, and if a true copy of this lease is filed in such action, it shall not be necessary to file the original„ as a warranty of attorney, notwithstanding any rule of court, custom or practice to the contrary. The remedies of Lessor set forth herein shall be cumulative of all rights and remedies available hereunder or otherwise available at law or equity. No waiver by either party at any time, express or implied, of any breach of any provisions of this lease shall be deemed a waiver of a breach of any other provision of this lease or a consent to any subsequent breach of the same or any other provision. Lessee hereby warrants that his annual income exceeds 40, 000 1 f (0,,-`'; David Winston r 16. Fixtures and Alterations All alterations, improvements, additions or fixtures, whether installed before or after the execution of this lease shall remain upon the leased premises at the expiration or sooner determination of this lease and become the property of the Lessor, unless the Lessor shall, prior to the determination of the lease, have given written notice to the Lessee to remove the same in which event the Lessee will remove such alterations, improvements and additions and restore the leased premises to the same good order and condition in which they were originally in. Should the Lessee fail to do so, the Lessor may do so, and collect the cost and expense thereof from the Lessee as additional rent. 17. Inspection and Access Lessor shall have the right at all reasonable times to go upon and inspect the leased premises and every part thereof. Lessor shall also have the right during the term of this lease to show the leased premises to any prospective tenant at reasonable times during office business hours or special times made by appointment. This will only apply if the Lessee decides he does not wish to remain at the premises and gives the Lessor 90 days notice of his intent to leave prior to the expiration of this lease. Agreement of Lease (King/Winston) 10/241/05 page 8 18. Assignment and Sublet Lessee and Lessor have agreed that Lessee may lease some portion of the premise for storage so long as the party or parties are acceptable to both Lessee and Lessor. 19. Subordination This lease is and shall be subject and subordinate to the lien of any mortgage which Lessor has placed or may place upon the leased premises and to all terms, conditions, and provisions thereof, to all advances made, and to any renewals, extensions, modifications, or replacements thereof The Lessee agrees to execute such reasonable documents as be necessary to insure compliance with the subordination and further agrees to execute upon request of the Lessor an estoppel certificate certifying that this lease is in full force and effect, the date to which rent and other charges hereunder have been paid and other factual matters reasonable required by Lessor. 20. Right of First Refusal Lessor shall grant to Lessee a right of first refusal for the purchase of the property. 21. Eminent Domain if the whole or any part of the leased premise shall be taken for any public or Quasi- public use under any statute or by right of eminent domain or by private purchase in lieu thereof, Lessor shall have the right to cause the rental payments to abate proportionately, or to terminate the lease in its entirety, at the sole discretion of Lessor. In either such event, Lessee hereby assigns, transfers, and releases unto Lessor all damages, rights or claims of Lessee exception only tenant's improvements, trade fixtures, additions, moving expenses and Lessee's actual relocation expenses. Except as aforesaid, all such condemnation proceeds shall be the property of Lessor. Lessor shall have no right to terminate the within lease in the event the condemnation of the leased premises is de minirms. 22. Alterations Lessor has given her permission to alterations in section 5 of this lease. 23. Signs Lessee has permission to place a large sign on the front of the leased premise. Agreement of Lease (King/Winston) 10/4/05 Page 9 24. Notice of Intent To Renew/Not Renew/ Desire to Purchase Lessee agrees to give Lessor notice of his intentions to: renew the lease, not renew the lease or desire to purchase the property ninety (90) days prior to the termination of this lease period. 25. Successors and Assigns This lease agreement shall be binding on and. insure to the benefit of the successors and assigns of the parties hereof. In the event something should happen to Sandra S. King, Lessor, her heir is Joseph M. Harper, her son. His current address is 3 Bayberry, Mechanicsburg, Pa. 17050. He will he aware of any discussion the Lessee and Lessor have had regarding the possibility of a future purchase of the property. 26. Notices All notices, approvals, and other communications required by this lease shall be in writing and not be effective unless hand delivered or sent postage prepaid by United States registered or certified mail, return receipt requested to the following address: Lessor Sandra S. King.,, 415 Whisler Rd. r ters, Pa. 17319' Lessee Dave Winston 27 Woodmyre Lane Enola, Pa. 17 025 or to such other address as either party may designate by notice given from time to time. Notices, approvals and other communications shall be effective upon receipt or refusal by the party to which such notice, approval or other communication is intended. Agreement of Lease (King/Winston) 10/24/05 Page 10 27. Hazardous Substances Lessee shall not use the Demised Premises to treat, produce, store, handle, transfer, process, transport, dispose of or otherwise release any Hazardous Substances on, from or affecting the Deunised Pref rises which has caused, is causing or could cause contaniimtion. Lessee covenants that the Demised Premises shall be kept free of any Hazardous Substance which is causing or could cause Contamination and shall not be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process any Hazardous Substance which is causing or could cause Contamination. Lessee shall comply with and ensure compliance with all applicable federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substances and shall keep the Demised Premises free and clear of any liens imposed pursuant to such laws, ordinances rules and regulations. Hazardous Substances shall include, without limitation, any flammable explosives; radioactive materials; hazardous materials; hazardous wastes; hazardous or toxic substances; hazardous or toxic pollutant or related materials; asbestos or any material containing asbestos; or any other substance, mixture, waste, compound, material, element, product or matter as defined by any federal, state or local environmental law, ordinance, rule or regulation. Lessee agrees to defend, indemnify and hold Lessor harmless from and against any losses, expenses, liabilities and claims arising from any breach or default by Lessee of the representations or obligations under this lease, including, without limitation, reasonable attorney's fees. The obligations and liabilities under this section shall survive the termination of this lease. 28. Pennsylvania Law The terms of this lease shall be interpreted in accordance with Pennsylvania Law and shall be litigated in Cumberland County, Pennsylvania. 29. Full Power and Authority The undersigned represent and wan-ant that they have full power and authority to execute this lease on behalf of Lessor and Lessee and to legally bind Lessor and Lessee to the terms thereof. Agreement of Lease (King/Winston) 10/24/05 Page I I 30. Inspection It is understood that Lessee has inspected the property and is aware of small things which will be done prior to November 1, 2005 and some things which will now have to wait until Spring because the weather is getting too cold. Items to be taken care of in the Spring include: installing a new warehouse entry door, repainting the side dock area and repainting the front entry doors. All major items such as heating and AC, hot water tank and roofing are in new condition or almost new condition. An electrician has been contracted to install "Emergency Lighting and Exit Signs" on the property. Should Lessee wish to list any other conditions of the premises, please do so on the following: 31. It shall constitute an event of default for either party to record this Agreement of Lease, or a memorandum thereof. IN WITI-IESS WHEREOF, the panties htfve caused this lease to be executed the day and year first above written. WITNESS: WITNESS: d/b/a Interlink Supply David Winston Tenant: David Winston SANDRA S. KING 915 `hThisler Rd. Et:ters, Pa 17319 Ph: 717-938-3886. E-mail: sskkimex@juno.com October 31, 2005 Mr. David Winston 27 Woodmyre Lane Enola, Penna. 17025 OFFER OF TERMS FOR PROPERTY PURCHASE - 4609 Gettysburg Rd., Mechanicsburg, Pa. 17055 - AFTER CURRENT 3 YEAR LEASE PERIOD If property is purchased by David Winston after the expiration of our Three year lease, $1000.00 credit for each month of the lease will be Subtracted from a selling price of $600,000.00. (Total of $36,000.00 Dollars). The property owner, Sandra S. King, will guarantee Mr. David Winston, An Agreement of Sale mortgage rate of 5% at that time. If at the end of our current three year lease, lessee has decided he does not Wish to purchase the property for whatever reason, he can : 1_ . Negotiate a new lease 2. Vacate the premise with proper notice 3. Negotiate terms of an Agreement of Sale for a future date The property owner intends to install a new side entrance door to the warehouse And make some improvements to the parking lot. This will be at the expense Of the property owner. The property owner, Sandra S. King, will be under no obligation to refund or Credit the above mentioned $36,000.00 at the end of the current three year lease Period if Mr. David Winston has decided not to purchase the property. SANDRA S. DING 915 Whisler Rd. Etters, Pa 17319 Ph: 717-938-3886. E-mail: sskkimex@juno.com Page 2 - October 31, 2005 OFFER OF TERMS OF PROPERTY PURCHASE CONTINUED ......... Sandra S. King/David Winston This agreement is separate from the Lease Agreement between the two parties mentioned Above. This agreement does not alter in any way, the terms of said lease. Date: i . .21[ 6J__ i `David Winston/ Potential Purchaser }fY T I~L~/ ZQIO.~~.L ~3 ~~~ ~ 33 GATES, HALBRUNER, HATCH & GUISE, P.C. Lowell R. Gates, Esq. ID No. 46779 C~,'~~:-LL _ ~,~j+~r Clifton R. Guise, Esq. ID No. 93537 ='~- .~I`,1;_','', ~:~.','~,°~~i! 1013 Mumma Road, Suite 100 Lemoyne, PA 17043-1144 Phone: (717) 731-9600 Fax: (717) 731-9627 l.r. gates@gateslawfirm.com c. guise@gateslawfirm. com Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY. PENNSYLVANIA SANDRA S. KING Plaintiff CIVIL ACTION v. . DAVID E. WINSTON, DB/A INTERLINK SUPPLY, AND PROFESSIONAL SOLUTIONS, INC., Defendant CASE NO. 10-4356 PRAECIPE TO REINSTATE COMPLAINT To The Prothonotary: Kindly reinstate the attached Complaint in the above-captioned case. Respectfully submitted, GATES, HALBRUNER, HATCH & GUISE, P.C. ~~ Date: July 21, 2010 owell R. Gates, Esq. PA ID #46779 Clifton R. Guise, Esq. PA ID #93537 1013 Mumma Road, Suite 100 Lemoyne, Pennsylvania 17043 ~ Phone: (717) 731-9600 ~ 10 , oo pp q-~' Fax: (717) 731-9627 C* 138~t7 l.r. ag tes(a,gateslawfirm.com c. uise(a,~ateslawfirm.com ~~ ays7aq Y McNEES WALLACE & NURICK LLC Charles T. Young, Jr. Attorney ID No. 80680 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5397 (717) 237-5300 facsimile cyounq(c_mwn.com R1k ? Tom( ('?M$?? Y1.VAN1A? PEN Attorneys for Defendants SANDRA S. KING, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. DAVID E. WINSTON, D/B/A, NO. 10-4356 Civil INTERLINK SUPPLY, AND PROFESSIONAL SOLUTIONS, INC. Defendants ENTRY OF APPEARANCE Please enter the appearance of Charles T. Young, Jr., and McNees Wallace & Nurick LLC on behalf of Defendants David E. Winston, Interlink Supply and Professional Solutions, Inc., in the above-captioned action McNEES W LrLAC N R? K LLC ,r ?F By // Charles T. Young, r. I.D. No. 80680 100 Pine Stree P. O. Box 1166 Harrisburg, Pfd 17108-1166 (717) 237-5397 -- and - Date: August 24, 2010 Albert J. Hajjar, Esq. Suite A, 1300 Market Street Lemoyne, PA 17043 Attorneys for Defendants CERTIFICATE OF SERVIC The undersigned hereby certifies that on the o? day of August 2010, a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Lowell R. Gates, Esq. Gates, Halbruner, Hatch & Guise, PC 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 " ?. Charles T. Young Jr Of Counsel to DOfendants McNEES WALLACE & NURICK LLC Charles T. Young, Jr. Attorney ID No. 80680 P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 (717) 237-5397 (717) 260-1760 facsimile cyounq(c-mwn.com Attorneys for Defendants SANDRA S. KING, Plaintiff V. DAVID E. WINSTON, D/B/A, INTERLINK SUPPLY, AND PROFESSIONAL SOLUTIONS, INC. Defendants Fl_nn 1J : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA NO. 10-4356 Civil NOTICE TO PLEAD TO: Plaintiff Sandra S. King and her attorney(s) You are hereby notified to file a written response to the enclosed Answer with New Matter and Counterclaims within twenty (20) days from service hereof or a judgment may be entered against you. McNEE%5 ALLA?E &INURICK LLC By Charles T. Young fJr. I.D. No. 80680 / 100 Pine Street/P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5397 -- and - Date: September 10 , 2010 Albert J. Hajjar, Esq. Suite A, 1300 Market Street Lemoyne, PA 17043 Attorneys for Defendants McNEES WALLACE & NURICK LLC Charles T. Young, Jr. Attorney ID No. 80680 P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 (717) 237-5397 (717) 237-5300 facsimile cyoung(aD-mwn.com SANDRA S. KING, Plaintiff V. DAVID E. WINSTON, D/B/A, INTERLINK SUPPLY, AND PROFESSIONAL SOLUTIONS, INC. Defendants Attorneys for Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA NO. 10-4356 Civil DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIMS TO THE COMPLAINT Defendants, by and through their attorneys McNEES WALLACE & NURICK LLC, hereby file this Answer with New Matter and Counterclaims. In response to the Complaint's allegations, Defendants state the following: PARTIES 1. Admitted. It is admitted that Plaintiff Sandra S. King is an adult individual residing at 915 Whisler Road, Etters, York County, PA 17319. 2. Admitted. It is admitted that Defendant David E. Winston is an adult individual currently residing at 27 Woodmyre Lane, Enola, Cumberland County, PA. 3. Admitted. It is admitted that "Interlink Supply" is a fictitious name registered to Defendants Winston and Professional Solutions, Inc. It is further admitted that Winston and Professional Solutions operate from 4609 Gettysburg Road, Mechanicsburg, Cumberland County, PA. 4. Admitted in part, denied in part. It is admitted that "Interlink Supply" is a fictitious name registered to Defendants Winston and Professional Solutions. It is further admitted that Professional Solutions previously had a registered office address at 829 State Street, Lemoyne and a mailing address at 4609 Gettysburg Road, Mechanicsburg, PA 17055. It is denied that Professional Solutions continues to operate from the State Street address. 5. Admitted. It is admitted that Winston is the President, Secretary, Treasurer, and Vice President of Professional Solutions. 6. Admitted in part, denied in part. It is admitted that Winston leased the property from November 2005 to October 2008. The remainder of the allegations is denied. It is denied that Winston is presently leasing the property. By way of further response, Plaintiff and Winston executed an Agreement of Lease dated October 24, 2005. The Agreement of Lease is a legal document that speaks for itself, and Plaintiff's characterizations of and/or selective quotations from that document are denied. 7. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of this averment. Therefore, it is deemed denied. JURISDICTION AND VENUE 8. This Paragraph contains legal conclusions to which no response is required. ALLEGED FACTS 9. It is admitted that Plaintiff and Winston executed the Agreement of Lease dated October 24, 2005. By way of further response, the Agreement of Lease is a legal 2 document that speaks for itself, and Plaintiffs characterizations of and/or selective quotations from that document are denied. 10. The Agreement of Lease is a legal document that speaks for itself, and Plaintiffs characterizations of and/or selective quotations from that document are denied. 11. It is admitted that Plaintiff and Defendant(s) have not entered into another agreement of lease. 12. The Agreement of Lease is a legal document that speaks for itself, and Plaintiffs characterizations of and/or selective quotations from that document are denied. 13. It is admitted that the parties executed the document titled "OFFER OF TERMS FOR PROPERTY PURCHASE" (hereinafter the "Offer"). By way of further response, the Offer is a legal document that speaks for itself, and Plaintiff's characterizations of and/or selective quotations from that document are denied. 14. It is admitted that the Offer was recorded. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the remainder of the averments, and they are therefore deemed denied. 15. Denied. Plaintiff impliedly granted Defendant permission to record the Offer by executing a document, which touched and concerned the land. By way of further response, the Offer does not state that the parties are barred from recording it. 16. Denied. Defendant properly accepted the Offer by letter dated June 11, 2008. (See Attached Exhibit "A.') 3 17. Admitted in part, denied in part. It is admitted that Defendant continues to occupy the property. The remainder of the allegations is denied. By way of further response, Defendant properly accepted the Offer by letter dated June 11, 2008. (See Attached Exhibit "A.'? By way of further response, the Agreement of Lease is a legal document that speaks for itself, and Plaintiffs characterizations of and/or selective quotations from that document are denied. 18. This Paragraph constitutes a conclusion of law to which no response is required. To the extent a response is deemed necessary, the allegations are denied. 19. Admitted in part, denied in part. It is admitted that Defendant has made payments on Plaintiffs purchase money mortgage. The remainder of the allegations is denied. By way of further response, it is specifically denied that the payments from Defendant constitute "rent." 20. Denied as stated. It is denied that any "rent" was due after October 2008. By way of further response, the Agreement of Lease and Offer are legal documents that speak for themselves, and Plaintiffs characterizations of and/or selective quotations from those documents are denied. 21. Denied. It is denied that Defendant was a hold-over tenant. It is denied that any rent was due. By way of further response, Defendant has made the payments due on Plaintiff's purchase money mortgage. By way of further response, the Agreement of Lease and Offer are legal documents that speak for themselves, and Plaintiffs characterizations of and/or selective quotations from those documents are denied. 4 22. Denied. The Agreement of Lease and Offer are legal documents that speak for themselves, and Plaintiff's characterizations of and/or selective quotations from those documents are denied. COUNTS COUNT I. ALLEGED BREACH OF CONTRACT 23. Defendants incorporate by reference the responses to Paragraphs 1 to 22 of the Complaint. 24. It is admitted that Plaintiff and Winston entered into the Agreement of Lease dated October 24, 2005. By way of further response, the Agreement of Lease is a legal document that speaks for itself, and Plaintiffs characterizations of and/or selective quotations from that document are denied. 25. Admitted in part, denied in part. It is admitted that Defendant has continued to occupy the property. The remainder of the allegations is denied. Plaintiff's characterization of Defendant's continued occupation as "beyond the term of the Lease" is specifically denied. 26. Denied. It is denied that Plaintiff has been damaged by Defendants' conduct. It is further denied that Plaintiff is entitled to any rent or late fees. WHEREFORE Defendants request that the Court enter judgment in their favor and against Plaintiff Sandra S. King. REQUESTED RELIEF 27. This Paragraph states a legal conclusion to which no response is required. To the extent a response is deemed necessary, it is denied that Plaintiff has been 5 damaged by Defendants' conduct. It is further denied that Plaintiff is entitled to any rent or late fees. 28. This Paragraph states a legal conclusion to which no response is required. To the extent a response is deemed necessary, it is denied that Plaintiff is entitled to possession of the property. It is further denied that Defendants should be evicted. 29. This Paragraph states a legal conclusion to which no response is required. To the extent a response is deemed necessary, it is denied that the Offer should be terminated as an encumbrance upon title to the property. 30. This Paragraph states a legal conclusion to which no response is required. To the extent a response is deemed necessary, it is denied that Plaintiff is entitled to attorneys' fees and/or costs. WHEREFORE Defendants request that the Court enter judgment in their favor and against Plaintiff Sandra S. King. COUNT II. ALLEGED UNJUST ENRICHMENT 31. Defendants incorporate by reference the responses to Paragraphs 1 to 30 of the Complaint. 32. Admitted in part, denied in part. It is admitted that Defendant has continued to occupy the property. The remainder of the allegations is denied. Plaintiffs characterization of Defendant's continued occupation as "beyond the term of the Lease" is specifically denied. 33. Denied. Defendant denies that any rent was due beyond the term of the Agreement of Lease. By way of further response, Winston made mortgage payments to Plaintiff following the expiration of the Agreement of Lease. 6 34. This Paragraph states legal conclusions to which no response is required. To the extent a response is deemed necessary, it is denied that Defendant has been unjustly enriched. By way of further response, Winston made mortgage payments to Plaintiff following the expiration of the Agreement of Lease. 35. This Paragraph states legal conclusions to which no response is required. To the extent a response is deemed necessary, it is denied that Defendant has been unjustly enriched. It is further denied that Plaintiff has not been fully compensated. By way of further response, Winston made mortgage payments to Plaintiff following the expiration of the Agreement of Lease. WHEREFORE Defendants request that the Court enter judgment in their favor and against Plaintiff Sandra S. King. REQUESTED RELIEF 36. This Paragraph states a legal conclusion to which no response is required. To the extent a response is deemed necessary, it is denied that Plaintiff has been damaged by Defendants' conduct. It is further denied that Plaintiff is entitled to any rent or late fees. By way of further response, Plaintiff seeks damages that are not properly recoverable as part of a claim for unjust enrichment. 37. This Paragraph states a legal conclusion to which no response is required. To the extent a response is deemed necessary, it is denied that Plaintiff is entitled to possession of the property. It is further denied that Defendants should be evicted. By way of further response, Plaintiff seeks relief that is not properly granted as part of a claim for unjust enrichment. 7 38. This Paragraph states a legal conclusion to which no response is required. To the extent a response is deemed necessary, it is denied that the Offer should be terminated as an encumbrance upon title to the property. By way of further response, Plaintiff seeks relief that is not properly granted as part of a claim for unjust enrichment. 39. This Paragraph states a legal conclusion to which no response is required. To the extent a response is deemed necessary, it is denied that Plaintiff is entitled to attorneys' fees and/or costs. By way of further response, Plaintiff seeks relief that is not properly granted as part of a claim for unjust enrichment. WHEREFORE Defendants request that the Court enter judgment in their favor and against Plaintiff Sandra S. King. NEW MATTER 40. By his letter dated June 11, 2008, Winston accepted the Offer and agreed to purchase the property. (See Attached Exhibit "A.'? 41. The terms of the Offer and acceptance bar Plaintiff's claims in this litigation. 42. Immediately after the lease terminated beginning on November 1, 2008, Winston made consecutive monthly purchase installment payments. 43. Winston made consecutive monthly purchase installment payments equivalent to $4,147.83 monthly, adjusted by (a) a $36,000 lease payment credit, (b) a $1,400 per month credit for rent received by Plaintiff on a separate improvement on the property, and (c) the payment of real estate taxes and sewer amortized monthly in the amount of $448.78 monthly, based upon a $564,000 ($600,000 minus $36,000 lease 8 payment credit and minus the $3,500 security deposit) net purchase price at 5% interest, amortized over a 20 year period. 44. To date, Plaintiff has not refused the installment payments made by Winston toward the purchase of the property. 45. The terms of the Agreement of Lease may bar Plaintiffs claims. 46. Paragraph 20 of the Agreement of Lease granted Winston a right of first refusal to purchase the property. 47. Plaintiffs claims are barred by the doctrines of estoppel and laches. 48. Plaintiff has waived her claims. 49. Plaintiff's claims are barred by payment. 50. Professional Solutions, Inc. is not a party to the Agreement of Lease and cannot be held liable for breach of that document. 51. Plaintiffs claims may be barred by the statute of frauds. 52. Plaintiff's claims may be barred by the relevant statute of limitations. WHEREFORE Defendants request that the Court enter judgment in their favor and against Plaintiff Sandra S. King. COUNTERCLAIMS 1. By letter dated October 31, 2005, Plaintiff offered to sell Winston the property after the lease period, for the purchase price of $600,000, with credit for prior lease payments and with the purchase price payable in installments. (See Exhibit "B" to Complaint). 9 2. By letter dated June 11, 2008, Winston accepted Plaintiffs offer and agreed to purchase the property based on the terms and conditions expressed therein. (See Attached Exhibit "A.') 3. The parties entered into a contract whereby Plaintiff would sell, and Winston would purchase, the property for the purchase price of $600,000, with credit for prior lease payments and with the purchase price payable in installments. a. The Agreement of Lease reflects the parties' agreement by acknowledging that Winston would have a right of first refusal for the purchase of the property. b. The parties' conduct also reflects the existence of the parties' agreement concerning the property. 4. Winston honored the terms of the parties' contract and made consecutive monthly purchase installment payments to Plaintiff. 5. Plaintiff accepted and deposited the monthly installment payments without objection or complaint. COUNT I - QUIET TITLE 6. Paragraphs 1 to 5 above are incorporated herein as if set forth in full below. 7. By virtue of the parties' agreement identified above, Winston holds title to the property, and Plaintiff is entitled to a purchase money mortgage. 8. Plaintiff has breached the terms of the parties' agreement by failing and refusing to execute a deed and other documentation necessary to convey good and marketable title to the property. 10 9. Winston is entitled to fee simple title to the property. WHEREFORE Defendant David E. Winston requests that the Court award him a fee simple Deed to the property and bar Plaintiff Sandra S. King from asserting any right, lien, title or interest to the contrary. COUNT II - BREACH OF CONTRACT 10. Paragraphs 1 to 5 above are incorporated herein as if set forth in full below. 11. Plaintiff has breached the terms of the parties' agreement by failing and refusing to execute a deed and other documentation necessary to convey good and marketable title to the property. 12. Winston has been damaged by Plaintiffs conduct in that he has made payments to Plaintiff and yet has been deprived of good and marketable title to the property. 13. Winston and his business have been damaged by the uncertainty surrounding his interest in the property. His business plans and the growth of the business have been jeopardized by Plaintiffs conduct. WHEREFORE Defendant David E. Winston requests that judgment be entered in his favor and against Plaintiff Sandra S. King for the amount of his damages, together with interest, costs, and any other relief the Court deems appropriate. COUNT III - DECLARATORY JUDGMENT 14. Paragraphs 1 to 5 above are incorporated herein as if set forth in full below. 15. There exists an actual controversy between the parties regarding the status of title to the property and the payments made to Plaintiff. 11 16. By virtue of the Offer and Acceptance, as well as the parties' conduct, Winston properly holds title to the property, and he is entitled to hold title to the property free and clear of any claim of ownership by Plaintiff. 17. Winston is entitled to judgment in his favor, declaring his ownership interest in the property and the character of the payments to Plaintiff. 18. The issuance of a declaratory judgment is warranted by the parties' dispute and the inability to convey good and marketable title absent Court resolution of the dispute. WHEREFORE Defendant David E. Winston requests that the Court declare that he is the owner in fee simple of the property, and the payments to Plaintiff Sandra S. King constitute installment payments on a purchase money-mortgage. McNEES W LACE,& N RIC LLC By Charles T. Youi I.D. No. 80680 100 Pine Streei Harrisburg, PAS (717) 237-5397 -- and - r. ( P. O. Box 1166 17108-1166 Albert J. Hajjar, Esq. Suite A, 1300 Market Street Lemoyne, PA 17043 Date: September 10 , 2010 Attorneys for Defendants 12 VERIFICATION Subject to the penalties of 18 Pa.C.S.A. § 4904 (relating to unsworn falsification to authorities), 1, David E. Winston, hereby certify that I have reviewed the foregoing Answer with New Matter and Counterclaims, and the responses and allegations contained therein are true and correct to the best of my knowledge, information, and belief. vid E. Winston Dated: September 1, 2010 40') interfinksupply by Professional Solutions, Inc. June 11, 2008 Sandra S. King 915 Whisler Road Etters, PA 17319 Dear Sandra, As per our lease agreement dated the 24th day of October 2005 and the OFFER OF TERMS TO PURCHASE dated the 31st day of October 2005, this will constitute my letter of intent to purchase with respect to the proposed purchase by David E. Winston and the sale by Sandra S. King of the property located at 4609 and 4609A Gettysburg Road, Mechanicsburg, PA 17055. Very truly yours, David E. Winston InterlinkSupply by Professional Solutions, Inc. 4609 Gettysburg Road, Mechanicsburg, PA 17055 717-763-0394 Fax: 717-730-9942 • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpleoe, or on the front if space permits. 1. Article Addressed to: ?rS ?G?f:Sj?r10 r Pjt7?Jq 2. Article Number ?004 1 X ` j ? Agent O Addre H. ived Printed ) C. D to of Deli c?. D. is delivery address sift nt ftern 1? O Y If YES, enter delivery addp6k below: ? No 3. Service Type ? C tifled Mail ? Express Mail ? Registered ? Return Receipt for Merchandise ? Insured Mall O C.O.D. 4. Restricted Delivery? (Extra Fee) O Yes 0,0002 4780 8586 PS Form 3811, February 2004 Domestic Return Receipt 102595.022-WIS40 CERTIFICATE OF SERVICE I, Charles T. Young, Jr., hereby certify that on this ' day of September 2010, a true and correct copy of the Answer with New Matter and Counterclaims and Praecipe for Lis Pendens were served by e-mail and U.S. first-class mail, postage prepaid, upon the following: Attorney for Plaintiff Lowell R. Gates, Esq. Gates, Halbruner, Hatch & Guise, PC 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 E-mail: 1. r. gates(c-gateslawfirm. com Attorney for Plaintiff Francis A. Zulli, Esq. Law Offices of Wion Zulli & Seibert P.O. Box 1121 Harrisburg, PA 17108-1121 E-mail: wzs )-mindsprinq.0om Charles T. Young Of Counsel FlLeo- OFF/de OF 77f e: PleorvworW I0 Sep13 .2 ScP ? Oa.,b 0o . PA McNEES WALLACE & NURICK LLC Charles T. Young, Jr. Attorney ID No. 80680 P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 (717) 237-5397 (717) 260-1760 facsimile cyoung- Arnwn.com Attorneys for Defendants SANDRA S. KING, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, : PENNSYLVANIA V. DAVID E. WINSTON, D/B/A, NO. 10-4356 Civil INTERLINK SUPPLY, AND PROFESSIONAL SOLUTIONS, INC. Defendants PRAECIPE FOR LIS PENDENS TO THE PROTHONOTARY: Kindly index the above-captioned action as a lis pendens against the real property described below. BEING the same real estate which Chas. Adler & Son, Inc. by deed dated July 20, 1983, and recorded in Cumberland County, PA Deed Book Volume 30 Page 0221, granted and conveyed unto Wladimir S. King and Sandra S. King, husband and wife, and further described as follows: ALL the following described real estate, lying and being situate in Lower Allen Township, Cumberland County, Pennsylvania, bounded and limited as follows: 414.oo Pn ATr/ C? 83`fa I? * a+18 l 33 BEGINNING at a point in the centerline of the Old Route No. 15, said point being also 176 feet West of the centerline of Windsor Street; thence by lot now or late of Kenneth Williams South 32 degrees 45 minutes East, a distance of 250 feet to lands now or late of Lynn Farver; thence by same South 57 degrees 15 minutes West a distance of 125 feet to the point at lot now or late of Robert L. Swartz; thence by same North 32 degrees 45 minutes West a distance of 250 feet to a point in the centerline of Old Route No. 15; thence by same North 57 degrees 15 minutes East a distance of 125 feet to the Place of BEGINNING. KNOWN as 4609 Old Gettysburg Road (sometimes referred to as 4615 Old Gettysburg Pike or Road). BEING THE SAME PREMISES which Stanley D. Adler & Sons, Inc., by Articles of Merger approved and filed on January 9, 1968 with the Secretary of the Commonwealth of Pennsylvania was merged into and with Chas. Adler & Son, Inc., the surviving Corporation by Installment Sales Contract dated January 26, 1977 recorded in Miscellaneous Book Volume 227, Page 123, Cumberland County records, granted and conveyed an equitable interest with Edward C. Dettling and Patsy J. Dettling, his wife; and BEING THE SAME PREMISES which Edward C. Dettling and Patsy J. Dettling, his wife, Assign, Transfer, and set over to Chas. Adler & Son, Inc., all of their right, title and interest in and to said contract and said real estate dated November 23, 1979, recorded in Cumberland County Records, December 4, 1979, in Misc. Book 249, Page 574. 2 The undersigned hereby certifies that this action affects title to or other interest in the above-described real property. McNEES WALYA,CE ?JNUF}1CK By Charles T. Young, I.D. No. 80680 100 Pine Street, O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5397 (717) 260-1760 (fax) --and- Lemoyne, PA 17043 Albert J. Hajjar, Esq. Suite A, 1300 Market Street Date: September 10 , 2010 Attomeys for Defendants 3 CERTIFICATE OF SERVICE I, Charles T. Young, Jr. hereby certify that on this ?" daY of September 2010, a true and correct copy of the Answer with New Matter and Counterclaims and Praecipe for Lis Pendens were served by e-mail and U.S. first-class mail, postage prepaid, upon the following: Attorney for Plaintiff Lowell R. Gates, Esq. Gates, Halbruner, Hatch & Guise, PC 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 E-mail: I.r.gates egateslawfirm.com Attorney for Plaintiff Francis A. Zulli, Esq. Law Offices of Wion Zulli & Seibert P.O. Box 1121 Harrisburg, PA 17108-1121 E-mail: wzs(a)mindsgrinaAm Charles T. Your, Of Counsel William L. Adler, Esquire 4949 Devonshire Road Harrisburg, PA 17109 Phone: 717-652-8989 Fax: 717-307-3343 Email: bal@billadlerlaw.com Supreme Court ID: 39844 Sandra S. King, Plaintiff v. David E. Winston, d/b/a Interlink Supply and Professional Solutions, Inc., Defendants ~; ~ gip" ~ ~~ ~~i°~~~1~~~U'~'r'~ ZQ~~ eta ~ -8 f'~'~ 3~ l9i~iE~R ~~~`~~ U~~~T'~' IN THE COURT OF COMMON PLEAS Cumberland COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 10-4356 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of William L. Adler, Esquire, in the above matter as the attorney for the Plaintiff. William L. Adler, Esquire Attorney for Plaintiff 4949 Devonshire Road Harrisburg, PA 17109 717-652-8989 Supreme Court ID Number 39844 Bal@billadlerlaw. com October 5, 2010 ~~ n William L. Adler, Esquire 4949 Devonshire Rd. Harrisburg, PA 17109 Phone: 717-652-8989 Fax: 717-307-3343 Email: BAL@Bi1lAdlerLaw.com Supreme Court ID: 39844 C ~ C.~~v l `~'~rt~i".t, Sandra S. King, Plaintiffs v. IN THE COURT OF COMMON PLEAS Cumberland COUNTY, PENNSYLVANIA CIVIL ACTION -LAW David E. Winston, d/b/a Interlink Supply and : NO. 10-4356 Professional Solutions, Inc., Defendants : NOTICE TO PLEAD You are hereby notified to plead to the enclosed New Matter within Twenty (20) days from service hereof or a default judgment may be entered against you. Sandra S. King, Plaintiff v. David E. Winston, d/b/a Interlink Supply and Professional Solutions, Inc., Defendants IN THE COURT OF COMMON PLEAS Cumberland COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 10-4356 Civil REPLY TO NEW MATTER AND COUNTERCLAIM AND NEW MATTER IN RESPONSE TO COUNTERCLAIM AND NOW COMES the plaintiff, Sandra S. King, through her attorney, William L. Adler, and respectfully represents the following: 40. Denied. This is a conclusion of law to which no responsive pleading is required. By way of further answer thereto, whether or not the October 31, 2005 correspondence from Sandra King to David Winston constituted an offer, in that the terms of that correspondence are too vague to determine the nature of an offer, is a matter of law. 41. Denied. Whether or not the October 31, 2005 correspondence from Sandra King to David Winston constitutes an offer, in that the terms of that correspondence are too vague to determine the nature of an offer, is a matter of law. By way of further answer thereto, plaintiff and defendant were unable to agree on the amount of the down payment that defendant should pay under any long-term agreements sale, the length of the amortization of the loan from defendant to plaintiff, and other basic terms of the note and mortgage which could have constituted an agreement of sale. 42. Denied. Defendant characterized these payments as purchase installment payments. Plaintiff never agreed that these payments were payments to be made under an agreement of sale. Plaintiff always disagreed with the amount that defendant was paying after his lease expired. The amount that defendant was paying after the expiration of the lease was solely as a result of defendant's calculation. 43. Denied. Defendant mischaracterized the payments that were made. This characterization or amount was never agreed to by plaintiff. Defendant gave himself a $1,400.00 per month credit for rent allegedly received from the other building on the property by plaintiff. Plaintiff never received as much as $1,400.00 per month from this other tenant. By way of further answer thereto, the rent received by plaintiff from this other tenant on the property ended in May of 2009, and defendant never increased his monthly payment to plaintiff. 44. Denied. These payments were never considered installment payments by plaintiff. They were considered partial payments of rent as a holdover tenant. 45. Denied. This is a conclusion of law to which no responsive pleading is required. 46. Denied. Paragraph 20 of the lease states that Lessor shall grant to Lessee, a right of first refusal for the purchase of the property. There are no terms governing this right of first refusal, and when the parties entered into negotiations to try to establish those terms, they could not agree. Paragraph 20 of the agreement of lease did not grant defendant a right of first refusal to purchase the property in that the terms of the right of first refusal were to vague to be binding 47. Denied. This is a conclusion of law to which no responsive pleading is required. 48. Denied. This is a conclusion of law to which no responsive pleading is required. 49. Denied. This is a conclusion of law to which no responsive pleading is required. 50. Admitted in part and denied in part. It is admitted that Professional Solutions, Inc. is not a party to the lease. It is believed, and therefore averred, that Professional Solutions, Inc. occupies the leased premises, and therefore must give up possession of the premises due to the expiration of the lease. 51. Denied. This is a conclusion of law to which no responsive pleading is required. 2 52. Denied. This is a conclusion of law to which no responsive pleading is required. REPLY TO COUNTERCLAIM 1. Denied. Although this October 31, 20051etter represents the opening of a negotiation, the letter failed as a legal offer for the sale of the property in that crucial terms of the sale were not included in the letter. There was no term set for the amortization of the loan from the plaintiff to the defendant. In the letter, there was no mention of a down payment on the purchase price. There were no remedies set forth in the event of the default by the defendant under any agreement that might have been entered into between the parties. 2. Denied. Although the October 31, 2005 letter represents the opening of a negotiation, the letter failed as a legal offer for the sale of the property in that crucial terms of the sale were not included in the letter. In the letter there were no terms set for the amortization of the loan from the plaintiff to the defendant. In the letter there was no mention of a down payment on the purchase price. In the letter there were no remedies set forth in the event of the default by the defendant under any agreement that might have been entered into between the parties. Denied. This is a conclusion of law to which no responsive pleading is required. Although the October 31, 2005 letter represents the opening of a negotiation, the letter failed as a legal offer for the sale of the property in that crucial terms of the sale were not included in the letter. In the letter there were no terms set for the amortization of the loan from the plaintiff to the defendant. In the letter there was no mention of a down payment on the purchase price. In the letter there were no remedies set forth in the event of the default by the defendant under any agreement that might have been entered into between the parties. 4. Denied. This characterization of defendant payments as installment payments was never agreed to by the plaintiff. In fact, the plaintiff and defendant could never agree on the 3 terms of an agreement of sale. The amount paid by defendant as a holdover tenant was calculated by the defendant and was never agreed to by the plaintiff. 5. Denied. Although the plaintiff deposited defendant's checks, she treated the defendant as a holdover tenant who was actually in breach of the lease agreement because rent was not being paid pursuant to the lease agreement. COUNT I -QUIET TITLE 6. Denied. See above responses 7. Denied. This is a conclusion of law to which no responsive pleading is required. By way of further answer thereto, defendant does not hold title to the property. The property is titled in the name of the plaintiff. The plaintiff is not obligated to give defendants a purchase money mortgage in that the terms of the October 31, 2005 letter were merely the opening of a negotiation rather than an offer to purchase the property. The terms of that letter were too vague to constitute a formal legal offer. 8. Denied. The parties did not have an agreement. The terms of the October 31, 2005 letter were too vague to constitute a formal offer. It was more of an expression of an intent to negotiate an agreement of sale rather than constituting a formal offer. 9. Denied. This is a conclusion of law to which no responsive pleading is required. WHEREFORE, plaintiff respectfully requests that the lis pendens filed by the defendant be stricken, that the October 31, 2005 letter that defendant recorded in the office of the recorder of deeds of Cumberland County, Pennsylvania, without the permission of plaintiff be stricken from the record, that the court further order that defendant has no equitable or legal interest in the property and that the defendant be ordered to pay back rent as a result of defendant's holdover tenancy. COUNT II -BREACH OF CONTRACT 4 10. Denied. The above responses are incorporated herein by reference. 11. Denied. The plaintiff and defendant had no agreement of sale for all the reasons alleged in the above reply to defendant's counterclaim. 12. Denied. Defendant has failed to allege how defendant has been damaged by not having title to the property. By way of further answer thereto, defendant is not entitled to a deed to the property for all the reasons stated in the above reply. 13. Denied. After reasonable investigation the plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment. WHEREFORE, plaintiff respectfully requests that the lis pendens filed by the defendant be stricken, that the October 31, 20051etter that defendant recorded in the office of the recorder of deeds of Cumberland County, Pennsylvania without the permission of plaintiff be stricken from the record, that the court further order that defendant has no equitable or legal interest in the property and that the defendant be ordered to pay back rent as a result of defendant's holdover tenancy. COUNT III -DECLARATORY JUDGMENT 14. Denied 15. Admitted in part and denied in part. It is admitted that the defendant believes it has a legal or equitable interest in the Property and that plaintiff disagrees with this. There also is a disagreement as to the characterization of the payments made by defendant to plaintiff. 16. Denied. There was no legal offer from the plaintiff to the defendant for the property. The plaintiff always treated the defendant as a holdover tenant. The property is titled in the name of the plaintiff. Defendant holds no title to the property. 17. Denied. This is a conclusion of law to which no responsive pleading is required. Defendant has no ownership interest in the property. Defendant breached the lease by 5 holding over as a tenant. Defendant owes plaintiff back rent as a holdover tenant. Defendant was the only one who characterized his payments as installment payments. Plaintiff never agreed to any payments under an agreement of sale in that the parties could never agree on the crucial and specific terms of a long-term agreement of sale. 1 S. Denied. This is a conclusion of law to which no responsive pleading is required. WHEREFORE, plaintiff respectfully requests that the lis pendens filed by the defendant be stricken, that the October 31, 2005 letter that defendant recorded in the office of the recorder of deeds of Cumberland County, Pennsylvania, without the permission of plaintiff be stricken from the record, that the court further order that defendant has no equitable or legal interest in the property and that the defendant be ordered to pay back rent as a result of defendant's holdover tenancy. NEW MATTER IN RESPONSE TO COUNTERCLAIM 19. The plaintiff s responses to paragraphs 40 through 52 of defendants new matter as well as paragraphs 1 through 1$ of plaintiff's responses to defendant's counterclaim are incorporated herein by reference. 20. Although plaintiff's October 31, 20051etter to defendant is characterized as an offer of terms for the property purchase, the said document does not constitute a formal offer which, if accepted, would constitute an agreement of sale. 21. The terms of the October 31, 2005 letter are too indefinite to constitute a formal offer. 22. The October 31, 2005 letter fails to specify a down payment to be made by the defendant for the purchase of the property. 23. The October 31, 20051etter fails to specify the length of the amortization of the loan from plaintiff to defendant. 24. The October 31, 2005 letter fails to specify what occurs in the event of default under an 6 agreement by defendant. 25. The October 31, 2005 letter fails to specify who is responsible for taxes and insurance or proof of the same. 26. The October 31, 2005 letter can be more accurately characterized as an offer to open negotiations to discuss the purchase of the property by defendant. 27. The plaintiff and defendant could never agree on a specified term for the amortization of the mortgage. 28. The plaintiff and defendant could never agree on the amount of the down payment defendant was to pay under an agreement of sale. 29. The plaintiff and defendant disagreed as to how the rent from the separate tenant on another part of the property would be credited against any payments under an agreement of sale. 30. The characterization of payments made after the expiration of the Lease by defendant as installment payments was never agreed to by plaintiff. 31. Plaintiff never considered that defendant was making installment payments under any agreement. 32. All payments made by defendant to plaintiff were considered rent in that defendant was a holdover tenant. 33. Defendant failed to pay all rent due after the expiration of the Lease. 34. Defendant breached terms of the lease by failing to give plaintiff a certificate of insurance on the property, and by failing to prove that he had the heating and air-conditioning system serviced pursuant to the lease. 35. There was never a meeting of the minds between plaintiff and defendant regarding crucial terms for an agreement of sale for the property. 36. There is no contract between plaintiff and defendant for the sale of the property to defendant from plaintiff. 7 37. There is no legal obligation on the part of plaintiff to sell the property to defendant. 38. The lis pendens filed by defendant against the property clouds the title to the property. 39. Because there is no obligation on the part of plaintiff to convey the property to defendant, the lis pendens should be stricken. 40. In paragraph 4 of defendants answer, defendant stated that Professional Solutions, Inc. has an interest in the fictitious name known as Interlink Supply. 41. Due to Professional Solutions, Inc.'s interest in Interlink Supply, Professional Solutions, Inc. may have liability in this matter. WHEREFORE, plaintiff respectfully requests that the lis pendens filed by the defendant be stricken, that the October 31, 2005 letter that defendant recorded in the office of the recorder of deeds of Cumberland County, Pennsylvania, without the permission of plaintiff be stricken from the record, that the court further order that defendant has no equitable or legal interest in the property and that the defendant be ordered to pay back rent as a result of defendant's holdover tenancy. " " William L. Adler, Esquire Attorney for Plaintiff 4949 Devonshire Rd. Harrisburg, PA 17109 717-652-8989 Supreme Court ID Number 39844 BAL@Bi11Ad1erLaw.com October 5, 2010 8 VERIFICATION I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PLEADING ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S.A. Section 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. DATE: 9 CERTIFICATE OF SERVICE I, William L. Adler, Esquire, Attorney for Defendants, hereby certify on the !_,~ _day of ~~~~D ,~~ ~~_, 2010, I served a copy of the within Reply and New Matter upon the following person via email, addressed as follows: Charles T. Young, Jr. cyoung@mwn.com William L. Adler, Esquire 10 McNEES WALLACE &NURICK LLc Charles T. Young, Jr. Attorney ID No. 80680 P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 (717) 237-5397 (717) 260-1760 facsimile cyounpCa~mwn.com ~, ~ t £~ ~L['~~-f~t Flyp'~s=~ jok„f iT (j ~f ~~+ R s r f # ~ 'i 1. ^ ~;t~'~-tE~~rz~.~~P~~D t~~ ~`5d ~yf4rt+\. J..lta 4 f` ~t,s,,~ ~"~~.~~ .~f r, . ,. .,. Attorneys for Defendants SANDRA S. KING, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. DAVID E. WINSTON, D/B/A, NO. 10-4356 Civil INTERLINK SUPPLY, AND . PROFESSIONAL SOLUTIONS, INC. Defendants DEFENDANTS' REPLY TO NEW MATTER ASSERTED BY PLAINTIFF Defendants, by and through their attorneys McNEES WALLACE &NURICK PLC, hereby file this Reply to New Matter asserted by Plaintiff. In support thereof, Defendants state the following: REPLY TO NEW MATTER 19. This Paragraph contains no factual allegations to which a response is required. 20. This Paragraph states legal conclusions to which no response is required. To the extent a response is deemed necessary, the letter of October 31, 2005, is a document that speaks for itself, and Plaintiffs characterizations of, and/or selective quotations from that letter are denied. 21. This Paragraph states legal conclusions to which no response is required. To the extent a response is deemed necessary, the letter of October 31, 2005, is a document that speaks for itself, and Plaintiffs characterizations of, and/or selective quotations from that letter are denied. 22. The letter of October 31, 2005, is a document that speaks for itself, and Plaintiffs characterizations of, and/or selective quotations from that letter are denied. 23. The letter of October 31, 2005, is a document that speaks for itself, and Plaintiff s characterizations of, and/or selective quotations from that letter are denied. 24. The letter of October 31, 2005, is a document that speaks for itself, and Plaintiffs characterizations of, and/or selective quotations from that letter are denied. 25. The letter of October 31, 2005, is a document that speaks for itself, and Plaintiffs characterizations of, and/or selective quotations from that letter are denied. 26. This Paragraph states legal conclusions to which no response is required. To the extent a response is deemed necessary, the letter of October 31, 2005, is a document that speaks for itself, and Plaintiffs characterizations of, and/or selective quotations from that letter are denied. 27. Denied as stated. The parties agreed on a standard and customary schedule for the amortization of the mortgage. 28. Denied. The parties agreed that there would not be a down payment. 29. Denied. The parties reached an agreement as shown by Plaintiffs acceptance of Defendant's payments. 30. Denied. The parties reached an agreement on the sale and related payment terms. 31. Denied. The parties reached an agreement on the sale and related payment terms. 2 32. Denied. The parties reached an agreement on the sale and related payment terms. By way of further response, Plaintiffs characterization of events is incorrect and therefore, denied. 33. Denied. It is denied that any rent was due after the expiration of the Agreement of Lease. By way of further response, Plaintiffs characterization of events is incorrect and therefore, denied. 34. Denied. The Agreement of Lease is a legal document that speaks for itself, and Plaintiffs characterizations of, and/or selective quotations from that document are denied. By way of further response, it is denied that Defendant breached the terms of the Agreement of Lease in any way whatsoever. 35. Denied. The parties reached an agreement on the sale of the property and related payment terms. 36. Denied. The parties entered into a valid and binding contract for the sale of the property from Plaintiff to David Winston. 37. Denied. Plaintiff has a legal obligation to sell the property to David Winston. 38. Admitted. It is admitted that the lis pendens filed by Defendant clouds title to the property. By way of further response, the lis pendens is entirely justified. 39. Denied. Plaintiff has a legal obligation to convey the property to David Winston, and the lis pendens should not be stricken. 40. ~ Denied as stated. The Answer is a legal document that speaks for itself, and Plaintiffs characterizations of, and/or selective quotations from the Answer are denied. 3 41. This Paragraph states a legal conclusion to which no response is required. To the extent a response is deemed necessary, it is denied that Professional Solutions, Inc. is liable to Plaintiff. WHEREFORE Defendant David E. Winston requests that the Court award him a fee simple Deed to the property and bar Plaintiff Sandra S. King from asserting any right, lien, title or interest to the contrary. i McNEES WA ~CE N RICK LLc 1 By Charles T. Youn I.D. No. 80680 100 Pine Street, . O. Box 1166 Harrisburg, P 17108-1166 (717) 237-5397 (717) 260-1760 (fax) --and- Albert J. Hajjar, Esq. Suite A, 1300 Market Street Lemoyne, PA 17043 Date: November °t , 2010 Attorneys for Defendants 4 VERIFICATION Subject to the penalties of 18 Pa.C.S.A. § 4904 (relating to unswom falsification to authorities), I, pavid E. Winston, hereby certify that !have reviewed the foregoing Reply to New Matte, and the responses and allegations contained therein are true and correct to the best of my knowledge, information, and belief. t``.,--, avid E. ins#on Dated: ~ ~ , 2010 CERTIFICATE OF SERVICE N~ I, Charles T. Young, Jr., hereby certify that on this ~ day of November 2010, a true and correct copy of the foregoing Reply to New Matter was served by U.S. first- class mail, postage prepaid, upon the following: William L. Adler, Esq. Law Office of William L. Adler, Esquire 4949 Devonshire Road Harrisburg, PA 17109 Fax: 717-307-3343 E-mail: BAL~a_BiIlAdlerLaw.com (Attorney for Plaintiff) Charles T. Young r. Of Counsel to Sandra S. King, Plaintiff V. David E. Winston, d/b/a Interlink Supply and Professional Solutions, Inc., Defendants IN THE COURT OF COMMON PLEAS Cumberland COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-4356 c-a C rn c-a !V Co ?a z rrt? °' ca MOTION TO COMPEL DISCOVERY AND NOW COMES the plaintiff, through her attorney, William L. Adler, and respectfully represents the following: 1. Suit was filed to the above number by plaintiff on July 23, 2010. 2. Interrogatories and request for production of documents were served on defendants on November 9, 2010. 3. Plaintiff received defendants' responses on December 18, 2010. (Attached as Exhibit "A") 4. Defendants objected to answering 5, 6, 7, and 8 of the interrogatories and 1, 2, 3, and 4 of plaintiff's request for production of documents. 5. One of the primary issues in this case is whether the October 31, 2005 letter represents a formal offer for the defendant to purchase the Property. 6. As is set forth in plantiff's new matter in response to counterclaim, there are many crucial terms that are missing from the October 31, 2005 correspondence. 7. In the event the Court finds that this is actually an offer that was accepted by the defendants, additional agreement terms would have to be imputed into this document by the Court. 8. Whether defendants would actually be able to consummate an agreement of sale within the broad parameters of the October 31, 2005 correspondence is an issue that would have significant bearing on this matter. -1- 9. It would be a waste of Court time and the time of the parties to litigate this matter and to possibly have agreement of sale terms imputed on the parties only to discover that the defendant has no ability to consummate the agreement. 10. For these reasons the discovery requested in the interrogatories and requests objected to by defendants is relevant, and the said discovery should be answered completely. 11. The answers to interrogatory 14 are vague and incomplete and should be answered more fully. 12. Defendant has not concurred with this motion. WHEREFORE, Plaintiff respectfully requests that the relief requested in this moti n be granted. William Adler, sq r Attorney for Plaintiff 4949 Devonshire Road Harrisburg, PA 17109 717-652-8989 Supreme Court ID Number 39844 Bal@billadlerlaw.com December 20, 2010 -2- CERTIFICATE OF SERVICE I, William L. Adler, Esquire, Attorney for plaintiff, hereby certify on December 21, 2010, I served a copy of the within motion upon the following person via email at the following email address: cyoung@mwn.com Charles T. Young Jr. Esquire McNees, Wallace & Nurick, LLC 100 Pine Street Harrisburg, PA 17101 stn,. William L. Adler, Esquire -3- SANDRA S. KING, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, : PENNSYLVANIA V. DAVID E. WINSTON, D/B/A, NO. 10-4366 Civil INTERLINK SUPPLY, AND PROFESSIONAL SOLUTIONS, INC. Defendants DEFENDANTS' OBJECTIONS AND ANSWERS TO PLAINTIFF'S INTERROGATORIES AND OBJECTIONS AND RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS Defendants, by and through their attorneys McNEES WALLACE & NURICK LLC, hereby submit these Objections and Answers to Plaintiffs Interrogatories and Objections and Responses to Plaintiff's Request for Production of Documents. In support thereof, Defendants state the following: 1. Identify the person(s) answering or supplying information in answer to these interrogatories. David Winston and Charles Young 2. Identify any corporate, business or governmental agency supplying information in answer to these interrogatories. For any corporate entity, list the full address of the corporation, the date of incorporation, a full list of shareholders, officers and directors for the Corporation and the relationship between defendants and the Corporation. N/A. E'L A 3. Explain the arrangement that defendants had with Old Gettysburg Associates VI in relation to the potential purchase of 4609 Gettysburg Road. Old Gettysburg Associates sought to purchase the property from David Winston, but decided not to pursue the purchase when the economy suffered a downturn. Old Gettysburg Associates knew that Sandra King was the current property owner. However, Old Gettysburg Associates negotiated with David Winston because it believed the agreement between Plaintiff and Winston was legal and binding. Old Gettysburg Associates also liked the terms given to Winston by Plaintiff and sought an assignment of the terms of that agreement. 4. What role did a Mr. Walker play in relation to the purchase of 4609 Gettysburg Road. What was his relationship to Old Gettysburg Associates VI? Winston believes that Mr. Walker acted as a purchasing agent for Old Gettysburg Associates. 5. What funds does Mr. Winston currently have to make a down payment on 4609 Gettysburg Road? A) What is the source of these funds? B) Can Mr. Winston make a down payment in the amount of C)$50,000.00? D) $100,000.00? E) $150,000.00? Pursuant to the request for production of documents, please provide proof of fund availability. Objection. This Interrogatory seeks information that is confidential, personal, and sensitive. Objection is further made in that this Interrogatory seeks information that is irrelevant and beyond the scope of discovery. 6. What is Mr. Winston's current credit rating? Please provide proof of the same. Objection. This Interrogatory seeks information that is confidential, personal, and sensitive. Objection is further made in that this Interrogatory seeks information that is irrelevant and beyond the scope of discovery. 2 7. Have the defendants applied for any loans from any lending institutions in order to attempt to purchase the property from Sandra King? a) If so, what were the bank's proposed terms for said loans? Did the defendants get preliminary approval for said loans? b) Were the defendants rejected for any or all of said loans? c) If so what were the reasons for the rejections? Pursuant to the request for production of documents, please provide all correspondence received from all lenders to which applications or inquiries were made for the purchase of the Property. Objection. This Interrogatory seeks information that is confidential, personal, and sensitive. Objection is further made in that this Interrogatory seeks information that is irrelevant and beyond the scope of discovery. 8. Please list all personal assets of the defendants worth more than $5,000.00. In listing the assets, clearly identify them by description, account number, name of institution where held, or brokerage. List the value of each asset. Provide copies of all bank or brokerage statements pursuant to the request for production of documents. This should include all interests held in any other companies or businesses. Objection. This Interrogatory seeks information that is confidential, personal, and sensitive. Objection is further made in that this Interrogatory seeks information that is irrelevant and beyond the scope of discovery. 9. State the name, age, home and business address and telephone number of all persons you expect to call as expert witnesses either on liability or damages at the trial of the above captioned matter. Defendant does not yet know whether or who he will call to testify as an expert witness. When that decision is made, an appropriate report and curriculum vitae will be provided. 10. For all persons identified in the preceding interrogatory, state the following: (a) Their occupation and identify their present employer, or, if self- employed, the name and address of the business or occupation. (b) Whether or not they specialize in any particular field, and, if they so specialize, set forth their area(s) of specialization. Objection is made to the extent this Interrogatory seeks information beyond the scope of Pa.R.C.P. 4003.5. Without waiving this objection, Defendant does not yet know whether or who he will call to testify as an expert witness. When that decision is made, an appropriate report and curriculum vitae will be provided. 3 11. Set forth a summary of the grounds (other than the facts requested in the preceding interrogatories) for each opinion of the expert whose name is listed in answer to Interrogatory No. 9 above, including any textual materials upon which the expert witness will rely. For any such text, please identify the name of the text, the author, the edition, the year of publication and the page or pages of said text upon which the expert witness will rely. Objection is made to the extent this Interrogatory seeks information beyond the scope of Pa.R.C.P. 4003.5. Without waiving this objection, Defendant does not yet know whether or who he will call to testify as an expert witness. When that decision is made, an appropriate report and curriculum vitae will be provided. 12. State whether the facts and opinions listed in answer to Interrogatory No. 11 above are contained in a written report or memorandum. If so, identify any such documents. Objection is made to the extent this Interrogatory seeks information beyond the scope of Pa.R.C.P. 4003.5. Without waiving this objection, Defendant does not yet know whether or who he will call to testify as an expert witness. When that decision is made, an appropriate report and curriculum vitae will be provided. 13. State the name, home and business address and telephone numbers of all persons known to you, your agents or attorneys who have knowledge relating to the any facts pertaining to this case. The persons with relevant knowledge include David Winston and Sandra King. Mr. Winston may be contacted through counsel. 14. The following questions apply to Defendants' reply to new matter asserted by plaintiff. a. Paragraph 27 states that the parties agreed on an amortization schedule. i. What were the circumstances surrounding this agreement? The parties had discussions and exchanged documentation. ii. Was this agreement in writing? If so, please provide the writing. The parties' agreement is reflected in part, in written documentation that either has or will be provided. 4 b. Paragraph 28 states that the parties agreed that there would be no down payment. L What were the circumstances surrounding this agreement? The parties had discussions and exchanged documentation. ii. Was this agreement in writing? If so, please provide the writing. The parties' agreement is reflected in part, in written documentation that either has or will be provided. c. Paragraph 29 states that the parties reached agreement. i. What were the circumstances surrounding this agreement? The parties had discussions and exchanged documentation. ii. Was this agreement in writing? If so, please provide the writing. The parties' agreement is reflected in part, in written documentation that either has or will be provided. d. Paragraph 30 states that the parties reached agreement on the sale and related payment terms. L What were the circumstances surrounding this agreement? The parties had discussions and exchanged documentation. ii. Was this agreement in writing? If so, please provide the writing. The parties' agreement is reflected in part, in written documentation that either has or will be provided. 5 OBJECTIONS AND RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS Please produce the following: All documents in the possession, custody, or control of Defendant constituting, relating to, or pertaining to: (a) Those documents identified in response to Plaintiff(s) Interrogatories addressed to Defendant - First Set; (b) Those documents which Plaintiff requested Defendant to identify in Plaintiff(s) Interrogatories addressed to Defendant - First Set. (c) Those documents which Defendant intends to offer in evidence at the trial of this action. Objection. This Request seeks documents that are confidential, personal, and sensitive. Objection is further made in that this Request seeks documents that are irrelevant and beyond the scope of discovery. Without waiving these objections, please see enclosed documents bate-stamped WIN0001 to WIN0040. 2. Copies of federal income tax returns for the defendants for the years 2005 to 2010 inclusive. Objection. This Request seeks documents that are confidential, personal, and sensitive. Objection is further made in that this Request seeks documents that are irrelevant and beyond the scope of discovery. 3. Copies of all bank and brokerage statements requested in the interrogatories. Objection. This Request seeks documents that are confidential, personal, and sensitive. Objection is further made in that this Request seeks documents that are irrelevant and beyond the scope of discovery. Objection is further made in that this Request would impose undue burden and expense. 6 4. Copy of current credit report for defendants. Objection. This Request seeks documents that are confidential, personal, and sensitive. Objection is further made in that this Request seeks documents that are irrelevant and beyond the scope of discovery. 5. All expert opinions, expert reports, expert summaries or other writings of experts in the possession, custody or control of Defendant or Defendant(s) attorneys or insurers, which relate to the subject matter of this litigation and the incident in question. Objection to the extent this Request seeks documents beyond the scope of Pa.R.C.P. 4003.5. Objection is further made to the extent this Request seeks documents protected by the attorney-client privilege or work product doctrine. Without waiving these objections, Defendant does not yet know whether or who he will call to testify as an expert witness. When that decision is made, an appropriate report and curriculum vitae will be provided. 6. All documents prepared by Defendant or by any insurers, representatives, agents, or anyone acting on behalf of Defendant, except Defendant'(s) attorneys, during an investigation of any aspect of the incident in question. Such documents shall include any documents made or prepared up through the present time, with the exclusion of mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics. (NOTE: As referred to herein, "documents" includes written, printed, typed, recorded or graphic matter, however produced or reproduced, including correspondence, telegrams, other written communications, data processing storage units, tapes, contracts, agreements, notes, memoranda, analysis, projections, indices, work papers, studies, reports, surveys, diaries, calendars, films, photographs, diagrams, drawings, minutes of meetings or any other writings [including copies of the foregoing, regardless of whether the party to whom this request is addressed is now in the possession, custody, or control of the original] now in the possession, custody, or control of Defendant, Defendant(s) former or present counsel, agents, employees, officers, insurers, or any other persons acting on Defendant(s) behalf) Objection is made to the extent this Request seeks documents protected by the attorney-client privilege or work product doctrine. Objection is further made to the extent this Request seeks documents beyond the scope of Pa.R.C.P. 4003.5. Without waiving these objections, please see enclosed documents bate- stamped WI N0001 to WIN0040. 7 7. All documents, materials, or physical evidence which Defendant intends to offer as exhibits at the trial of this matter, if not already provided in response to Category Ic. Defendant does not yet know what documents he may offer as exhibits at the trial of this matter. The exhibits may include any of the enclosed documents or other documents produced in discovery. 8. Please provide copies of all documents that you intend to use at the deposition of the Plaintiff. Should those documents not be provided prior to the deposition of the Plaintiff then questions will not be permitted in that regard. Defendant does not yet know what documents he may use at any deposition in this matter. Those documents may include any of the enclosed documents or other documents produced in discovery. McNEES W CE & NURI LLC J? By Charles T. Youn , Jr. I.D. No. 80680 100 Pine Street, P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5397 (717) 260-1760 (fax) -- and - Albert J. Hajjar, Esq. Suite A, 1300 Market Street Lemoyne, PA 17043 + -? Date: December / , 2010 Attomeys for Defendants 8 VERIFICATION Subject to the penalties of 18 Pa.C.S.A. § 4904 (relating to unswom falsification' to authorities), I, David E. Winston,* hereby certify, that I have reviewed the foregoing responses to Plaintiffs discovery requests, and the responses and information provided therein, are true and correct to the best :of my knowledge, information, and belief. avid Winston Dated: December ?? , 2010 CERTIFICATE OF SERVICE I, Charles T. Young, Jr., hereby certify that on this ? _ day of December 2010, true and correct copies of the foregoing Objections and Answers to Plaintiffs Interrogatories and Objections and Responses to Plaintiffs Request for Production of Documents (together with documents bate-stamped WIN0001 to WIN0040) were served by U.S. first-class mail, postage prepaid, upon the following: William L. Adler, Esq. Law Office of William L. Adler, Esquire 4949 Devonshire Road Harrisburg, PA 17109 Fax: 717-307-3343 E-mail: BALCaD-BillAdlerLaw.com (Attorney for Plaintiff) Charles T. Young, Of Counsel to D 6 William L. Adler, Esquire 4949 Devonshire Road Harrisburg, PA 17109 Phone: 717-652-8989 Fax: 717-307-3343 Email: bal@billadlerlaw.com Supreme Court ID: 39844 Sandra S. King Plaintiff V. David E. Winston, d/b/a Interlink Supply and Professional Solutions, Inc., Defendants ORDER NO. 10-4356 AND NOW, this day of ",ur , 20upon consideration of the foregoing motion, it is hereby ordered that (1) a rule is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; (2) the respondent shall file an answer to the motion within days of this date; (3) the motion shall be decided under Pa.R.C.P. No¢ (4) depositions shall be completed within 60 days of this date; µrK. (5) argument shall be held on Jkol-w I A&AA 20-A---, in Courtroom 5 of the Cumberland County Courthouse; and (6) notice of the entry of this order shall be provided to all parties by the petitioner. B ouI ' J. Distribution: William L. Adler,, 4949 Devonshire Road, Harrisburg, PA 17109,bal@billadlerlaw.com JAN 05 2011 IN THE COURT OF COMMON PLEAS Cumberland COUNTY, PENNSYLVANIA CIVIL ACTION - LAW b?io I orb Charles T. Young, Jr., McNees, Wallace & Nurick, LLC, 100 Pine Street, Harrisburg, PA 17101, cyoung@mwn.com McNEES WALLACE & NURICK LLC Charles T. Young, Jr. Attorney ID No. 80680 P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 (717) 237-5397 (717) 237-5300 facsimile cyounaftmwn.com PLED-OM CE OF THE PROTHONOTARY 2011 JAN 24 AM 11: 59 CUMBERLAND LAN A TY Attorneys for Defendants SANDRA S. KING, Plaintiff, : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA V. DAVID E. WINSTON, D/B/A INTERLINK SUPPLY and PROFESSIONAL SOLUTIONS, INC., Defendants. NO. 10-4356 CIVIL CIVIL TERM DEFENDANTS' ANSWER TO MOTION TO COMPEL FILED BY PLAINTIFF SANDRA S. KING Pursuant to the Court's Order of January 6, 2011, Defendants, by and through their attorneys McNEES WALLACE & NURICK LLC, hereby file this Answer to Plaintiffs Motion to Compel. In response to Plaintiffs allegations, Defendants respond as follows: 1. Denied. It is denied that Plaintiff filed suit on July 23, 2010. The Complaint bears a date-stamp of July 1, 2010. 2. It is admitted that Plaintiff e-mailed interrogatories and document requests to Defendants on November 9, 2010. 3. It is admitted that Plaintiff received Defendants' discovery responses on or about December 18, 2010. By way of further response, Plaintiff has attached Defendants' discovery responses (but not the documents produced) to her Motion to Compel. 4. It is admitted that Defendants objected to interrogatories #5, 6, 7 and 8, and document requests #1, 2, 3, and 4. By way of further response, Defendants' objections were entirely proper and justified. Plaintiff sought information that was confidential, irrelevant to the issues in litigation, and burdensome to produce, including information regarding Defendants' financial status, credit rating, contact with lending institutions, personal assets, tax returns, brokerage statements, and credit reports. 5. It is admitted that the legal effect of the October 31, 2005 document is an important issue in the case. By way of further response, Defendants' financial status, credit rating, and personal assets are entirely irrelevant to the Court's interpretation of that document. 6. It is admitted that Plaintiff has claimed that the October 31, 2005 document lacked necessary terms. It is denied that this claim possesses any merit. By way of further response, Defendants' financial status, credit rating, and personal assets are entirely irrelevant to whether the October 31, 2005 document contains the necessary terms. 7. Denied as stated. The parties' conduct, written correspondence, and oral statements can form the basis of the agreement. 8. Denied as stated. The parties' agreement included a purchase money mortgage, and Defendant clearly does possess the financial wherewithal to honor the agreement as he is presently making the payments required under the agreement's terms. For her part, Plaintiff denies that the parties entered into any sort of agreement for the sale of the property. Consequently, through her Motion, Plaintiff seeks the production of information that is irrelevant to either party's claims. By way of further 2 response, this is not a collection action. Defendants' financial condition is neither relevant to the determination of whether the parties entered into a binding agreement, nor an element of any other claim asserted in the litigation. 9. Denied as stated. Initially, Defendant clearly does possess the financial wherewithal to honor the agreement as he is presently making the payments required under the agreement's terms. Consequently, there is no possibility that the scenario described by Plaintiff will occur. By way of further response, the production of the requested information would not save one minute of the Court's time, and it certainly would not affect the period of litigation. For example, Plaintiff seeks information regarding Defendants' credit rating. People with poor credit ratings enter into binding contracts on a daily basis. The information sought by Plaintiff would not affect the likelihood of summary judgment, and the case would proceed to trial regardless of whether Plaintiff acquires the information, and regardless of whether Defendants have good or poor credit. Plaintiffs discovery requests serve no purpose other than to harass Defendants. 10. Denied. The financial information sought by Plaintiff is not relevant, and the Pennsylvania Rules of Civil Procedure implicitly recognize this fact. For example, under Pa.R.C.P. 4003.7, "A party may obtain information concerning the wealth of a defendant in a claim for punitive damages only upon order of court setting forth appropriate restrictions as to the time of the discovery, the scope of the discovery, and the dissemination of the material discovered." Here, Plaintiff improperly seeks information regarding the wealth of the Defendants (1) without a claim for punitive damages (or any other claim that would justify Plaintiffs discovery requests) and (2) without any proposed 3 restrictions as to the time of the discovery, the scope of discovery, or the dissemination of the material discovered. 11. Denied. Defendants provided a sufficient response to interrogatory #14. If Plaintiff wants additional detail, then her counsel can simply ask Defendant David Winston at his deposition presently scheduled for February 8, 2011. 12. It is admitted that Defendants did not concur with Plaintiffs Motion to Compel. By way of further response, the Motion is unwarranted and unjustified. WHEREFORE Defendants request that the Court deny in its entirety the Motion to Compel filed by Plaintiff in this matter. Mc By Harrisburg, PA 17108-1166 (717) 237-5397 (717) 260-1760 (fax) -- and - Albert J. Hajjar, Esq. Suite A, 1300 Market Street Lemoyne, PA 17043 Date: January1, 2011 Attomeys for Defendants 4 CERTIFICATE OF SERVICE I, Charles T. Young, Jr., hereby certify that on this X day of January 2011, a true and correct copy of Defendants' Answer to Plaintiffs Motion to Compel was served by U.S. first-class mail, postage prepaid, upon the following: William L. Adler, Esq. Law Office of William L. Adler, Esquire 4949 Devonshire Road Harrisburg, PA 17109 Fax: 717-307-3343 E-mail: BALCaD-BillAdlerLaw.com (Attorney for Plaintiff) Charles T. Young, A Of Counsel to THE 11 William L. Adler, Esquire 4949 Devonshire Road Harrisburg, PA 17109 Phone: 717-652-8989 Fax: 717-307-3343 Email: bal@billadlerlaw.com Supreme Court ID: 39844 Sandra S. King Plaintiff V. David E. Winston, d/b/a Interlink Supply and Professional Solutions, Inc., Defendants i i IN THE COURT OF COMMON PLEAS Cumberland COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-4356 PRAIkCIPE TO WITHDRAW MOTION To the Prothonotary: Please withdraw the discovery motion of plaintiff filed on December 28, 2010 in the above matter. - qlL 4L. - Wi liam L. Adler, Esquire Attorney for Plaintiff 4949 Devonshire Road Harrisburg, PA 17109 717-652-8989 Supreme Court ID Number 39844 Bal&billadlerlaw.com Dated: March 8, 2011 OT ?.i:`G? PiCE i r'R1THONO1AfY PRA CIPE FOR LISTING CASE F T I I JUL 25 PM "13 (Must be typewritten and submitted in triplicatef UMBERLA'ND COUNTY PENNSYLVANIA TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. for trial without a jury. -- - ----- - - -------------------------- - ------------------------- - ------ - ------------------ - -- - -- - ---------- CAPTION OF CASE (entire caption must be stated in full) (check one) Civil Action - Law Sandra S. King El Appeal from arbitration (other) (Plaintiff) VS. The trial list will be called on August 23, 2011 David E. Winston, d/b/a Interlink Supply, and Professional Solutions, Inc., Defendants and Trials commence on September 19, 2011 Pretrials will be held on September 7, 2011 -1 (Briefs are due S days belle. -1 No. 10-4356 Civil Term Indicate the attorney who will try case for the parry who files this praecipe: William L. Adler, Esq. representing plaintiff 4949, Devonshire Road, Harrisburg, PA 17109, 717-652-8989; bal@billadlerlaw.com Indicate trial counsel for other parties if known: Charles Young, Esq., attorney for defendants 100 Pine Street, Harrisburg, PA 17101 717-232-8000 This case is ready for trial. Signed: A& 01 F 4z Print Name: William L. Adler Date: dJuly 20, 2011 I Attorney for: Plaintiff CLfwk EILEU-iii= FIC" McNEES WALLACE & NURICK LLc Charles T. Young, Jr. Attorney ID No. 80680 P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 (717) 237-5397 (717) 237-5300 facsimile cyounq(&-mwn.com 2011 JUL 25 PM 2: 2 G CUMBERLAND COUNT", PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA SANDRA S. KING, Plaintiff, V. DAVID E. WINSTON, D/B/A INTERLINK SUPPLY and PROFESSIONAL SOLUTIONS, INC., Defendants. NO. 10-4356 CIVIL CIVIL TERM DEMAND FOR JURY TRIAL Defendants, by and through their attorneys McNEES WALLACE & NURICK LLC, hereby demand a jury trial. McNEES WA 1 ACE & NURICK PLC r By Attorneys for Defendants Charles T. Yoij esquire Attorney I. D. N 80680 P. O. Box 116 100 Pine Street Harrisburg, PA 17108-1166 (717) 237-5397 (717) 260-1760 Attorneys for Defendants Dated: July zZ 2011 1 CERTIFICATE OF SERVICE 0 Charles T. Young, Jr., hereby certify that on this?- day of July 2011, a true and correct copy of the foregoing Demand for Jury Trial was served by e-mail and U.S. first-class mail, postage prepaid, upon the following: William L. Adler, Esq. Law Office of William L. Adler, Esquire 4949 Devonshire Road Harrisburg, PA 17109 Fax: 717-307-3343 E-mail: BAL BillAdlerLaw.com (Attorney for Plaintiff) Charles T. Young r' Of Counsel to SANDRA S. KING, PLAINTIFF V. DAVID E. WINSTON, D/B/A INTERLINK SUPPLY AND PROFESSIONAL SOLUTIONS, INC., DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVIWIA ' M r? r co CD NO. 10-4356 CIVIL - ORDER OF COURT AND NOW, this 8th day of August, 2011, the non jury trial in the above referenced case has been assigned to this Court. Prior to setting an actual trial date, IT IS HEREBY ORDERED AND DIRECTED that the parties in this case file a pre-trial memorandum with the Court on or before September 7, 2011, in the following format: 1. A concise statement of factual issues to be decided at trial. II. A list of witnesses the party intends to call at trial along with a concise statement of their anticipated testimony. III. A list of all exhibits each party anticipates presenting at trial. IV. A statement of any legal issues each party anticipates being raised at trial along with copies of any cases which may be relevant to resolution of the stated issue. V. An estimate of the anticipated time needed for the party to present its case. Upon receipt and review of these memorandums, the Court will set a trial date for this case. By the Court, M. L. Ebert, Jr., ? William L. Adler, Esquire Attorney for Plaintiff ie*O?? ( OOP SIQI Ito /Charles Young, Esquire Attorney for Defendants bas SANDRA S. KING, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V ? n -- . --i DAVID E. WINSTON, D/B/A ?m rn -V r?F INTERLINK SUPPLY AND =; N -on PROFESSIONAL SOLUTIONS, INC.: -° DEFENDANTS NO. 10-4356 CIVIL, 33D C=` ?.,.C E5 c-; ,sue°c ORDER OF COURT AND NOW, this 12t' day of September, 2011, the non-jury trial in the above captioned case will be held on Thursday, February 9, 2012, at 9:00 a.m. and Friday, February 10, 2012 at 9:30 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, 'William L. Adler, Esquire Attorney for Plaintiff Charles Young, Esquire Attorney for Defendants bas M. L. Ebert, Jr., J. q?a? u 00 MCNEES WALLACE & NURICK LLC Debra P. Fourlas Attorney ID No. 62047 P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 (717) 237-5201 telephone (717) 260-1692 facsimile dfourlas(a-mwn.com '-IL E0 201 12FEB23 AN 11: 47 LUVIBERLA€rD COUNT;" PENNSYLVANIA Attorneys for Defendants SANDRA S. KING, Plaintiff, V. DAVID E. WINSTON, D/B/A INTERLINK SUPPLY and PROFESSIONAL SOLUTIONS, INC., Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-4356 CIVIL CIVIL TERM SUBSTITUTION OF APPEARANCE TO THE PROTHONOTARY: Kindly substitute my appearance for that of Charles T. Young, Jr. as counsel of record for Defendants in the above matter. MCNEES WALLACE & NURICK LLC BY Debra P. Fourlas Attorney I.D. No. 62047 100 Pine Street, P. O. Box 1166 Harrisburg, PA 17108-1166 Phone: (717) 237-5201 Fax: (717) 260-1692 E-mail: dfourlas -mwn.com Attorneys for Defendants Dated: February 20, 2012 CERTIFICATE OF SERVICE I certify that on this date, a true and correct copy of the foregoing document is being served by U.S. mail, first-class postage prepaid, upon the following: William L. Adler, Esquire LAw OFFICE OF WILLIAM L. ADLER 4949 Devonshire Road Harrisburg, PA 17109 Fax: 717-307-3343 E-mail: BALCaD-BillAdlerLaw.com (Attorney for Plaintiff) Debra P. Fourlas Of Counsel for Defendants Dated: February 20, 2012 SANDRA KING, Plaintiff V DAVID WINSTON, d/b/a INTERLINK SUPPLY and PROFESSIONAL SOLUTIONS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 10-4356 CIVIL TERM ?i IN RE: NON-JURY TRIAL ORDER OF COURT CwD AND NOW, this 9th day of February, 2012, after non-jury trial in the above-captioned matter, IT IS HEREBY ORDERED AND DIRECTED that a transcript of these proceedings shall be prepared and filed with the parties. IT IS FURTHER ORDERED AND DIRECTED that 30 days following the filing of the transcript the parties shall submit to the court proposed Findings of Fact, Conclusions of Law and a proposed verdict order, and any briefs they feel important in addressing any legal questions presented in the trial. By the Court, William L. Adler, Esquire For the Plaintiff ?A ?' - M. L. Ebert, Jr., J. Charles T. Young, Jr., Esquire For the Defendant : mtf a. led y/S?/;z ?^?,e, ?? L U SANDRA KING, Plaintiff V DAVID WINSTON, d/b/a INTERLINK SUPPLY and PROFESSIONAL SOLUTIONS, INC., Defendant IN RE: NON-JURY TRIAL L TN C'.'`% YCIN PLEAS OF UM??r;' I AN' CGU'LJTY, PENNSYLVANIA 10-4356 CIVIL TERM Proceedings held before the HONORABLE M. L. EBERT, Jr., J., Cumberland County Courthouse, Carlisle, Pennsylvania, on February 9, 2012, in Courtroom Number 2. APPEARANCES: WILLIAM L. ADLER, Esquire For the Plaintiff CHARLES T. YOUNG, JR., Esquire For the Defendant t cn - rC? _ p I> i75 C r, t: w • • INDEX TO WITNESSES WTTNESS PAGE 1 - Sandra S. King Direct examination by Mr. Adler Cross-examination by Mr. Young 2 - David Winston Direct examination by Mr. Young Cross-examination by Mr. Adler Redirect examination by Mr. Young INDEX TO EXHIBITS 7 58 98 133 167 FOR THE PLAINTIFF IDENTIFIED ADMITTED 1 - 10/24/05 copy o f lease 10 98 2 - 10/31/05 Offer of Terms for Property Pu rchase 13 98 3 - 03/01/07 Deardo rff leas e 15 98 4 - 02/19/08 letter King to Winston 17 98 5 - 06/11/08 letter Winston to King 19 98 6 - 08/01/08 King - Winston document 20 98 7 - 08/13/08 letter King to Walker 23 98 8 - 09/30/08 letter King to Winston 24 97 9 - 09/30/08 letter King to Palumbo 26 98 10 - 10/17/08 letter Miller to King 27 98 11 - 10/20/08 letter King to Miller 28 98 12 - 10/31/08 letter King to Miller 29 98 13 - 11/01/08 letter King to Winston 30 98 14 - 11/01/08 letter King to Miller 31 98 2 • INDEX TO EXHIBITS FOR THE PLAINTIFF • (Continued) IDENTIFIED ADMITTED 15 - 11/03/08 copy of FAX Miller to King 32 98 16 - 11/03/08 letter King to Miller 32 98 17 - copy of FAX Miller to King 33 98 18 - 11/4/08 FAX Miller to King 34 98 19 - 11/05/08 letter King to Miller 35 98 20 - 11/17/08 letter Miller to King 36 98 21 - 11/20/08 letter King to Miller 37 98 22 - 11/21/08 letter King to Miller 39 98 23 - Bank letter - Palumbo mortgage 39 98 24 - FAX dated 11/06/09 King to W. 40 98 25 - 06/29/09 Guise to Miller letter 41 98 26 - 5 page real estate agreement 43 98 27 - 04/08/10 Cass to King letter 47 98 28 - Property Progress report 48 98 31 - Chart printout 52 98 FOR THE DEFENDANT 9 - 01/27/10 Winston to King letter 167 168 12 - Payments Winston to King 121 168 13 - Winston calculations 123 168 17 - 10/11/05 King to Winston letter 65 168 19 - 10/24/05 documents re UGI & PPL 71 168 20 - 10/27/05 Winston to King letter 74 168 21 - Building plans 105 168 3 1 Thursday, February 9, 2012 2 Courtroom Number 2 - 9:00 a.m. 3 THE COURT: This is the matter of Sandra King 4 versus David Winston. Are the parties ready to proceed? 5 MR. ADLER: Yes, we are. 6 MR. YOUNG: Yes, Your Honor. 7 THE COURT: Anyone like to give an opening 8 argument? 9 MR. YOUNG: I would, Your Honor. 10 MR. ADLER: I would as well. 11 THE COURT: Who would like to go first? 12 MR. YOUNG: The plaintiff -- 13 THE COURT: The plaintiff goes first. 14 MR. ADLER: Your Honor, this case involves a 15 three year lease. Starting November of 2005, Mr. Winston 16 was renting this co mmercial property for three years at a 17 rental of $3500.00 a month. 18 The main issue in the case involves two 19 paragraphs in the l ease. One said that he would have a 20 right of first refu sal. The other said he had to notify the 21 plaintiff within 90 days of the expiration of the lease 22 whether he was inte rested in purchasing this or not. 23 Then there was a separate document dated 24 October 31st, well, five or six days later, that my client 25 drafted herself and termed offers of term to purchase, which 4 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 set out some basic parameters of what might happen at the end of this transaction after three years expired, to start the negotiations concerning Mr. Winston's possible purchase of this property. The issue here is how, whether that agreement was binding. Our position is no. It was the start of a negotiation and it was too indefinite. It didn't have the language granting an option conveying anything like that. It was just pretty much an expression of intent. So then most of our exhibits involve just the parties trying to come to a meeting of the minds on terms that were very important to my client. That didn't happen, and that is why we are here now. THE COURT: Okay. MR. YOUNG: Your Honor, this is a rent to own situation. The plaintiff wants to honor the rent. They don't want to honor the own part of the deal that was reached. In fact, his opening argument indicates the same. The lease references the possibility of a purchase on numerous occasions throughout the lease. It gives Mr. Winston the right of first refusal, and it holds his ability to purchase the property open. Despite all that, that was not sufficient for Mr. Winston. To protect his interests he demanded a separate document. That document, the offer, gives the 5 • J 1 total purchase price of $600,000.00. It gives Mr. Winston 2 an offset of a thousand dollars per month for the 36 months 3 of the lease so that the total purchase price becomes 4 $564,000.00. It provides a mortgage interest rate of five 5 percent and i t provides the basis for the parties' contract. 6 Now, this is a three year lease. So what 7 happened is over the course of time Mr. Winston, in reliance 8 on the offer, moves in, makes numerous alterations to the 9 property, incurs substantial expense in doing so. 10 Over the course of time there were two 11 tenants on the property. And there were, there was 12 animosity between the tenants concerning parking and 13 concerning snow removal. Mrs. King became friends with the 14 other tenant, Kelly Deardorff, Palumbo after she got 15 married, and took her side in the fight between the two 16 tenants. So she not only became Kelly' s friend, she became 17 very hostile towards Mr. Winston. 18 Towards the end of the lease the market 19 improved and, frankly, she got older and her perspective on 20 life changed. So that. when Mr. Winston pursuant to the 21 terms of the lease actually excised his ability to purchase 22 the property, she refused to honor it. Suddenly after he 23 exercises his ability to purchase the p roperty, accepted her 24 offer, she is demanding a down payment, which that was not 25 part of the d eal. No down payment was required. She is 6 • • 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 adding additional terms to the parties' agreement that didn't exist in the contract between them at the time. So the bottom line here is there was an agreement between the parties and she has to honor it. THE COURT: Thank you. Mr. Adler, call your. first witness. MR. ADLER: Call Sandra King. THE COURT: Come up here, ma'am. Whereupon, SANDRA S. KING having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. ADLER: Q Mrs. King, would you please state your full name? A Yes. Sandra S. King. Q Your address? A 915 Whisler Road, Etters, Pennsylvania. Q What is your age? A I am 66. Soon to be 67. Q Now, just so the Court understands, you have an oxygen tank with you. A Yes. Q That is due to what conditions? A I have emphysema and COPD. 7 • • 1 MR. ADLER: I am sure the Court would 2 understand if she needs a break we can take a break? 3 THE COURT: That is fine. 4 BY MR. ADLER: 5 Q Although your physical capability is 6 impaired, your mental capabilities are not impaired by the 7 conditions or the oxygen. Are they? 8 A No. 9 Q Are you comfortable now? 10 A Yes. 11 Q You are retired currently. Right? 12 A Yes. 13 Q What was your last occupation? 14 A My husband and I had a manufacturing business 15 for years for solar window products. And we also had 16 another busine ss, home improvement business for a number of 17 years. 18 Q What real estate do you currently own? 19 A I own the property at 4609 Gettysburg Road. 20 I own my home. Adjacent to my home, a stable property with 21 eight acres and a two and a half acre lot. And I am selling 22 another property on a sales agreement. 23 Q Besides that real estate ownership have you 24 owned other real estate over the years? 25 A We owned a place on Skyport Road in 8 C7 • 1 Mechanicsburg. It was our first house. That goes back to 2 the '70's. 3 Q That is pretty much the extent of your real 4 estate experience? 5 A Yes. 6 Q But you have been managing this building at 7 4609 Gettysburg Road since when? 8 A We purchased the property in the '70's. It 9 was -- there is two buildings on the property. Initially WE 10 used the building that was there. And then in the early 11 '80's, probably 1981, we started construction on the 12 building which Dave occupies now, the large building. 13 Q Now, how did you first come into contact with 14 Mr. Winston? 15 A I had phoned three people to come in and givE 16 me an estimate for clean up of carpeting and flooring in my 17 business. After the last tenant left, they left quite a big 18 mess. One of those gentlemen obviously told him, was buying 19 supplies from him in his other location, and told him about 20 the property. 21 Q So as far as -- so did he call you, did you 22 call him? 23 A He would have had to call me because I didn't 24 know who he was at the time or have a phone number for him. 25 Q So he called you and then you started talking 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 about him leasing the property at 4609? A Yes. He came over to see it. I was in there for weeks basically cleaning up, interior and outside. Q Through the course of your discussions you ended up entering into a lease agreement? A Correct. Yeah. He was a little hesitant, but finally made his decision. He was asking about whether he could afford to rent it. We talked. I said, well, if all goes well for you, maybe at the end of this lease term you can purchase the property if you are able to afford it. (Whereupon, Plaintiff Exhibit No. 1 was marked for identification.) BY MR. ADLER: Q You have in front of you what we have labeled Exhibit P-1? A Yes. Q Is that a copy of the lease that you and Mr. Winston entered into October of 2005, October 24th? A Q A Q A Q Yes. What was the monthly rental amount? 3500. What was the term of the lease? Three years. He paid his rent regularly through that term. 10 • • 1 Correct? 2 A Yes, he did. 3 Q Now, if you turn to paragraph 20 page 8? 4 A Okay. 5 Q You drafted this lease. Correct? 6 A Yes. 7 Q Without the help of an attorney? 8 A Yeah, an. attorney wasn't involved. 9 Q And Mr. Winston did not have an attorney at 10 that -- 11 A Not that I know of. 12 Q He did not have an attorney involved -- you 13 never received feedback from his attorney on the contents of 14 this lease? 15 A No. 16 Q So you drafted this paragraph 20? 17 A Basically it was some parts of this was in a 18 lease that belonged to a commercial investor realty some 19 years back. 20 Q So you picked parts of this lease from that 21 form? 22 A Correct. 23 Q Did you pick up paragraph 20 from that form, 24 do yo u remember? 25 A No. I am sure I added that because their 11 • 1 lease did not, I don't believe, include that. 2 Q So what is your understanding of paragraph 3 20? 4 A Well, for me, it is offering him the first 5 option before anybody else to buy the property if he could 6 afford it at the end of three years. 7 Q But this doesn't have the terms in it? 8 A No. 9 Q This paragraph 20 doesn't include any terms? 10 A No. 11 MR. YOUNG: Objection. He is leading the 12 witness. 13 THE COURT: Sustained. 14 BY MR. ADLER: 15 Q Does paragraph 20 include any specific terms? 16 A No. 17 Q Turn to the next page, page 9, paragraph 24. 18 What was your understanding of paragraph 24? 19 A Well, he had this option of three ways to go 20 here or sever al ways to go here, that he could leave the 21 property, not renew his lease, he could purchase the 22 property if h e was able, and he was to give me 90 days 23 notice prior to the expiration of the lease. 24 Q Of his intent? 25 A Correct. 12 r? n u 1 Q Does paragraph 24 set out any terms of 2 purchase after the expiration of the agreement? 3 A No. 4 Q Would you turn to the next exhibit, Exhibit 5 2? 6 (Whereupon, 7 Plaintiff Exhibit No. 2 8 was marked for identification.) 9 MR. YOUNG: Are you going to move to admit 10 that into evide nce? 11 MR. ADLER: I thought at the end. 12 MR. YOUNG: Okay. 13 BY MR. ADLER: 14 Q Do you recognize Exhibit 2? 15 A Yes. 16 Q Would you explain the background to this 17 exhibit? 18 A Well, when he was in there one question he 19 asked me, if he would be able to afford to purchase this 20 property at the end of three years, if I would consider a 21 five percent in terest rate. And I thought about it and it 22 wasn't a lot. It wasn't high, but it was enough. I offered 23 him the thousan d dollars credit per month for three years. 24 Basically as an incentive to purchase the property at the 25 end of the time , plus also to take care of the property. 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 Because I have experienced so much tenant damage to my properties in the past. I put no pressure on him whatsoever because he didn't know what he would be able to do at the end of three years. So we could negotiate a new lease, stay on as a tenant, leave with the proper notice or talk with me about some kind of an agreement of sale for a future date. Q Did you contemplate which other terms of the ultimate purchase would have to be negotiated before the actual purchase? A No. I mean we didn't talk about down payment or anything or who pays the taxes, any of those normal things that are in an agreement of sale. Q So there were many open-ended terms? A Correct. Because he didn't know what he would be able to do. Q This document, P-2, is dated October 31, 2005. The lease is dated October 24th. A Correct. Q Was anything in addition to the rental payment paid for this October 31, 2005, agreement? A No. I mean he paid his deposit for the lease. Q But that was just a security deposit? A Security deposit, correct. 14 • 1 MR. YOUNG: Objection. He is leading the 2 witness, Your Honor. 3 THE COURT: I understand that. Try not to 4 lead, please. 5 (Whereupon, 6 Plaintiff Exhibit No. 3 7 was marked for identification.) 8 BY MR. ADLER: 9 Q Let's go to Exhibit P-3. What is this? 10 A This is the lease that I wrote up for the 11 tenant at the small building at 4609 Old Gettysburg Road. 12 Q Just to be clear, could you tell us how many 13 buildings are on this property at 4609? 14 A Two. 15 Q And what is the size of Mr. Winston's in 16 relation to this building included in the March of 2007 17 lease? 18 A The small building is 1280 square foot. I 19 believe his bu ilding is a total of 9,664, something like 20 that. 21 Q So you leased the small building -- I'm 22 sorry, what were the terms of the lease? 23 A Well, it was going to be over a period of 24 three years. She started out with $1339.00 a month. At the 25 beginning of the second year the rent increased to $1380.00. 15 • • 1 And was to remain at that for the third year. And basically 2 all the same terms as his as far as utilities. She paid her 3 own heat, electric. I mean the property has well water so I 4 always took care of the water and the sewerage on the 5 property. 6 Q Did she remain in this small building for the 7 entire lease term? g A No. I let her go early in 2009. 9 Q When in 2009? 10 A I think she was finished on the property June 11 10, 2009. 12 Q Why did you let her out early? 13 A She had come to me and asked me if I would 14 possibly let her go early because there was a property in 15 Shiremanstown, obviously within walking distance of her 16 home, for sale, that she wanted to place a bid on for her 17 own beauty shop. And the location was great for her. 18 I said, well, if you can get approval for a 19 mortgage from your bank:, and provide me with something from 20 the bank that they have approved the mortgage for you, I 21 won't hold you back on the opportunity to buy it. 22 (Whereupon, 23 Plaintiff Exhibit No. 4 24 was marked for identification.) 25 BY MR. ADLER: 16 C7 C7 1 Q Let's turn to Exhibit 4. What is the date of 2 this letter? 3 A February 19, 2008. 4 Q Did you write this? 5 A Yes. 6 Q Now, these letters that we are about to go 7 through, are these, are the facts set forth in this letter 8 reflecting what was going on at the time from your 9 perspective when you wrote the letter? 10 A Yes. 11 Q So just. briefly why was this letter written? 12 A He called me one evening -- 13 Q He being? 14 A Dave, Mr. Winston called me one evening at 15 home really ranting and raving with me over the parking in 16 there because the Township of Lower Allen said that for 17 Kelly's business she needed 12 parking spaces. Well, he was 18 upset about that. He was in his building with himself and 19 one other employee, two people. But he was upset that she 20 had 12 parking spaces. I mean that was the only way that 21 she was going to be allowed by the Township to rent that 22 property. 23 Q So, so there was a parking dispute between -- 24 A Immediately. Immediately. 25 Q -- Kelly and Mr. Winston? 17 • • 1 A He was, he was attempting to block her 2 ability to get to the back. Because the two buildings 3 aren't more than 20 foot across and there is two posts 4 concreted in the ground with a heavy chain on one side 5 between the two buildings. So it isn't like, you know, it's 6 a two-way street there to go through to the back. And the 7 bulk of her parking was in the back of the building. 8 Q Was that. eventually resolved? 9 A No. 10 Q The parking situation? 11 A No. He tore down some of her parking signs. 12 I guess yelled at her on numerous occasions when her 13 clientele would try to come in. And sometimes either his 14 clients would park between the two building and block it or 15 on one occasion I saw him with his vehicle parked on an 16 angle so that nobody could get around him. 17 Q Now, did this parking dispute in any way 18 affect your ultimate negotiations in 2008 when it was time 19 to come to terms on an ultimate purchase by Mr. Winston? 20 A No, no. I really wanted to sell the 21 property. I wasn't happy with what he did and I tried to 22 tell him, you know, if you don't want to take my word for 23 this, go over to Lower Allen Township and let them tell you. 24 And, you know, I said if you wish at some time in the future 25 to have a tenant in here, you know, if you were to keep 18 1 Kelly as a tenant, this is not a way to act with her. 2 Because she was paying a fair amount of rent. She was 3 keeping the place clean, neat and tidy inside and out. 4 It just went on and on and on. Then he was 5 having classes. And he was apparently having like 35 peoplE 6 or more in there at a time. 7 Q Okay. I understand all that, but we have to 8 move on. 9 (Whereupon, 10 Plaintiff Exhibit No. 5 11 was marked for identification.) 12 BY MR. ADLER: 13 Q Let's go to Exhibit 5. What is Exhibit 5? 14 A This is the note he sent me saying that he 15 was interested in purchasing the property. 16 Q What is the date on that letter? 17 A June 11 he wrote it. 18 Q When did you next hear from him about 19 purchasing the property? 20 A I didn't hear from him. After I received 21 this I phoned him because I didn't hear anything more from 22 him. I said, what were your thoughts on this small 23 building. I said, do you intend to use this for yourself 24 for these classes you are holding, or do you want a tenant 25 in there? He said, no, he would want a tenant in there. 19 • • 1 (Whereupon, 2 Plaintiff Exhibit No. 6 3 was marked for identification.) 4 BY MR. ADLER: 5 Q Look as Exhibit P-6. 6 A Yes. 7 Q What is Exhibit P-6? 8 A I prepared this and sent it to him as to 9 what, you know, I would want in a -- basically what I would 10 want in an agre ement of sale between he and I. 11 Q Had you gotten any feedback or input from him 12 between the Jun e letter from him and this August lst letter 13 on the terms of an agreement? 14 A No. He did not come back to me on this 15 letter. 16 Q Okay. So you suggested these terms? 17 A Well, yeah. I have another sales agreement. 18 This is pretty basically, it was written up by a lawyer, 19 pretty much the same thing as the other one. I mean, you 20 know, not exact terms, but basically all the normal things, 21 who pays the ta xes and right of inspection, down payment, 22 number of years that I would carry a mortgage for him. 23 Q Did this in any way contradict the offer of 24 terms to purcha se from October 31, 2005? 25 A It wasn't restricting me. This is what I 20 0 0 1 expected. And, you know, he never came back to me, that is 2 all, on anyt hing, whether he was agreeable or not agreeable. 3 I didn't hea r from him. 4 Q Agreeab=e or not agreeable to this August 1, 5 2008, letter? 6 A Correct. 7 Q Is that what you are referring to? 8 A Correct. 9 Q Now, page 1 of this letter sets forth down 10 payment and purchase price. What does page 2 set forth? 11 A You mean the second page to P-6. Correct? 12 Q Correct? 13 A Well, basically some of what I already said, 14 and at the t ime I asked him to agree to get other financing 15 if I should become disabled to the point of not being able 16 to handle my affairs or upon my death. Because my son just 17 really does not want to be involved in something like that. 18 Q You have one son? 19 A I have one son. 20 Q How old is he? 21 A He is 42. 22 Q What does he do? 23 A State Police officer. 24 Q So -- 25 A I basically told him, that should be fine. 21 • • 1 Should you find these preliminary terms and basically 2 unsuitable on a sales agreement, that the price would revert 3 to 600,000. 4 Q So this was the start of your negotiations 5 with him? 6 A Correct. 7 MR. YOUNG: Objection, leading. 8 BY MR. ADLER: 9 Q Were any of the terms -- 10 THE COURT: Sustained. What was this? What 11 did you feel this letter was? 12 THE WITNESS: Well, telling him now that if 13 he said that he wanted to buy the property on a sales 14 agreement, th at this is what would be going into the sales 15 agreement. 16 THE COURT: Okay. 17 THE WITNESS: I think most of these things 18 are very much standard. 19 BY MR. ADLER: 20 Q None of these items were prohibited by the 21 October 31, 2 005, offer of terms to purchase. Were they? 22 A No. 23 (Whereupon, 24 Plaintiff Exhibit No. 7 25 was marked for identification.) 22 0 • 1 BY MR. ADLER: 2 Q Let's look at P-7. 3 MR. YOUNG: Objection. Your Honor, I have ar 4 objection to some of these later letters because to me they 5 are settlement negotiations which should not be evidence in 6 this case. Some of the letters are relevant for other 7 purposes. But this letter, I mean we are talking about a 8 settlement negotiation which is not evidence. 9 MR. ADLER: My position is these are just 10 negotiations. I mean there was no lawsuit involved at this 11 point. No money was being offered to settle this. I think 12 that is what the lawyer refers to. 13 THE COURT: This is still August 13, 2008. 14 It is before the completion of the lease. There is no 15 dispute yet. 16 MR. YOUNG: Well -- 17 THE COURT: It is overruled. This is a 18 non-jury trial. I read your brief and I understand your 19 position. This lease has not expired and they are still 20 talking about purchase. That is not a settlement offer. 21 You can proceed. 22 BY MR. ADLER: 23 Q So what, just explain P-7, please? 24 A Okay. That is what I sent to Howard Hanna 25 Real Estate Services, to Mr. Walker, who phoned me and said 23 • • 1 that he was representing Dave on the purchase of my 2 property. 3 Q Did Dave ever talk to you about Mr. Walker 4 representing him? 5 A Not at all. Not a word. He wanted a copy of 6 Kelly's lease. 7 Q Mr. Walker did? 8 A Yes, to be FAXed up to them. He told me 9 that -- 10 MR. YOUNG: Objection, hearsay. 11 THE COURT: Sustained. 12 THE WITNESS: What, am I not allowed to -- 13 BY MR. ADLER: 14 Q Let me just think for a second to rephrase m? 15 questions in regard to this letter. What are you trying to 16 tell Mr. Walker in this letter? 17 A I am telling him basically that I am not 18 dealing with him, that the first option of purchase to this 19 property is with Dave Winston, and if they are doing 20 something together, that Mr. Winston needs to let me know it 21 writing what his intentions were. If I am allowed to say 22 it, they said it would be a direct sale and not a sales 23 agreement. 24 Q What is your understanding of a direct sale 25 versus a sales agreement? 24 • 1 A That somebody would go to the bank and/or 2 have the money and buy the property outright, not with me 3 holding the mortgage -- 4 Q Understand. 5 A -- for a number of years. 6 (Whereupon, 7 Pla-_ntiff Exhibit No. 8 8 was marked for identification.) 9 BY MR. ADLER: 10 Q What is P-8? 11 A That is basically just telling him that I hac 12 not heard from him about my letter to him with the listed 13 down payment and the basic sales terms, sales agreement 14 terms. 15 Q What is the date of this letter? 16 A September 30, 2008. 17 Q When did the lease expire? 18 A October 31st. 19 Q Is there anything about new rent in this 20 letter? 21 A Pardon me? What was your question? 22 Q Is there anything about increased rental in 23 this letter? 24 A Yes, there is. That November lst, if he 25 didn't, didn't let me know, you know, if he wanted to go the 25 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 route of the sales agreement or the route of a direct sale and was going to stay on as the tenant that I was increasing his rent ten percent because there had not been any increases in the first three years. Q So what was the new rental amount? A The new monthly rental was going to be 3850. Q Effective when? A Effective November 1, 2008. Q Did you prepare a lease for him? A Yes, I did. Q What did you do with that? A I mailed it to him, certified, with an envelope with postage paid and everything to return one copy of it to me. Q Did he get that letter? A Yes. He finally picked it up at the post office, but he neve r sent it ba ck. Q What is P-9? A P-9 is what she was supposed to get in order for me to release h er from the lease, release her early. Q She being whom? A She, Kelly, I'm sorry. Kelly Deardorff Palumbo. Q The renter of the small building? A Correct. She got her pre-approval and she 26 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 • • negotiated a contract, of course. Basically I wanted. to know when, if this happened, when it was going to be happening. Q Turn to P-10. A Okay. After conversation with Mr. Walker, the first conversation with Mr. Walker, Dave found an attorney and he is advising me that he is representing Dave. Q So you got this letter and this letter says what? A Well, let me see here. Well, that Mr. Winston is purchasing the property for 600,000, less $36,000.00 in monthly credit. The adjusted selling price is 564,000. Your mortgage interest as outlined in the amount of five percent is acceptable. Conventional financing would ordinarily be for 20. He attached an amortization chart showing that Dave would make a payment of $3,722.15 per month over a 20 year period. Then he said if we would include a balloon payment, let's say it is due in five years, the mortgage payoff in the 60th month will be $470,685.43. (Whereupon, Plaintiff Exhibit No. 11 was marred for identification.) BY MR. ADLER: Q So what is P-11? 27 • • 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 It is just me writing back to him and asking him if Dave did not show him the letter that I had sent him of the terms that I wanted included in a sales -- in an agreement of sale. Q So -- A Let see. Q Are the terms here different than the August 2008 terms that you set forth in that letter? A Oh, most definitely. There is no mention of a down payment here at all. Q You mean from Mr. Miller? A From Mr. Miller, yeah. There was no down payment mentioned whatsoever. Q But my question is does this letter pretty much state again the terms that were in your August 1, 2008, letter to Mr. Winston? A Yes. And that I needed verification if he has been approved or has down payment money in the amount of 188,000. Q Now, what was your understanding concerning his ability to make a down payment? A He never told me. He never came back to me on the one-third down to say, hey, Sue, you know, I don't have that much, I have this much. But I did expect a down payment. If I am going to carry somebody's mortgage for 15 29 0 0 1 years, I do expect a down payment. And I think that 2 everybody, especially property owners should know that 3 because I don't know who buys a house without a down 4 payment. 5 Q Just so the record is clear, Sue is your 6 nickname? 7 A Correct. Sandra Sue. Sue is my middle name 8 Yeah, Dave left those things in the post office quite a 9 number of days before he picked them up. 10 (Whereupon, 11 Plaintiff Exhibit No. 12 12 was marked for identification.) 13 BY MR. ADLER: 14 Q Let's look at P-12. 15 A All right. There were numerous phone calls 16 from Mr. Miller. Mr. Miller and I spoke. I said, well, I 17 will drop it down to 25 percent down payment. And he told 18 me that Dave had the money for the down payment. So at that 19 point I thought, this is crazy, you know, we can write this 20 up. I told him so, he could go ahead and write it up at 21 those those terms, but for 15 years that I offered in my 22 original letter. Because that would put me at 78 years old 23 at that point in time. 24 Q So why didn't you want to go with 20 years, 25 20 year amortization? 29 • • 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 Well, it was going to make me too old. I would have been up in my '80's. I thought 78 is enough. And Attorney Miller was talking about balloon mortgages and all this and that. Well, I don't think he ever talked to Dave about it. Q But you don't know that? A I don't know that, no. So I dropped the dowr payment amount. Anyways, he said that Dave had the money. I told him I want to know when, some assurance that the money is there. Q Did you ever get that assurance? A No, I did not. Nothing other than him verbally telling me. And at that point in time, it just wasn't enough. I wanted something in writing. Q Just to keep this in chronological order, what is P-13? It is the next exhibit. A Oh. That went to go along with the new leasE for him to post the next $350.00 in his security to bring it up equivalent of one month's lease, which he never did. Q So what was the new rent under the November lst? A The new rent was going to be for two years at $3,850.00. Are we finished with that? Q Yes. (Whereupon, 30 1 Plaintiff Exhibit No. 14 2 was marked for identification.) 3 BY MR. ADLER : 4 Q P-14, what is this? 5 A I am just basically telling him not to 6 prepare the sales agreement, not to write it up because I 7 asked for a letter of verification and I didn't get it. 8 Q Letter of verification for what? 9 A That he did have the money, some proof to me 10 that he had the money for a down payment. 11 Q Does this letter mention rent? 12 A Well, his rent was due on November lst and 13 that it had not yet arrived. 14 Q And -- 15 A And at that point in time he hadn't given me 16 a new certificate of insurance. He had not had the new 17 furnace and AC system serviced. So apparently Attorney 18 Miller got after him about that and I did receive those 19 within the n ext week. 20 (Whereupon, 21 Plaintiff Exhibit No. 15 22 was marked for identification.) 23 BY MR. ADLER: 24 Q What is P-15? 25 A This is just saying the matter of the 31 0 • 1 insurance, the HVAC was addressed and that Dave had sent his 2 rent check. 3 Q Now, you received these FAXes on or about the 4 date that is indicated on the FAX from Mr. Miller. Right? 5 A Pardon me? I didn't catch all that. 6 Q I mean the dates on these FAXes, that is 7 around when you received these FAXes. Correct? g A Oh. Yeah. That was pretty hot and heavy. 9 So FAXes and phone calls and -- I mean he was trying to 10 negotiate, talking about balloon mortgages and that Dave did 11 have the money for down payment. But nothing ever 12 materialized out of that. And I really did feel that I was 13 entitled to a down payment and I wanted proof of it. 14 (Whereupon, 15 Plaintiff Exhibit No. 16 16 was marked for identification.) 17 BY MR. ADLER: 18 Q What is P-16? 19 A Well, another letter to Attorney Miller, in 20 which he apparently made a phone call, he had called me, and 21 he was apologizing and blab, blab, blab, he had been at 22 State College or out of town somewhere. Telling him again I 23 clearly stated that I need a letter from his financial 24 institution verifying the funds were available or approved 25 for him. 32 • • 1 Q You never got that? 2 A Never got that. And I told him, I said, you 3 verbally told me that this man has the money. 4 Q You state that in this letter.? 5 A Yes. It says, right here, you verbally told 6 me that he had the money. And I thought, coming from a 7 lawyer, he is telling me that, it should be true. But, by 8 the same token, I wanted it in writing. At this point in 9 time I was not too trusting of the things that were going 10 on. 11 Q Is there anything about rent in this letter? 12 A It says here that November 1st was the date 13 that it was due. 14 Q The rest of this are issues that we 15 discussed. Did you ever get the $3850.00? 16 A One month. 17 Q November_ lst? 18 A November 1st, yeah, for November rent, I did 19 receive one check for $3,850.00. 20 (Whereupon, 21 Plaintiff Exhibit No. 17 22 was marked for identification.) 23 BY MR. ADLER: 24 Q What is P-17? 25 A He sent me a blank installment sales 33 • • 1 agreement form which obviously they used in his office. 2 Apparently didn 't write -- I mean it did write things up per 3 individual. It was apparently a very basic form that they 4 used. Nothing is filled in. 5 Q So why do you think he sent you that form? 6 A To show me, I guess, if he did write it, you 7 know, what kind of form they used and how it was worded and 8 so forth. 9 (Whereupon, 10 Plaintiff Exhibit No. 18 11 was marked for identification.) 12 BY MR. ADLER: 13 Q What is P-18? 14 A Well, he is saying he received my surprising 15 note, which he says I reneged on the entire deal. Well, 16 that is positiv ely not true. I didn't renege on the deal at 17 all.. I just wa nted to know what was going on right up front 18 from him. 19 Q From whom? 20 A From Mr. Winston. Because I didn't -- I 21 wanted to sell the property. And it really would not have 22 mattered to me if he and Gettysburg Associates did a joint 23 thing to buy my property. That would not have been a 24 problem. But I didn't want to let myself open for him to 25 come back and s ue me and say, well, you sold it to somebody 34 • • 1 else and you didn't give me a chance. 2 Q What are you talking about right now, sold ii 3 to -- you sold it to whom and -- 4 A Well, Gettysburg Associates. If you go back 5 there is a FAX attached to that. one, one letter from them 6 saying that they are prepared to make an offer or he is 7 authorized to make an offer for old Gettysburg Associates. 8 But, you know, I always held true that I gave him first 9 option to buy. It is just that he has been trying to 10 dictate all of the terms. I meat: I have no problem, I woulc 11 have carried the mortgage for him for 15 years. But I am 12 entitled to a down payment. And they were trying to force 13 20 years down my throat. That is not necessarily standard 14 in real estate. There can be quite a broad range of years 15 that is customary on commercial real estate. 16 Q You mean for a mortgage amortization? 17 A For a mortgage, yes. 18 (Whereupon, 19 Plaintiff Exhibit No. 19 20 was marked for identification.) 21 BY MR. ADLER: 22 Q What is P-19? 23 A Well, then he obviously spoke to me on the 24 phone that he was going to file suit in court and sue me. 25 He expected the issue to be signed -- let's see, that was 35 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 5th, he expected it to be resolved by the 7th. I basically told him, you know, he is going to have to go ahead and file it because I had some legal matters in my parents estate in Huntington that I had to go to and told him, yes, I want to know where the down payment money would be coming from. Just with the whole thing. He apparently had asked me at some point in time about real estate taxes here, March through July. Q So your same concerns remained open in this letter? A Yes. (Whereupon, Plaintiff Exhibit No. 20 was marked for identification.) BY MR. ADLER: Q What is P-20? A He is trying to tell me he was trying to meet some of my additional demands and terms as set forth in your recent letters. Said demands being above and beyond the October 2005 terms. I didn't change what was stated, you know, when I offered it to Dave on October 2005. I just waE not willing to go more than 15 years and I wanted a down payment. Over the course of all this, for approximately a year, I dropped that down payment different times trying to make it doable for him. The last one was ten percent down 36 • • 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 and he rejected it. That was just really the last straw for me. BY MR. ADLER: Q A Q A Q A (Whereupon, Plaintiff Exhibit No. 21 was marked for identification.) What is P-21? Then I talked to Mr. Walker one more time. From Old Gettysburg Associates? Well, from Howard Hanna. Oh, Howard Hanna. To see if they were still trying to work with Dave on this purchase. Q Work with Dave to do what? A Purchase the property. He said basically that -- BY MR. ADLER: MR. YOUNG: Objection, hearsay. THE WITNESS: What is hearsay? MR. ADLER: Just wait. THE COURT: Don't tell me what they told you. Q Just what was your understanding of the deal with Walker and Gettysburg Associates? Not saying what they told you, just what was your understanding? A At that point in time I was, they told me, 37 0 0 1 Mr. Walker had told me that their dealings with Dave -- 2 MR. YOUNG: Objection, hearsay. 3 A -- had fallen through. 4 MR. YOUNG: She is quoting verbatim what Mr. 5 Walker alleged ly said. 6 THE COURT: Sustained. 7 THE WITNESS: Well, I mean that is what the 8 man told me. I am not guessing about it. 9 BY MR. ADLER: 10 Q The problem is without having Mr. Walker here 11 we can't say w hat he said. That is the hearsay. 12 A Okay. Basically I am not hearing it from 13 Dave, I think probably Attorney Miller at some point in time 14 said -- I don' t know without reading all these letters -- 15 that that deal had fallen through. 16 BY MR. ADLER: 17 Q That was your understanding? 18 A That was my understanding. 19 Q Old Gettysburg was out of the picture and 20 Walker was out of the picture? 21 A Right. It had gone over the budget, that is 22 why it didn't work for Dave. 23 Q So at this point did you have that 24 reassurance for a down payment? 25 A No. 38 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 • (Whereupon, Plaintiff Exhibit No. 22 was marked for identification.) BY MR. ADLER: Q What is P-22? A Yeah, that FAX is attached to something else previous to this. It is a copy of a FAX from Mr. Walker. (Whereupon, Plaintiff Exhibit No. 23 was marked for identification.) BY MR. ADLER: Q We will move on from that. What is P-23? A That is a letter from the banker, or the branch manager that was obviously handling her purchase, property purchase at Fulton Bank. Q Her being whom? A Kelly Palumbo. That she was approved for a mortgage. Their notification. Q Why did you want this? A Pardon'? Q Why did you want this letter? A Because if she was just going to move out and rent property elsewhere, I wasn't going to let her go early. I wasn't going to, if this was legitimate, I mean a lot of people could say, oh, I'm going to buy a place. But I 39 • 1 wanted proof that it really was legitimate. 2 (Whereupon, 3 Plaintiff Exhibit No. 24 4 was marked for identification.) 5 BY MR. ADLER: 6 Q What is P-24 7 A It was at that particular time, June 2009, I 8 wrote it on the 6th, he did not send his rent check. 9 Q The 6th of what? 10 A June. I told him that Salon Halo is going to 11 be finished on the property by June 10th. Her rent ran from 12 the 10th of the month to the 10th of the month -- it wasn't 13 the lst to the lst -- due to when she originally mov ed in. 14 (Whereupon, 15 Plaintiff Exhibit No. 25 16 was marked for identification.) 17 BY MR. ADLER: 18 Q What is P-25? 19 MR. YOUNG: Objection. This is 20 correspondence between counsel nine months after the lease 21 ended. It is h earsay. Settlement discussions. 22 THE WITNESS: This isn't, counsel. T his was 23 to Dave from me . 24 MR. ADLER: P-25. 25 THE WITNESS: Oh, P-25. 40 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: It is overruled. BY MR. ADLER: Q Now, P-25, what is P-25? A All right. This is from, I had taken all the papers into Lowell Gates on December 1, 2008, to handle this. I don't know. Anyway he turned it over to Clifton Guise, who is one of the attorneys that works in that firm. Q But this letter is to James Miller? A Correct. Q Oh, it is from Clifton Guise? A He is basically telling him what our position is here. I guess pretty much self-evident if you read it. Q What was the position at the time in June of '09 regarding the lease and rent? What was -- just without looking. A Well, he is basically saying here what the new lease amount was, $3,850.00 a month, and what he had been sending was $2,747.63 a month. Q Since when? And when you say what he had been sending, when who had been sending? A What Dave had been sending to me. The month of November 2008 he sent $3,850.00, which was the amount of the rent on the new lease. In December I got $297.83 from Mr. Winston as his rent payment. January and there on he sent $2747.63 each month. 41 0 0 1 Q Now, what was your position from November 1, 2 2008, to today as to what he should be paying you? 3 A Actually he did not sign and return the new 4 lease. But the old lease would go on a month to month 5 basis. So he should at least be paying $3,500.00. 6 Q But what had you requested in the new lease? 7 A $3,850.00, which he was notified of. His 8 attorney was notified. He just did not send it back to me. 9 Q The November 1, 2008, lease renewal? 10 A Right. It was a two year lease. 11 Q So did you have any input into the figure of 12 $2747.63 he has been paying since January? 13 A I don't know how he and Attorney Miller came 14 up with that. I don't know exactly how they concocted that. 15 Somethin g about me escrowing taxes. Now here we are in a 16 situatio n, he doesn't want to agree on the term of years, he 17 doesn't want to put a down payment, he wants to do just. 18 exactly what he wants to do. 19 I am supposed to escrow these things and take 20 care of his bills. Well, it's positively ridiculous. He 21 just sai d that he thinks it's a little presumptuous of Mr. 22 Winston to take this, this stand, when no terms have been 23 reached. No settlement has been done. We are not agreeing 24 here. 25 And even though over the process of time I 42 0 0 1 dropped the down payment for him down to 10 percent, he 2 still rejected it. He was still pushing for more and more 3 and more and more time he wants. Well, I mean I have 4 something to say too. 5 Q You never came to agreement on those issues. 6 Did you? 7 A No. 8 MR. YOUNG: Objection, leading. 9 THE WITNESS: We did not come to any 10 agreement on it. I was told so many different things. I 11 was lied to. And I wanted to hear from Dave. He is the 12 person that I had an agreement with from 2005, that he would 13 be the first individual that could buy this property from 14 me. I would give him the first opportunity. But he has to 15 give something too. We can't go on forever. We are going 16 into the fourth year here. 17 (Whereupon, 18 Plaintiff Exhibit No. 26 19 was marked for identification.) 20 BY 'MR. ADLER: 21 Q Do you know where P-26 came from? 22 A I think after the last offer that Attorney 23 Guise sent to, I don't know, did he send it to your office? 24 At the time he didn't recognize the name of the attorney. 25 Q That's all right. You can't ask him 43 • 0 1 questions. Just testify as to what you know. 2 A I'm sor-Ny. Anyways, this was their response, 3 what it came back with. 4 Q What did -- 5 A They wrote up a real estate sales agreement. 6 Q Who did? 7 A His attorney. 8 Q Mr. Winston's attorney? 9 A Mr. Winston's attornev. 10 Q All right, 11 A And it was just a name that nobody seemed to 12 recognize at the time.. It was no longer Attorney Miller. 13 Q I understand. Did this proposed sales 14 agreement, P- 26, meet your requirements? 15 A Oh, it most certainly didn't. He, again, no 16 down payment. It was going to be a balloon mortgage, but 17 only after ten years. And that they wanted, they wanted the 18 deed upfront. No, of course it's not agreeable to me. 19 (Whereupon, 20 Plaintiff Exhibit No. 27 21 was marked for identification.) 22 BY MR. ADLER: 23 Q Now, let's look at P-27. Before we get into 24 that, when Ke lly Deardorff moved out of the small building 25 what. efforts did you make to re-rent that small building? 44 0 0 1 A Well, I, of course, when she moved out put 2 the utilities back into my name. And it was not long, maybe 3 a few months, there was a huge spike in the electric bill. 4 So first thing, you know, she had installed some new 5 exterior lighting in there cause it was dark at nighttime. 6 So I went in, shut down everything but the basic lights for 7 the inside of the building and the well pump. Next month my 8 bill was huge again. So I called PP&L in to check the 9 meters and. 10 Q Let's limit this. What efforts did you make 11 to re-rent the building? 12 A I am saying why I didn't rent it at the time. 13 Q I sorry. Go ahead. 14 A Initially because the tenant in that building 15 has to pay this bill. There was most definitely something 16 wrong. Basically it was searched out and finally I ended up 17 getting a plumber in there. They had to dig up the well. 18 It was the well pump, there was a leak in the pipe. But I 19 mean it was, it just went like four times, five times as 20 much as previous in warm weather. There was no 21 air-conditioning running or anything. So at that time I got 22 that fixed. That was October of 2009. I had a fellow that 23 actually remodeled that building that worked, has done work 24 for me for years, came in and repainted. There were some 25 patching work had to be done on the dry walls, and re-paint 45 • • 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 interior of the building. Q So how long did that take? A Well, he was on a job, he and his wife had been working in Florida off and on, commercial construction. So I guess he probably didn't get in there immediately. He was in and out. Q When was the small building rented for occupancy again? A Well, it. would have been ready after the well was operating properly. I don't know the exact date of when he painted it. But the painting and the action with the dry wall was the main thing. Q So approximately when was it ready to rent again? A Oh, it probably was ready pretty much by the end of 2009. The well was fixed in October of 2009. Q What did you do in December 2009, January 2010, to rent this small building again? A Well, I said I tried to rent it myself for awhile. Put a sign in the front of the building. I had a few calls. Two different men actually that said that they were looking for locations for their daughters for a beauty shop. The only problem was they could not afford to spend more than six or seven hundred dollars a month rent. So that automatically was a no deal because they couldn't 46 • • 1 afford the rent, they couldn't afford the utilities. So 2 whenever they found out, you know, what the rent would be, I 3 said my previous tenant paid $1380.00, you know, that ended 4 that very quickly. 5 I had calls from Denise Cass of High 6 Associates in April of 2010 inquiring about my property. I 7 said, well, I want to continue to try to sell this on my own 8 if possible. 9 (Whereupon, 10 Plaintiff Exhibit No. 27 11 was marked for identification.) 12 BY MR. ADLER: 13 Q So look at P-27? 14 A Yes. 15 Q Is this around when you contacted -- 16 A When she phoned me. Cause it was a number 17 listed on the buildings and she called me. She said I look 18 forward to working with you, because I hadn't signed up with 19 them yet. You know, she called me back basically a month 20 after that and I said okay. They took over trying to rent 21 the small building and sell the property. 22 Q Around what time, around what date did they 23 take over? 24 A Actually I think the contract was signed like 25 May 29th. But until I got the pictures taken and all their 47 0 • 1 signs, you know, it was the first week in June. 2 (Whereupon, 3 Plaintiff Exhibit No. 28 4 was marked for identification.) 5 BY MR. ADLER: 6 Q So what is P-28? 7 A That is one, I guess I get these from them 8 every month. It is a progress report. 9 MR. YOUNG: Objection. It is all hearsay, 10 Your Honor. 11 THE COURT: I need an offer. Trying to sell 12 the small building, what is the relevance to this? 13 THE WITNESS: Oh, no, not -- 14 THE COURT: Just wait. I am not getting 15 this. 16 MR. ADLER: The $2747.00 that he was paying 17 from 2008 was reduced by the amount of rent that she was 18 getting for the small building. It is his contention that 19 we weren't making efforts to re-rent it. He deducted that 20 1400 from that. That is why we are putting in the record 21 the efforts to re-rent: it. 22 MR. YOUNG: But P-28 is hearsay. It is a 23 report from a third party as to things that purportedly 24 happened. It is all hearsay. This whole progress report 25 here, it's all hearsay. 48 • • 1 MR. ADLER: I am not using it for proving the 2 truth of the m atter asserted in that report. It is just to 3 show efforts m ade to rent the building. 4 MR. YOUNG: You are trying to show that it is 5 true, that the third party made the efforts that they said 6 it made. 7 THE COURT: That is sustained. You ought to 8 have her in he re to tell me here is what I did. Now, she 9 can say I was trying to rent it. And if I accept that as 10 credible, that establishes that point. But that is 11 sustained. 12 BY MR. ADLER: 13 Q Did you retain High Associates to attempt to 14 rent the small building to a third party? 15 A Yes, I did. 16 Q And that effort started around when? 17 A June 1. st . 18 Q Of what year? 19 A 2009 -- or 2010. I'm sorry. 20 Q We will skip P-29, and we will skip P-30. 21 Was the small building ever rented to a third 22 party? 23 A Yes. This past year, 2011. 24 Q Around when? 25 A April, May, April I believe. 49 0 0 I Q To whom? 2 A It is called First infinity Construction. 3 They are a company out of Georgia. 4 Q How much rent do they pay you? 5 A $1280.00 a month. 6 Q For how many months? 7 A Actually total that they paid, three months 8 rent. They have one month security deposit. And they 9 stopp ed paying. 10 Q So you basically got four months rent from 11 them? 12 A Four months rent, yes. 13 Q Did you have a written lease with them? 14 A Yes. 15 Q Why did they stop paying? 16 A That is the problem you have with out of 17 state tenants. There is really not much way to pursue them. 18 Which I knew this because I have never had an out of state 19 tenan t that I didn't have problems with. 20 Q Did they actually move in to the building? 21 A No, they never did. They said that they werE 22 doing contract work for the Navy Depot. 23 Q So they paid the four months rent, but they 24 never moved in and then they disappeared? 25 A Right. And, you know, I put the utilities 50 • • 1 back in my name to be sure that, you know, there was 2 electric in there. 3 Q So that took you to around what time? 4 A Yeah, she wanted to continue with it. Her 5 name was Nicole Clean. She wanted to continue as long as 6 they could always be late with their rent. 7 Q But that ended around August? 8 A Yes. 9 Q Did you pay a commission to High Associates 10 for that rental? 11 A Yes, I did. It was over $1100.00. 12 Q Do you remember the precise amount or was it 13 between 11 and 1200? 14 A It was between 11 and 12, I think. 15 Q Did they want, once that tenancy was 16 terminated., did High Associates continue their efforts to 17 try to rent the small building with a third party? 18 A Yes. She has called me about different 19 people. Several people with pizza shops. They even went 20 over to the Township. 21 Q Without saying what she said, have they been 22 successful in their efforts to rent the small building 23 since? 24 A No, not a good tenant. And the pizza shop 25 thing wouldn't have worked out because they would have had 51 • 1 to add a ramp for handicapped person, a second bathroom and 2 80 percent of that building sits on a cinder block or on 3 concrete. There is no place to put it. 4 Q So the renovations would have-been too 5 extensive for a pizza shop? 6 A They wanted to cut holes through the roof to 7 put the vents in there for ovens. I mean for all the money 8 that I put in that property, and it is a nice building, I 9 didn't want so mething :Like that. Plus it would not have 10 worked out. 11 Q So has the small building been rented since 12 August -- 13 A No. 14 Q -- of 2011? 15 A No. It is vacant. They have been trying. 16 But there is a lot of vacant property around. 17 (Whereupon, 18 Plaintiff Exhibit No. 31 19 was marked for identification.) 20 BY MR. ADLER: 21 Q Now, turning to P-31? 22 A Yes. 23 Q What is this? 24 A This is just a chart printout of, since 25 November 1, 20 08, of the rent that he should have been 52 0 0 1 paying at the old rate of 3500 a month; 10 percent late 2 charge penalty on that, and the difference in rent plus the 3 late charges. 4 Q So what does the second page show? 5 A Well, this is running through this month, 6 February of this year. The total due, $34,612.43. Had I 7 received the rent, the extra 350 a month that was in the new 8 lease, it would have been another $13,650.00. 9 Q But this P-31 reflects the payments that you 10 got? 11 A Right. 12 Q In each month? 13 A And the shortfall, yeah. 14 Q Now, you have always been paying the rep 15 estate t axes? 16 A Yes. 17 Q On the whole property? 18 A Yes. I pay, carry fire insurance and all the 19 packages on the property to cover fire and so forth, and the 20 real est ate taxes, the sewerage. 21 With the small building empty I am not 22 running the gas heat in there, but I put in an electric 23 heater. So I do pay the electric bill. 24 Q Do you know around what the real estate taxes 25 run? 53 • • 1 A Approximately 5000 to 53, 5300 a year. 2 Q For County, Township and school taxes? 3 A Right. 4 Q Do you remember what the sewer rates run? 5 A Well, the sewer right now, this last, the 6 first quarter in 2012 is up to $110.00 a quarter. Back in 7 2008, it was probably at $60.00 a quarter. Then it jumped 8 to 64, and I believe 88. Then a hundred. And now it is 9 $110.00. 10 Q After November 1, 2008, did you have to make 11 any repairs to the small building or the big building? 12 A Both. 13 Q The big building being Mr. Winston's? 14 A Both. Somebody, as far as the small building 15 goes, somebody backed into the corner and cracked the corner 16 post on the siding. That probably loosened the facie 17 handles. Cause I put like mountain stone up halfway the 18 front of the building, and then panels up and down, up and 19 down panels from there to the roof. Knocked those loose. 20 Of course, the work after Kelly left to 21 re-paint the property. I think maybe a valve in the 22 commode, changed the valve in the commode in that building. 23 There was a roof leak. We discovered the dry wall in the 24 furnace room had a rust mark. So we replaced the dry wall 25 in the furnace room. He got up on the roof and finally 54 1 found the roof leak. It was just an odd shape roof. Comes 2 over, drops straight down and goes back out. So somewhere 3 there, you know, it. took a long time to find it, but -- 4 Q This is the small building? 5 A The small building. 6 Q What about any repairs to the large building 7 after November 1, 2008? 8 A They put dry wall in the very rear part of 9 the building. It had glass backing on it before. A lot of 10 that had dropped loose and was just hanging down from the 11 ceiling. 12 Q This is after November 1, 2008? 13 A Yes. So the same gentleman that does my 14 work, Ample is his company name, he put the spouting back up 15 in place. Well, he removed the light fixtures, fixed up 16 some of the wiring cause somebody had run -- which I think 17 was probably Dave -- run a wire without the conduit right. 18 But anyways, he brought that up to code. Dry walled all 19 that ceiling, to hold the insulation up in there. Some of 20 the dry wall was put on the side walls. There is a door 21 going into that part of the building, it is right at the 22 lower end of the loading dock, which seemed to be moving. 23 So he had to get that anchored into the concrete on the 24 floor. 25 Q Any other work during this time, like roof -- 55 • • 1 A He fixed -- Dave was supposed to keep the 2 leaves cleaned out of the gutters because the neighbor there 3 has huge trees. He let those build up and didn't get that 4 weight out of there, and it pulled down a section of qutter 5 in the back of the building. 6 Q This is after November 1, 2008? 7 A Yes. 8 Q You had to repair that? 9 A I repaired it because I let it go for a 10 while, he didn 't touch it. So I had that fixed. Somebody 11 backed into the cinder block in the back of the building and 12 cracked it. I had that repaired. Some power washing on the 13 building and r e-painting areas that had been stained up by 14 leaves laying up against it for considerable period of time. 15 Q So after November 1, 2008? 16 A And then inside the factory as well and the 17 ceiling. 18 Q So after November 1, 2008, as far as you can 19 tell, you are still doing all the building maintenance? 20 A Yes. 21 MR. YOUNG: Objection. He is leading, Your 22 Honor. 23 THE WITNESS: Basically -- 24 THE COURT: Sustained. 25 THE WITNESS: This past year he cleaned up 56 • • 1 leaves better than he ever did before. 2 THE COURT: Just for the record, why did you 3 do this? You know he is still in the building, he is not 4 paying you the rent you feel is due, why are you fixing up 5 the building? Just tell me why. 6 THE WITNESS: It needs repaired. 7 THE COURT: You were maintaining your 8 investment? 9 THE WITNESS: Yes, cf course. 10 THE COURT: Okay. 11 THE WITNESS: My husband died in '97. And at 12 that point the building, what was in there was getting old 13 enough, it was time to fix up. 14 THE COURT: Why didn't you ever remove or 15 evict him? 16 THE WITNESS: Why didn't I? I did tell you I 17 turned this over to Lowell Gates and his firm for their 18 guidance in this. Anyways, nothing was happening with them 19 basically. Because I told them to, I wanted them to get on 20 this and work on it. But, I don't know, I think Lowell was 21 running for some kind of political office or some such 22 thing. Then it got turned over to Cliff Guise. He didn't 23 seem like he was doing anything. 24 THE COURT: Did you ever say that though to 25 them? Look, I want this over, I want them out of the 57 1 building? 2 THE WITNESS: Yes. 3 MR. YOUNG: We are getting into privileged 4 material. If she wants to waive her privilege, we can go 5 into it. But I mean she is talking about conversations she 6 had with her attorney. 7 THE WITNESS: I don't know how else to 8 explain to you why. 9 THE COURT: That objection is overruled. 10 THE WITNESS: Things were not proceeding 11 definitely. 12 THE COURT: All right. 13 MR. ADLER: I have no further questions for 14 this witness. 15 THE COURT: We will take the morning recess 16 at this time. Stand in recess until a quarter of. 17 (Whereupon, a recess was taken.) 18 THE COURT: Please be seated. Cross-examine. 19 CROSS-EXAMINATION 20 BY MR. YOUNG: 21 Q Good morning, Mrs. King. I want to make sure 22 I heard your earlier testimony correctly. What I heard was 23 you saying that the parking dispute between your tenants did 24 not affect your attitude towards Mr_. Winston and you were 25 still willing to sell the property to him. Did I hear that 7,8 • C7 1 correctly? 2 A Yes. I mean I was angry with him that he did 3 this, but by the same token it did not affect whether I 4 would sell the property to him or not. And the things, if 5 Kelly had been in the big building and he in the small, I 6 would have done the same thing for him. 7 Q So you were angry because of the dispute that 8 the tenants had over the parking? 9 A I was angry because he refused to go over to 10 the township and present his issue to them. The township 11 said she needed 12 parking spaces. He was there with one 12 other employee. There was a lot of parking in there. 13 Q Mr. Winston was in the space before Halo 14 opened. Correct? 15 A He was in the big building, yes, you know, 16 when his lease was effective. 17 Q You rented the space to him before Kelly and 18 her establishment ever came to be. Correct? 19 A Yes. They were a tenant after him. When he 20 moved in there was an outfit by the name of Eastern Frontier 21 Construction. They were hardly ever there. They had things 22 in the building. So he basically had the entire place to 23 himself 99.9 percent of the time. 24 Q But that dispute, that didn't affect your 25 attitude about selling the property to him. Right? That is 59 • 0 1 what you said? 2 A No. Why would it? I wanted to sell this 3 property. 4 Q Could you -- 5 A That wasn't the issue. I mean that is not 6 why I want a down payment like I am punishing him. That is 7 not true. 8 Q Can you flip to Plaintiff Exhibit 16 for me, 9 please? Pla intiff. Those are the Defendant's. 10 The exhibits that Mr. Adler was showing you, 11 do you have those in front of you? 12 A 16? 13 MR. ADLER: These. (Indicating) 14 THE WITNESS: Oh, all right. 15 BY MR. YOUNG: 16 Q I thought since we have already been talking 17 about those documents it might be helpful to focus on the 18 same documents we were talking about earlier today. 19 A You want P? 20 Q 16. 21 A Okay. 22 Q Now, this is a letter that you prepared and 23 sent to Mr. Miller. That would be Mr. Winston's attorney. 24 Correct? 25 A Correct. 60 • 1 Q So you typed to-s uut? 2 A Yeah it was FAXed in, yes. 3 Q Could you turn to page 3 for me, please? Are 4 you on page 3? 5 A Yes. 6 Q Okay. Could you go to the first full 7 paragraph, I guess the second paragraph down? 8 A Right. 9 Q It starts with 1? 10 A Right. 11 Q And it says (Reading) i don't know if he is 12 cheap or if he is contemptible. Do you see that? 13 A Correct. 14 Q You are calling Mr. Winston cheap and 15 contemptible? 16 A Well, when he was not helping to pay expenses 17 for clearing snow in there. Never once. You know, that 18 property, it is pretty hard to get two separate individuals 19 to come in and clear snow. The entry between the two 20 buildings is common to both, which means it is the 21 responsibility of both individuals. 22 Q November 3, 2008, that is when you prepared 23 this letter.? 24 A Yes. 25 Q That is four days after the lease ended. 61 • • 1 Right? 2 A Correct. Weil, it wjuid have gone on a month 3 to month at that point since he didn't sign the new lease. 4 Q Four days after the written lease ended? 5 A The original lease. 6 Q Right. That is a yes? 7 A Yes. This would have been four days. His 8 lease expired October 31st. 9 Q And that is before a lot of the 10 correspondence that you talked about earlier occurred. 11 Right? 12 A What correspondence? 13 Q Well, I mean that is before what we are 14 entering into evidence as P-18, 19, and a number of the 15 letters after that. 16 A I think everyt-inq here is dated and is in 17 pretty much chronological order. 18 Q Sure. But the letter writing went on for 19 quite a bit of time after that? 20 A Yes. There were a ict of phone calls back 21 and forth and FAXes and letters, yes. 22 Q But as of November 3rd you thought he was 23 cheap and contemptible. Right? 24 A I thought that before that. 25 Q Oh, before that.. Okay. 62 • • 1 A But I don't care. I want to sell my 2 property. 3 Q Right. Okay. 4 A If the price is right and we can come to an 5 agreement, it doesn't matter to me. 6 Q You still want to sell the property? 7 A Of course. 8 Q Okay. Could you go to -- 9 A It could have been sold by now. 10 Q Could you go to `he third paragraph up from 11 the bottom of that same page, page 3? Starts with bottom 12 line. Do you see where I am? 13 A Right. 14 Q It says (Reading) Bottom line is this, I will 15 not do a sales agreement with him. I do not trust him and I 16 am not fool enough to want to be tied to him for fifteen 17 years. 18 A Yes, that is correct. 19 Q So you didn't wart to sell the property to 20 him at that po int? 21 A No. I was probably angry when I wrote this 22 in response to something Attorney Miller said. Because I 23 kept repeating the same things, over and over, no, 20 years, 24 I want a down payment and all the other terms. I kept 25 trying to drop the down payment amount for him to make it 63 • • 1 doable. Kept getting rejected over and over and over. Yes, 2 I was angry. 3 Q In the paragraph underneath that, the 4 paragraph tha t starts with I, you go on to say, I don't have 5 to sell this property at this time. I own other properties 6 and many not in dire straits. 7 A Correct. 8 Q You did type that out and send that to Mr. 9 Winston's attorney. Right? 10 A Yes, I did. 11 Q This is four days after the end of the lease? 12 A So? 13 Q I mean this had been going on and on back and 14 forth. 15 A I don't remember what his telephone 16 conversation was prior to this letter. 17 Q But you liked Kelly Deardorff. Right? 18 A Oh, we had a few differences over things. 19 Q Well, you let her out of the lease early. 20 Right? 21 A I think I have explained that fully. 22 Q Right. 23 A Because she did negotiate a mortgage on a 24 property which is a few doors from her home -- 25 Q Right. 64 • • 1 A -- for her place of business. 2 Q But you didn't have to do that? 3 A Of course I didn't. 4 Q Okay. 5 A That is why I wanted to have proof that she 6 really did ge t a mortgage or I wouldn't have let her go. 7 Fighti ng or n o fighting. 8 MR. YOUNG: May I approach the witness, Your 9 Honor? 10 THE COURT: You may. 11 BY MR. YOUNG: 12 Q I am going to hard you a notebook with 13 docume nts in it. 14 A Do you want to work with this? 15 Q Now we are going to work with the notebook. 16 I woul d L_ke you to turn to tab 17. Are you at tab 17? 17 A Yes. 18 Q We were just talking about 2008 after the 19 lease ended. Now, fl=ipping back to the beginning of the 20 lease, three years earlier in the fall of 2005. So now I am 21 going to ask you some questions about the fall of 2005. 22 Okay? 23 A Okay. 24 Q Do you know what the document at tab 17 is? 25 A This letter is just a letter from Attorney 65 E 1 Miller saying that he is representing him and -- ADLER: 1 don't think we are on the right MR 2 . 3 page. THE WITNESS: Oh, I'm sorry. I am on the one 4 5 before. Okay. 6 BY MR. YOUNG: Q The top of the first page it should have a 8 date of October 11, 2005? 9 A Correct. 10 Q That was before the lease. Correct`: 11 A Yes. 12 Q Okay. The lease is dated October 24th. 13 Right? 14 A No, the lease, I think his lease actually 15 went in to eff ect on the 1st of November. 16 Q Right. But it is dated October 24. Right? 17 A That is the date it was prepared, typed up, 18 yes. 19 Q So it was prepared on October 24th? 20 A Correct. 21 Q That is the date that appears on the lease. 22 Right? 23 A Well, it does. You have a copy of whatever I 24 have. That is the date I typed it. 25 Q Sure. I am just trying to give everyone an 66 • • 1 idea of the time period we are talking about. We are 2 talking about 13 days before you prepared the lease. 3 Correct? 4 A Basically, yeah. 5 Q Okay. So what is what has been marked D-17 6 at tab 17 in this notebook? 7 A I didn't hear back from him about whether, 8 this was about I really needed to know if he wanted to rent 9 the property. 10 Q Okay. Well -- 11 A Because I was trying to make it doable for 12 him. But if he wasn't going to take it, I needed to know 13 because the repairs and whatnot were coming to an end, and 14 if he wasn't going to take it I needed to start advertising. 15 Q Well, first, this is a letter from you? 16 A Yes. 17 Q And it is to Mr. Winston? 18 A Of course. 19 Q Okay. All right. And you said that you were 20 talking to him about leasing the space? 21 A He had been over and he looked at the 22 building and then he was, wanted to think things over. And 23 he was going to let me know if he wanted to lease it or not. 24 He wasn't su re if he could afford it. 25 Q Okay. Could you go to, I guess it's the 67 I • I fourth paragraph down, it starts with one year? See where I 2 am at? 3 A Right. 4 Q It references there a selling price of 5 $564,000.00? 6 A Correct:. 7 Q Do you see that? So you are talking to him 8 about selling the property to him. Right? 9 A We talked. We walked around outside and we 10 talked. I said, well, maybe down the road at the end of 11 three years if you can afford it you can purchase this 12 property -- 13 Q Okay. 14 A -- on a sales agreement. 15 Q You are going to sell it to him for 16 $564,000.00? 17 A Right. On a sales agreement, agreement of 18 sale. 19 Q And this is, this statement from you, this is 20 taking place before he moved into the building. Right? 21 A Yes. 22 Q What is the discussion there about one year 23 selling price of 588, two years selling -- 24 A Just an example so he understood what it was. 25 Q He was going to get an offset of some sort? 68 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 It says very clearly stated there. Q Okay. A So really for me at this time it was an encouragement, hopeful that he would take care of the property, that I wouldn't be spending thousands fixing up again. And also to make it more, what will we say, more desirable for him and affordable for him to buy. Q So -- A If I don't go through a real estate agent, I can afford to sell property for less. Q Right. Okay. So you say there the amount of $1000.00 per month as a reduction J_n the selling price. Do you see that? A Right. Q Do you see that reference? A The selling price started out at 600,000. Q Right. Okay. So there you are talking about a selling price of $600,000.00, and since the lease was three years, 36 months, a thousand dollars a month, there iE going to be a reduction of $36,000.00. Right? A Right. Q So the price after the credit is going to be $564,000.00. Right? A Correct. That would be the bottom line for him. 69 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 Mr. Winston is going to buy the property from you for $564,000.00. A On a sales agreement. Q And you go down a couple sentences below that, you also say, I will also be able to give you the five percent rate that you mentioned. That is a five percent interest rate on a mortgage? A Right. Q You are going to take back a mortgage sale of the property? A What do you mean take back? Q You are going to accept payments from Mr. Winston over time? A I would have, at that time, if he would have come to an agreement, I was willing to carry his mortgage for 15 years. Q You are going to charge him a five percent interest rate? A Right. Q Now, can you tell me where in this letter you talk about a down payment? A We didn't discuss a down payment. Q Okay. A He didn't know -- he hesitated a little bit about renting the place as to whether he could afford it. I 70 • • 1 said., well, you know, maybe when the lease is over, if you 2 can afford it, I can do this for you. Because that 3 $36,000.00 basically, if I go commercial, is probably being 4 paid out to a commercial real estate commission. 5 MR. YOUNG: Your Honor, we are going to wait 6 until the end of the evidence to admit documents. 7 THE COURT: That is fine. 8 BY MR. YOUNG: 9 Q I would like you to turn to what is tabbed 10 19? 11 A Defendant 19. 12 Q Two tabs later on in the notebook that I gave 13 you. 14 A Is this the one with the UGI and PP&L? 15 Q Yes. 16 A Okay. 17 Q What is Defendant Exhibit 19? 18 A Well, if he is moving in and taking over the 19 building, I was paying these utilities. They are my account 20 numbers. When you call in to switch, you know, I am Mrs. 21 Jones with whatever, I want to take over such and such an 22 account number. So it went from my name into his name. 23 Q Sure. But this is a letter from you to Mr. 24 Winston. Right? 25 A Yes. 71 • • 1 Q This is the letter that you enclosed the 2 lease agreement with. Right? 3 A No. The lease agreement probably was being 4 carried up there. He wasn't there when I took it in. I 5 left it for him in a drawer in the kitchen to sign it. I 6 would pick it up later. 7 Q But the first line of this letter says 8 enclosed is our lease agreement. Right? 9 A Well, maybe 1 did. I don't remember. Could 10 have been the same day. October 24th. That is the day I 11 typed his lease. 12 Q Right. That is the date on the letter. 13 Right? 14 A Yes. 15 Q So you could have enclosed the lease 16 agreement with this letter. Right? 17 A Probably wasn't in an envelope. Probably on 18 top of the lease. Put it in the drawer. 19 Q Okay. 20 A I don't understand what you are asking here. 21 I mean I live down in York County. You know, I don't live 22 around the corner. So I type these things up in my home on 23 my computer. 24 Q I wanted you to go to the last paragraph on 25 that same page, the last paragraph of D-19. 72 • • 1 A Yes. 2 Q It says, You can leave the signed lease in 3 the kitchen. Did I read that correctly? 4 A Yes. That is what he did. 5 Q Okay. So you are expecting him to sign the 6 lease that you prepared and leave it in the kitchen? 7 A In the drawer in the kitchen. 8 Q Right. But that is what you expect him to 9 do? 10 A Yes. Because he wasn't there when I come up 11 there. We we re probably back and forth in and out. You 12 know, like I say, it takes me half an hour to get up there 13 basically. 14 Q I appreciate that- No, I understand. 15 A So, you know, he is in there with, he was in 16 and out too. 17 Q In the second paragraph on this page, you 18 also indicate to him that you need the check for the 19 security depo sit on the lease. Riaht? 20 A Right. 21 Q Okay. So you don't have a check for the 22 security depo sit yet? 23 A No. 24 Q He hasn't moved in. Correct? 25 A He started moving in before his lease went 73 • • 1 into effect. He had like a box truck he was bringing little 2 by little over on a daily basis. He asked me and I said go 3 ahead. 4 Q So I would like you to flip to tab 20, 5 Defendant Exhibit 20. 6 A Okay. This letter I am going to tell you 7 right now, the first time I saw this was Tuesday in Bill's 8 office. You never presented this before and I never saw it 9 before. 10 Q You never produced it to us. Did you? Il A This is he wrote to me. I don't have this, 12 if we are on the same right one here. 13 Q So you are telling me that you never receives 14 Defendant Exhibit 20? 15 A No. No. This other letter that he sent, he 16 sent certified, and I. signed for it, telling me that he had 17 an interest to buy the place. This I never received. He 18 prepared this three days after 1 wrote up the lease. 19 Q Right. You wrote up the lease and you left 20 it for him? 21 A I mean he didn't come up with this, but I, 22 honest to God, I never received this. I do get most of my 23 mail. Occasionally the mail carrier screws up. 24 Q Did he ever tell you that to protect his 25 interests he really needed an offer? 74 0 • 1 A All he wanted, the other thing that I typed 2 up, he wanted to know that guaranteed him the price and the 3 interest rate, if we could go and have it notarized. I said 4 sure. I don't know where the closest place is here. He 5 said I do, up on the Carlisle Pike. 6 Q So in October 2005, before he had a signed 7 lease, he told you he needed a guarantee on the purchase 8 price of the property? 9 A For what I -- yes, if he was able to buy it. 10 Q And he also needed a five percent interest 11 rate guaranteed. Right? 12 A He asked if I could do that, and I didn't 13 really have a problem with that. 14 Q So you guaranteed the purchase price and the 15 interest rate. Right? 16 A Right. 17 Q You prepared a separate document in case Mr. 18 Winston wanted to purchase the property from you? 19 A He wanted to if he could afford it at the en( 20 of three years. He wasn't sure. He wasn't sure initially 21 if he could afford the 3500 a month for rent. So why would 22 you draw up an entire sales agreement three years ahead of 23 time when he really didn't know where he was going to be? 24 mean everybody hopes they do well. That is a big commitment 25 to make. It's not a $200,000.00 mortgage we are talking 75 • • 1 about here. 2 Q I would like you to turn now, switch gears, 3 and go to the exhibits that your own attorney used. I am 4 just trying to keep down the repetitive documentation here. 5 We all have a lot of copies of the same documents. I know 6 it is a little, I know it is a little awkward for you. I 7 apologize for that. 8 A Which one do you want? 9 Q Plaintiff Number 2. 10 A Right. This is what we went and had 11 notarized. 12 Q Right. 13 A What we have been talking about. 14 Q Mr. Winston wanted this notarized. Right? 15 A Yes, he did. He said, could we have it. 16 Well, I didn't really have a problem with that. 17 Q Right. Okay. 18 A I am not trying to pull the wool over his 19 eyes or deceive him. I mean it's fine with me. 20 Q You prepared this. Plaintiff Exhibit 2, what 21 is this document? 22 A Basically it is guaranteeing him a sales 23 price of 564,000 and guaranteeing a rate of five percent. I 24 also gave him -- I didn't put any pressure on him. Because, 25 believe me, if this was set in stone, I would have had 76 • • 1 something guaranteeing me that he was definitely going to 2 purchase. We have would written up an entire agreement that 3 he was responsible for a down payment, the taxes, the 4 insurance, and all of the other issues. 5 Q It is a guarantee to purchase the property? 6 A No. It is guarantee of a price. I gave him, 7 you know, options there. I didn't put pressure on him. He 8 could negotiate a new lease, lie could leave with the proper 9 notice, or talk to me about sales agreement terms for 10 sometime ahead. 11 Q Didn't he already have a right of first 12 refusal in the lease document? 13 A Well, this is not a right of first refusal to 14 me. This is the first option to buy, you know. 15 Q Well, but he already had a right of first 16 refusal in. the actual lease itself. Right? 17 A Well, but I think that lease could not be 18 entered anywhere if you read it thoroughly. 19 Q Well, that wasn't my question. 20 A He wanted this notarized. 21 Q What do you mean entered anywhere? 22 A I think there is a clause in there that there 23 is nothing in that lease that can be entered for any reason 24 at the courthouse. I would have to go back and read it. I 25 think that is in there. 71 • • 1 Q Could you could enter Plaintiff 2 at the 2 courthouse? 3 A Well, he did enter this. That is what has 4 been going on. 5 Q By this you mean Plaintiff Exhibit 2? 6 A Yes. 7 Q And Plaintiff Exhibit 2, that has the 8 $600,000.00 purchase price in it. Right? 9 A This says property is purchased after the 10 expiration of the three year lease, $1000.00 credit will be 11 subtracted for each month of, subtracted from the selling 12 price of 600,0 00. 13 Q Right. So it's a selling price of 14 $600,000.00. Right? 15 A Right. 16 Q There is a $36,000.00 credit there if he 17 stays -- well, a thousand for each month of the 36 month 18 lease? 19 A Correct. 20 Q Right. Also there is the reference to the 21 mortgage rate of five percent. Right? 22 A Yes. He had asked me and I thought about it, 23 I can do that. 24 Q Okay. 25 A I have eight percent on my other sales 78 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 agreements, but I can live with five. Q Right. And on the next page, your signature is on that page. Right? A Yes. Q So is Mr. Winston's? A Yes. Q And it was notarized. Right? A Yes, a notary. Q This contains terms that aren't in the lease. Right? A Well, he basically is told he has the first option or first right. of refusal on the lease. This, you know, is separate from the lease. It was actually, you know, typed October 31st. Q Right. It is separate? A The lease was prepared on the 24th. Q Right. It is separate from and contains terms that are not in the lease. Right? A Well, I mean it is not typed out. He has to give notice about vacating the premise with proper notice. I think the lease may have said 90 or 120 days. I didn't make mention of him having an interest in purchasing the property on his lease. Q Could you turn to Plaintiff Exhibit 1 for me' It is the first document in the stack of documents that your 79 1 attorney was talking t.o you about earlier. 2 A Okay. That is our !.ease. 3 Q If you can turn to page 8 for me, please? 4 A Page what? 5 Q Page 8. 6 A I am not hearing too good today either. 7 Q I'm sorry. Page 8. 8 A Okay. 9 Q Okay. I would -like you to go to paragraph 20 10 where it say s Right of First Refusal? 11 A Okay. 12 Q It says that the Lessor shall grant to lessee 13 the right of first refusal for the purchase of the property. 14 Did I read t hat correc?ly? 15 A Yes. 16 Q By virtue of the lease in and of itself, Mr. 17 Winston alre ady had a right of first refusal.. Right? 18 MR. ADLER: Objection. Legal conclusion. I 19 don't think the witness is qualified to answer that. 20 MR. YOUNG: She wrote that. 21 THE COURT: Overruled. She can answer. 22 BY MR. YOUNG: 23 Q You prepared this lease. Right? 24 A Yes, I. did. I used many parts of this lease 25 from Commercial Industrial Realty's lease that they use. 80 0 0 1 Q And then you modified it to fit your needs? 2 A Right. 3 Q And that -- 4 A Cause it seemed like a decent lease, 5 commercial lease. 6 Q And you also prepared Plaintiff Exhibit 2. 7 Right? The offer. 8 A Yes. 9 Q And now I would like you to go to page 9 on 10 Plaintiff Exh ibit 1. 11 A Okay. 12 Q On page 9 there at the top, paragraph 24? 13 A Right. 14 Q Does that give Mr. Winston until 90 days 15 prior to the termination of the lease in which to exercise 16 his option to purchase the property? 17 A Yeah. Notice of Intent -- 18 Q Right. 19 A -- to Renew, Not Renew or Desire to Purchase, 20 which he did. 21 Q Right.. So you are holding open his ability 22 to purchase the property? 23 A It was always there. 24 Q Right. 25 A I have had phone calls from people, several 81 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 • years that he was in there, and I said no, my tenant has the first option here. Q So he always had the ability to purchase the property is what you are telling me? A I don't know about ability. He always apparently has had an interest in wanting to buy it. Q Okay. Could you go to Plaintiff Exhibit 5? Now, I realize this -- are you on Plaintiff Exhibit 5? A P-5. Right? Q P-5. A Yes, that is his notice that he sent me. Q This is the notice that you received? A Correct. Q Okay. And this is prior to the termination of the lease. Right? A Yes. Q The lease ended -- A Which he was obligated to do. To get it in a certain amount of time. Q Right, right. We just discussed that. A Right, as to what he wanted to do. Q There is the notice he gave you exercising his right. Correct? A Correct, that he was interested in purchasing. 82 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 Now, later you demanded that Mr. Winston make a down payment on the purchase of the property. Right? A Of course. We did not have that agreement of sale. Q And that, your demand for a down payment, does that appear in Plaintiff Exhibit 2? A No, it. doesn't. Q How about in the lease, Plaintiff Exhibit 1? A No, it. is not in there either. Q Okay. A But I mean it is a pretty customary part of sales agreement or mortgage. The bank or the person to get the down payment. He has to be responsible for taxes and various other things. I gave him a very good deal. Offere to take his mortgage, carry it for 15 years. Down payment was dropped all the way down to ten percent to try to make it doable for him, and he rejected it. Q In the fall of 2005, before Mr. Winston move into the space did you ever discuss a down payment with him A No. We didn't discuss any of those things. He is a property owner, I would assume he would expect to pay a down payment. Q But you never discussed it. Correct? A No, because he didn't know if he would be able to. 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • • Q And it doesn't appear in this offer that you sent him. Right: Plaintiff 2, tnere is no reference there to a down payment? A No, there is not. This is all in the very beginning and it was riot a done deal. If he would like to purchase it, whether he could or not was a different matter, it was three years down the road. Q But it doesn't appear in the lease. Right? A How many times do 1 have to say the same thing? It is not in the lease. Q And you demanded a down payment after he sent you the acceptance which -- A Right. Which said his intent, he wants to purchase. Now we get down to the brass tacks here. Q But he was going to move? A You are wanting me to carry a mortgage all. those years, not a penny down, riot one cent. Now, who today doesn't know when you get a property you can expect that there is going to be a down payment? In the 70's, my husband and I got our first tax, Skyport Road in Mechanicsburg, sales agreement. We had to put a down payment and we had one year to get our own money, one year to carry. Q Mr. Winston wanted the ability to purchase the property, and that is why the offer was prepared. 84 • • 1 Right? 2 A Say that again? 3 Q Mr. Winston wanted the ability to purchase 4 the property and that is why the offer, Plaintiff 2, was 5 prepared. Correct? 6 A Plaintiff 2. Yes, he wanted that. I gave 7 him that option. I don't know if he asked for it or I told 8 him, you know, I will give you that option. You know, if 9 you are able to afford it at the end of three years, then wE 10 can, you know, come to agreement. I don't see the point in 11 writing up a total agreement three years out:. 12 Q But then he moved into the space. Correct? 13 A Well, he leased it for three years. 14 Q Right. Right. And you knew you needed to 15 make alterations to the building. Right? 16 A That was his choice. I told him right up 17 front -- and I think it is in the lease -- that lease owner 18 improvements I am not going to reimburse. If he needed to 19 make renovations I am not going to reimburse him. He also 20 took out five offices of mine. That is wiring, carpet, dry 21 wall, everything else. So he spent some money. But I woulc 22 assume he claimed that on taxes. 23 Q Well, you knew he wanted to buy the property 24 and you knew that he planned to alter the property after he 25 moved into it. Right? 85 • • 1 A It was a lease owner improvement to make it 2 workable for him. 3 Q Is that a yes? 4 A I didn't know -- he had an interest in buying 5 the property, but the ability to buy it three years later we 6 didn't know. 7 Q You didn't know of his ability to purchase 8 the property? 9 A I do not have one thing about his financial 10 situation to know what he is able to do. His web site says 11 he does a million -- a million to 2 point 5 million dollars 12 in annual sales. He should have money. 13 Q Could you go to page 2 of Plaintiff Exhibit 1 14 for me, please? 15 A Okay. 16 Q Would you go to paragraph 5? 17 A Taxes, Utilities, Maintenance? 18 Q Right. The second sentence, where it says 19 Lessee intends to alter the existing office and conference 20 room space in the front of the building to turn it into a 21 large show room area which is more suitable for his 22 business. 23 A Correct. 24 Q So you knew he was going to do that? 25 A It is lease owner improvement. He knew he 86 • 1 had to do it when he rented the place. 2 Q But this is after you knew he was going to 3 make those alterations? 4 A I told him that was acceptable so long as he 5 checked with an engineer and it not structurally weakened 6 the building. 7 Q Sure. But you had already given him the 8 offer to purchase the property, to sell the property to him. 9 Right? 10 A It was a possibility down the road. 11 Q It also says there in the next sentence that 12 Lessee also intends to install a double door between what is 13 now office and the main warehouse floor. Did I read that 14 correctly? 15 A Yes, you did. He cut a hole through what 16 used to be dry wall. Probably what used to be between two 17 different offices. 18 Q You said before he needed to get the 19 township's approval to do all that. Right? 20 A You are supposed to. I don't know what he 21 filled out at the township. They like people to come over 22 and do Certificates of Occupancy. And I don't know what 23 engineer he spoke with. But I told him, it is also another 24 clause in this lease that if he is not able to buy this 25 after three years, that he also would restore my building t< 87 • 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 way it was. • Q All right. I would like you to go to the last sentence of that paragraph, paragraph 5, which is labeled Taxes, Utilit-es, Maintenance and Insurance. The last paragraph says that Lessee also intends to build a concrete ramp at the rear of the building which is acceptable to Lessor and has apparently been cleared by Lower Allen Township. A Right. Q So that was another alteration that he needed to make to the building? A He didn't need to make it. He chose to :Hake it so he could use tha: shop. Because before they worked outside to do the work that they do inside in that shop. Q This was all going to happen after, I think in your words, you gave him a guarantee of the purchase price on the building? A No. I mean if he wanted the building. I don't know what date we actually talked. I think Dave was over twice at least. But that building has -numerous loading docks and so forth. So it was perfect. But, as I said, those expenses should be tax deductible expenses. So T don't see that as a huge loss to him. Q I would like you to go to Plaintiff 31, which is the last document in the stack of documents that your 88 0 0 1 attorney was using. This starts, in November of 2008. 2 November 1, 2008? 3 A Correct. 4 Q That is after the three year lease, the 5 written lease that we have talked about ended? 6 A Right. This was going into the new lease. 7 Q Right. You're charging him late charges in 8 this document. Right? 9 A It carried a ten percent penalty clause, the 10 same as the original lease. 11 Q But this is for the time after the lease was 12 over, the three years lease was over at this point. Right? 13 A Yes. But there was a new lease prepared and 14 he did pay me $3,850.00. That is not showing in that column. 15 that there was a late charge. I best look at it again. 16 There was no late charge charged to him. Cause this chart 17 was set up when his original old amount of the lease, 3500. 18 Q You said you did send him what you wanted hln 19 to sign in terms of a new lease, correct, at some point? 20 A Yes, I did. I signed them. I prepared two 21 of them. I signed for myself. I have cards at home. I 22 mailed him certified mail. I know that he picked it up. 23 But he never signed and returned my copy to me. 24 Q I'm sorry, when did you send him the lease, 25 the new lease? 89 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 the card with me. I am going to' say around the 1st of November. I previously told, I think he was aware of it, and told his attorney, Attorney Miller, that I was going to prepare one and send it, mentioned numerous times. If we can't come to an agreement for a sale here, there is going to be a new lease. Q This was after you already tried to charge Mr. Winston a down payment on the sale of the property? A I didn't want a down payment until we reached an agreement here. I didn't ask for any money from him up front. I don't understand what you are talking about. Q Well, you did demand a down payment from Mr. Winston. Right? A Yes, I wanted in order for us to come and reach an agreement here. And finally at settlement, yes, I did require a down payment. Q Isn't it -- A That is for the risk I am taking. Q Isn't that how you responded to his notice o intent to purchase the property? A Yes, I: did send that. He didn't -- I called him first, asked him about the small building, if he intended to use it for his classes. He said no. That probably would have been ideal for that. He said no, he would want a tenant in there. That is the one time I calle 90 1 him. Then I sent him the proposal. I didn't hear back from 2 him. I said in the proposal what I would want in the sales 3 agreement. Next thing that happened, Howard Hanna is 4 involved. I don't know what is going on. 5 Q All right. Could you go to Plaintiff Exhibit 6 5 for me? 7 A Did you ask me a question? I'm don't know 8 why I am having problems. 9 Q I'm sorry. Could you go to Plaintiff Exhibit 10 5 for me? 11 A Yes. 12 Q Okay. You talked about this earlier. This 13 is his notice to you of his intention to purchase the 14 property. Right? 15 A Yeah. It is only one paragraph long. It is 16 pretty short. 17 Q Right. Could you flip to Plaintiff Exhibit F 18 for me, please? The very next document. 19 A Right. 20 Q This is your response to his notice. 21 Correct? 22 A When I: didn't hear back, yes, I sent it to 23 tell him basically -- I think this is the one what I would 24 want in a sales agreement. Yeah, it is. Basically not 25 written in stone, but. the basics. 91 • 1 Q So, in this document you demanded a down 2 payment of $188,000.00. Right? 3 A Right. Initially was a third down, which 4 left a sizable mortgage. 5 Q Okay. 6 A But, as I said, I dropped that numerous times 7 trying to make this workable for him. 8 Q Okay. Could you flip to Plaintiff 18 for me? 9 A Yes. 10 Q You talked about. this earlier. This is a FAX 11 that you received from Attorney Miller? 12 A Right. 13 Q Okay. On the first line there it says, Mrs. 14 King, I received your surprising November 3, 2008, FAX 15 wherein you renege on the entire deal. I've been in 16 meetings and have to get to the polls. Do you see that? 17 A Yes. 18 Q So by November 3rd Attorney Miller thought 19 you had reneged on the entire deal. Did I read that 20 correct? 21 MR. ADLER: Objection. We are dealing with 22 hearsay here. I know this is a FAX from our exhibits, but 23 to have him question what Attorney Miller -- 24 THE COURT: Sustain the objection. But the 25 exhibit obviously says that. You could ask, doesn't the 92 • • 1 first line indicate Attorney Miller said you reneged on the 2 entire deal? 3 MR. YOUNG: Right. 4 BY MR. YOUNG: 5 Q Did I read that correctly? 6 A Well, I reneged on his writing that sales 7 agreement up until we get this squared away about the down 8 payment and the other terms of the sales agreement. Because 9 they kept rejecting what I was saying. Kept pushing 20 10 years, kept pushing no down payment. Over and over and over 11 again. I am saying, no, 20 years makes me too old. And, 12 yes, I want a down payment for taking that risk. 13 Q But that reference there, the November 3, 14 2008, FAX, you wrote Mr. Miller a letter on November 3, 15 2008. Did you not? That was Plaintiff Exhibit 16. 16 A First -- I told him previously. Where are 17 you at now? 18 Q Plaintiff Exhibit 16. It was the first 19 document that I had spoke to you about. 20 A All right. What is the question here? 21 Q Sure. Going to page 3, we talked about page 22 3 of Plaintiff Exhibit 16. It was the first document that 23 we ever looked at when I was talking to you. 24 A Right. I think we were probably into a 25 weekend there. But, yeah, I told him previously I wanted 93 0 0 1 proof of the down payment money because Attorney Miller said 2 Dave had the do wn payment money. 3 Q The down payment money that you didn't 4 discuss in the fall of 2005. Right? 5 A Correct. 6 Q Okay. 7 A Because now we were nearly getting to the 8 point where we could write up an agreement of sale. 9 Q And -- 10 A And he told me that Mr. Winston had the down 11 payment money. 12 Q On November -- 13 A I said I want proof of it. 14 Q And on November 3, you also told Mr. Miller 15 that you didn't want to sell the property to Mr. Winston. 16 Did you not? 17 A Where? Where are we at now? 18 Q The paragraph that starts with bottom line. 19 We talked about it earlier. 20 A Which copy are you on here? 21 Q It is Plaintiff Exhibit 16, page 3, third 22 paragraph from the bottom. 23 A Right. 24 Q Okay. 25 A Yeah, I was a little bit angry here because 94 • 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 have been lied to. I have been told that I would receive notification that the money was really was available. Q And Mr. Miller thought you were reneging on the deal? A Yeah. Q Okay. A Well, he never accepted 15 years. He was just doing whatever Dave wanted him to do. I didn't really trust him at this point in time. I mean there had been too much. All he ever had to do from the very beginning was just be honest and upfront with me about Gettysburg Associates. They could be owning together the property today. Q This period of time being four days after the end of the lease? A Yeah. Why do you keep talking about four days after the lease? I mean we have been communicating back and forth. So his lease ran out, he received a new lease, which he left laying in the post office I believe for ten days. Q Well -- A But he did acknowledge the new lease because he paid the new rent amount. Because the old lease would have become a carry over month to month. But he did acknowledge the new rent amount. 95 t • 1 Q Didn't you ,',-_s- say he wasn't paying enough, 2 high enough lease payments? Wasn't that the chart, 3 Plaintiff Exhibit 31, that you put cn earlier' 4 A This was his new lease, November 1st, the new 5 two year lease that he never returned. He did acknowledge 6 the new lease amount at. 3850 a north. 7 Q Well -- 8 A There was a ten percent increase over the 9 original three year lease. And it ran for two years. 10 Q I mean you are saying that he acknowledged 11 the new lease amount. Before, earlier you had a chart: where 12 you said he wasn't paying you enough. Correct? 13 A No, he hasn't been. You have the same thing 14 I have. 15 Q Well, he made a total of one lease payment, 16 one payment: to you of $3850.00. Right? 17 A Yes. That was the time when the new lease 18 started. Then he had some afterthoughts or whatever. 19 Anyways, in De cember of 2008, 1 got a check for $297.83. 20 Q But he never signed the new lease. Right? 21 A That is what I have been telling you. 22 Q Right. But -- 23 A But I did mail it to him. I mailed a postagE 24 paid envelope for him to return it to me. 25 Q But the whole time you are fighting with him 96 • • 1 about -- 2 A We are talking here one month that he 3 acknowledged the new amount. Which his lawyer may have told 4 him that. But we are using the old figure, 3500. So that 5 one month he was actually, if you go by the $3500.00 amount, 6 he overpaid by 350, if you don't want to acknowledge the new 7 lease. 8 Q After, after he said that he was accepting 9 your offer to sell the property? 10 A No. He is not willing to reach any kind of 11 an agreement here. I mean it does take two people, I 12 believe, to reach an agreement. 13 MR. YOUNG: I don't have anything further for 14 this witness. 15 THE COURT: All right. 16 MR. ADLER: I have no redirect. 17 THE COURT: You may step down, ma'am. We are 18 going to stand in recess until 1:20. 19 (Whereupon, lunch recess was taken.) 20 THE COURT: Please be seated. Anything 21 further? 22 MR. ADLER: No, Your Honor. 23 THE COURT: You are moving for admission of 24 your exhibits? 25 MR. ADLER: Move for the admission of all the 97 • 1 exhibits except for 29 and 30. 2 MR. YOUNG: No objection. 3 THE COURT: Plaintiff's Exhibits 1 through 27 4 and 31 will be admitted to the record. 5 The plaintiff has rested? 6 MR. ADLER: Yes. 7 THE COURT: Mr. Young. 8 MR. YOUNG: The defense calls Mr. Winston. 9 Whereupon, 10 DAVID WINSTON 11 having been duly sworn, testified as follows: 12 DIRECT EXAMINATION 13 BY MR. YOUNG: 14 Q Dave, how did you come to meet Mrs. King? 15 A One of my customers, he is a carpet cleaner, 16 we sell carpet cleaning chemicals and equipment, he knew I 17 was looking for another property to move, and he informed me 18 of Mrs. King having the property available. 19 Q The property at 4609 Gettysburg Road? 20 A Correct. 21 Q Okay. So can you describe your first contact 22 with Mrs. King for me? 23 A As I remember it, we met at the building. We 24 did a walk through. I discussed the changes that would need 25 to be made if I decided to lease from her. 98 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 point? A Q happened next? • • So you were talking about a lease at that Yes. Okay. After that initial discussion what A Well, she said that the lease was 3850, I believe is what she wanted. And I said that I really wasn't interested, you know, I really wasn't motivated to sign a lease for that amount for three years. Q How dial she respond? A She would come back with a, you know, with a little better offer. And she came back with the 3500 for three years. But, again, that wasn't motivation enough for me to want to move in. Q Okay. So a three year lease with a monthly rent of $3500.00 was not satisfactory to you? A No, it. was not. Q Did you express that to Mrs. King? A Yes. Q How did she respond? A She responded by saying that she would -- well, she pretty much said I would like to get out of the landlord business. And she said, talked about selling it tc me at the end and, you know, financing it. Q Okay. Did she ever put that discussion about 99 I a sale of the property in writina? 2 A She did put it in writing in a letter, yes. 3 I think it might have been August --- no. 4 Q Let me back up. 'Could you turn to, in the 5 binder that i s in front of you, could you turn to tab 17 for 6 me? 7 A Yes. That is the letter. 8 Q Did you receive this already from Mrs. King? 9 A Yes. 10 Q This was the letter where Mrs. King first 11 talked about a sale of the property? 12 A That is the first thing that I can remember. 13 that she put in writing. 14 Q Okay. And did you have the opportunity to 15 review this l etter? 16 A Yes. 17 Q Okay. How did you respond, if at all, to the 18 letter? 19 A I responded favorably. 20 Q And did you talk to her, did you do that in 21 writing, how did you respond to her? 22 A I pretty much, I think, I'm not a hundred 23 percent sure, but I know that, you know, I either said or 24 sent a letter under those terms I would be willing to move 25 ahead. 100 1 Q Could you turn to tab 20 for me? 2 A Yes. 3 Q What is the document at tab 20? 4 A That document was sent because I had received 5 a lease prior to, you know, to be signed. And the only 6 reason why I was moving in was because of the terms that she 7 had written in the letter on October 11th. So I wrote this 8 letter letting Mrs. King know that in order to move ahead, 9 that we would have to have that taken care of. 10 Q Okay. Well, so what happened? So what 11 happened next? 12 A Well, what happened next was we got together 13 and -- well, actually I said to her about sharing an 14 attorney to draw up the terms that she put in the letter. 15 And Mrs. King said we don't need an attorney, I can do that. 16 I can draw it up. 17 Q Okay. And did you ever receive anything from 18 Mrs. King in that respect? 19 A Yes. 20 Q Okay. And do you have the stack of documents 21 that the plaintiff introduced in front of you? 22 A Yes. 23 Q Could you turn to Plaintiff Number 2 for me? 24 A Okay. 25 Q Is this the document that you received from 101 1 Mrs. King in response to your concerns? 2 A Yes. After I had said about going to an 3 attorney, having him draw it up, she said she could do it, 4 this is what I received. 5 Q And did you have the opportunity to review 6 this document? 7 A Yes, I did. 8 Q Okay. And what was your understanding of 9 this document? 10 A My understanding was, was that she was going 11 to apply $1000.00 of my rent every month toward the purchase 12 and that she was going to finance it at five percent, the 13 balance of what I owed, which was 564,000. 14 Q Let me back up. What was your understanding 15 of the purchase price of the property? 16 A Well, she originally said 600,000, but she 17 would apply the $1000.00 a month from the lease toward the 18 purchase. 19 Q Okay. And how about a down payment? 20 A There was nothing about a down payment. 21 Q So she never talked to you about a down 22 payment? 23 A Never talked about a down payment. 24 Q How about the, how about the interest rate on 25 the mortgage? 102 • 1 A Well, it was set at five percent. We agreed 2 to it. I tho ught that she proposed the five percent, but I 3 am not a hund red percent sure. I know I agreed to five 4 percent. 5 Q How about the mortgage length? 6 A Well, I had been doing some research because 7 I knew I was moving and I was looking into possibly buying. 8 And that is what I found was what was standard was 20 years. 9 Q So you thought the mortgage term was 20 10 years? 11 A Yes. 12 Q So you thought the purchase price was 13 $564,000 .00? 14 A Yes. 15 Q Okay. The interest rate was five percent? 16 A Yes. 17 Q And the mortgage term was 20 years? 18 A Yes. 19 Q And that was your understanding of her offer 20 to sell you this property? 21 A Yes. 22 Q Okay. And was that acceptable to you? 23 A Yes. 24 Q Okay. And how did you respond to this offer, 25 Plaintiff 2? 103 • • 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 By saying it was okay to proceed, but we would have to both sign the document and have it notarized. Q Okay. Is your signature on the second page of Plaintiff's 2? A Yes, it is. Q And did you get that notarized? A Yes, we did. Q Following your discussions with Mrs. King about the lease and the purchase of the property, did you move into the space? A Yes. Q Okay. And how long was the lease? A Three years. Q Okay. Did you need to do anything to the property after you moved in? A Yes. Q What did you do to the property? A Well, I needed to have a show room so I had to take five or six rooms and make them into one large room for a show room. And then to have a shop in the back, I needed to build a ramp so we could get into the shop with ay automobile. Q Anything else? A That was about all that we needed to do to make the building work for our, for the type of business 104 1 that I have. 2 Q Did Mrs. King know that you were going to 3 make these a lterations? 4 A Yes, she did. 5 Q Did she know before you moved in? 6 A Yes, she did. 7 Q Okay. And did you need to go to the townshir- 8 to get those plans approved? 9 A Yes. 10 Q Okay. And did you do that? 11 A Yes. 12 Q Can you turn to tab 21 in the book there? Dc 13 you know wha t tab 21 is? 14 A Yes. 15 Q What is that document? 16 A That is the drawing that I made up for the 17 township to show them what I was going to do. 18 Q The drawing that you submitted for approval? 19 A Yes. 20 Q Okay. You made this document.? 21 A Yes. 22 Q Can you show me on this the alterations that 23 were going t o be made? 24 A Well, on the before you can see the layout of 25 that area wi th the small offices. 105 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 Okay. And on the after? A On the after you can see what is now the show room. Q You had to knock out those walls? A Yes. Q And that is what you submitted for township approval? A That is correct. Q Okay. After you moved in -- let me back up for a second. When you moved into the space you moved into 4609 Gettysburg Road. Right? A That is correct. Q That is the big building? A Yes. Q But there was another building on that same lot. Right? A Yes. Q Was that 4609-A? A Yes. Q That is the smaller building we talked about earlier? A That is correct. Q So the small building, that was 4609-A. Right? A Yes. 106 • 1 Q And the big building, that was 4609. Right? 2 A Correct.. 3 Q It is my understanding that there was a kind 4 of an aisle between the two buildings? 5 A Yes. It is a shared thoroughfare. 6 Q Right. I think reference earlier called it a 7 thoroughfare. So when we are talking about a thoroughfare 8 we are talking about the alley between the two buildings? 9 A Yes. 10 Q And was there parking in back? 11 A Yes. 12 Q Okay. And there was also -- well, was there 13 parking in fro nt of 4609? 14 A Yes. 15 Q And was there parking in front of 4609-A? 16 A Yes. 17 Q How about alongside of 4609-A? 18 A No. Only in the back. 19 Q So there is parking in front of the two 20 buildings and then there was parking in back? 21 A Yes. 22 Q And then there was a thoroughfare between 23 them? 24 A Yes. 25 Q What was your understanding of where you wer( 107 9 0 I -- what your assigned parking was? 2 A Well, it does say in the lease about a line 3 on the -- it is the parking behind the small building there 4 is a line partway down which designated the parking for 5 myself and also for the property fcr the smaller building. 6 Q Okay. When you moved into the building was 7 there anyone in 4609-A? 8 A No, nobody was -- there was no activity, 9 nobody was, you know, really in -here, no. 10 Q And how long after you moved in did Kelly 11 move in next door? 12 A Well, I think she started, it was 2007, 13 beginning of 2007. 14 Q Okay. So that was a year, a year and a half 15 after you mo ved in? 16 A Yes. 17 Q Was there a parking issue with Kelly? 18 A There, Kelly, yes, seemed to get upset about 19 the parking, yes. 20 Q And how about -- well, what exactly was the 21 issue as you understood? 22 A Well, I mean sometimes my customers, they 23 might pull i n to the thoroughfare and get out and come in. 24 And, you kno w, if I saw that they would do it, I would 25 immediately tell them to move. But I mean sometimes Kelly 108 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would see before I saw. Q Okay. How about, how about So on those occasions what would happen? A I would make sure that they Q Okay. But, well, Kelly, th dissatisfaction on the part of Kelly as to with the parking? A Yes. There appeared to be, Q How about the snow removal, issue? A Yes, it was. Q Can you describe the issue there? A She came over, I guess it was the winter of 2007, you know, after the first of the year, accusing us of throwing snow over in. to the area that she had cleared out. Q Okay. Did Mrs. King become involved in the snow issue at all? A I don't recall at that time. Q Well, did Mrs. King ever get involved in the issues that were arising between you and Kelly? A Yes, she did. Q Can you describe her attitude at that point? A Well, the attitude, I felt that she was angry. Q Angry at you? -- well, okay. moved. ere was some the situation yes. was that an 109 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q Why was she angry at you? A Because I didn't want to give the, my parkinc spaces that I was paying for in the lease to the other tenant. Q Did you feel your position was justified? A Yes. I believe it was. I mean it was clearly stated in the lease that I was leasing those. Q Can you turn to Plaintiff's 1 for me? That is the stack o f documents in front of you. A Yes. Q This is the lease between you and Mrs. King? A Yes. Q Do you know in the lease where it addresses the parking? A I'm not sure exactly right now, but I read there is refer ence to a line. Q How about, I will direct your attention -- well, so you f elt that you were entitled to the spaces that your customers were using at that point? A Yes. I felt that I was, you know, I mean I was within my rights to have the parking that I originally had leased. THE COURT: Let's get that nailed down. The only thing I saw about parking when I read this was 110 0 0 I paragraph 1. Is that it? 2 MR. YOUNG: Right. 3 THE COURT: If there is something else about 4 a line, direct me to that right now. 5 MR. YOUNG: No, I believe that paragraph 1 in 6 the lease addresses the parking situation. 7 BY MR. YOUNG: g Q So, Dave, could I direct your attention to 9 paragraph 1? Could you review that to yourself for me, 10 please, just so you are familiar with it? 11 A Paragraph 1 on P-1? 12 Q Correct. 13 A Yes. 14 Q Is this the part of the lease where you 15 gained your understanding -- no? 16 A No, no. It is in here someplace about a 17 line. 18 Q Well, did you have -- was it just a single 19 conversation? Well, did you talk to Mrs. King about the 20 parking situa tion at some point? 21 A Well, she, she, from my memory, she called 22 me -- 23 Q Okay. 24 A -- about it. What happened was, was I came 25 in on a Monda y and Kelly had lines painted and she had sign: 111 0 0 I made up. And the signs were in tr:e spaces that were 2 designated for the use with my property, with what I was 3 leasing. So I pulled the signs up and just laid then; on the 4 ground. And t hen I got a phone call from Mrs. King wanting 5 to know why I did that. And she explained to me that it 6 wasn't her fau lt, it was the township. That because Kelly 7 was putting in another chair, that the township required her 8 to have more, more parking. 9 Q She was -- she had a beauty salon. Right? 10 A Yes. 11 Q So when you are talking about a chair, we are 12 talking about another chair so people can get their hair 13 cut? 14 A Yes. 15 Q Okay. So can yo,z tell me when the issue with 16 the parking came up? A year? 17 A It was, I believe, in the spring of 2007. 18 Q Okay. And Mrs. King had expressed some 19 unhappiness about the situation, I think you said earlier? 20 A Yes. 21 Q Okay. But that, that whole episode, this was 22 a three year lease. Right? 23 A Yes. 24 Q And that all happened before the expiration 25 of the lease? 112 U • 1 A Oh, yes, yes- 2 THE COURT: Let me get the feeling of this 3 parking. On the whole place, both little building, big 4 building, how many parking spaces are there? Just roughly. 5 THE WITNESS: I would say about four in front 6 for the big building. And for the small building in front 7 it would be about two. And then you probably have got maybe 8 about 16 or 17 behind, directly behind the smaller building. 9 THE COURT: Not behind the bigger building? 10 THE WITNESS: No. Behind the big -- 11 THE COURT: There is 16 behind the smaller 12 building. How many behind your building? 13 THE WITNESS: You might be able to fit maybe 14 20. 15 THE COURT: I am just trying to get an idea 16 here of how many spaces. Do you have that many customers 17 there at a time that you would use all the spaces? 18 THE WITNESS: Only on occasion where we would 19 have schools would we need them. 20 BY MR. YOUNG: 21 Q Let me back up for a second. Dave, what does 22 your business do? 23 A We, we are a wholesale distribution business 24 to business. We sell carpet cleaning chemicals and 25 equipment to the carpet cleaners, and also restoration 113 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 chemicals and equipment to the people who do fire and water damage restoration, mobile mediation, that type of thing. Q How many customers would be in your place at any given time? A Usually there would be no more than one or two automobiles. Q Okay. So typically you would only be using couple of parking spaces? A That is correct. Q Okay. And you mentioned the schools before. Can you describe that for me? A Yes. We would have certification schools foi like fire damage restoration, water damage restoration, carpet cleaning, upholstery cleaning. There are certification classes for our customers, we would hold them. Q And I am assuming that more than one or two people attended those classes? A Yes. Q Okay. Is it safe to say your parking needs at the time of any particular class would grow? A Yes. I can't ever remember where we didn't have enough space though. Q Okay. And how often would you have those classes? A It depends. The first year because we were 114 • • 1 doing the renovations, we hadn't settled in, we didn't have 2 anything done for at least a year we didn't have anything. 3 Q Okay. So now this is taking us out to like 4 October of 2006 or so'? 5 A Yes. 6 Q Did Kelly move in after that? 7 A Yes. 8 Q How about after that point, after you got 9 settled in, how often did you have your classes then? 10 A We might have a class every other month at 11 the most. 12 Q So we are talking about a class every other 13 month for about two years from, say, October of 2006 until 14 the end of the lease in October 2008? 15 A Yes. 16 Q Okay. At that point there would be some 17 increased parking usage? 18 A Yes. 19 Q Fair enough. 20 THE COURT: One minute. How many people came 21 to these classes? 22 THE WITNESS: Usually, I mean the most was, I 23 know we didn't have any over 35. 35 would have been the 24 maximum. On average it was more like maybe 15, 10 to 15 is 25 what we would have. A lot of times it was people from the 115 1 same company so they would drive together, share, you know, 2 an automobile. 3 THE COURT: You said when Kelly put in the 4 extra chair the township told her she needed more space. Do 5 you know how many that was? 6 THE WITNESS: I'm not sure, but I can 7 remember telling Sandra King and Kelly that it didn't matter 8 because I don't -- my customers aren't. parking in those 9 spots. She is more than welcome to use them. I don't care 10 if they use them. Just during the day, I mean during my 11 hours, Monday through Friday, 8:00 a.m. to 5:00 p.m., that 12 they wouldn't park out in front of my building. 13 THE COURT: Okay. 14 THE WITNESS: But I was -- I have no problem 15 whatsoever with her e=ither, her customers parking anywhere 16 behind the buildings. 17 BY MR. YOUNG: 18 Q But, at any rate, by the summer of 2008 19 anyway, this is two and a half years into the lease more or 20 less, there had been some animosity between you and Kelly 21 regarding both the parking situation and the snow removal. 22 Right? 23 A Yes. 24 Q I think you previously stated that Mrs. King 25 had become involved in that controversy to some extent 116 0 0 1 anyway? 2 A Yes. 3 Q And t here was at least some unhappiness on 4 her part conc erning the parking and/or the snow? 5 A Yes. I mean during that phone call when she 6 was telling m e about Kelly having to have those spots, I 7 said about, y ou know , it doesn't matter because she can use, 8 you know, if nobody is parking there, she is more than 9 welcome. So that is no problem. At that point she said, 10 she said that you ar e not going to be able to buy the 11 building. 12 Q Okay. So was there a time limitation on your 13 ability to ex ercise your option to purchase? 14 A Yes, there was a time limitation. 15 Q And, at any rate, did you attempt to exercise 16 -- did you at tempt t o purchase the building? 17 A Yes. 18 Q And when generally did you do that? 19 A Well, I sent out, you know, the letter 20 informing her that I was going to go ahead with the offer 21 that she made up in 2005. 22 Q Okay. Could you turn to in the loose stack 23 of paper Plai ntiff 5 ? 24 A Yes, that is the acceptance letter. 25 Q This is the letter that you sent to Mrs. 117 • 0 1 King? 2 A Yes, it. is. 3 Q And what was your intention in sending this 4 letter to Mr s. King? 5 A To make sure that I would be able to purchase 6 the property because in the lease it said that I had to let 7 her know 90 days prior to the termination of the lease, the 8 end of the l ease. 9 Q Okay. How did Mrs. King respond to this 10 letter? 11 A She made up another, you know, different 12 terms. She came back with different terms than what she had 13 put in the October 2005 offer. 14 Q Could you turn to Plaintiff's 6 for me? Was 15 this the res ponse back that you received from Mrs. King? 16 A Yes. 17 Q Okay. And I think you indicated earlier that 18 in her correspondence here she was demanding a down payment? 19 A Yes. 20 Q And in the fall of 2005 you had never 21 discussed a down payment? 22 A In -- no, no, not prior to 2005, no. 23 Q So is this the first time she had raised the 24 down payment? 25 A No. 118 0 0 1 Q When did she raise it? 2 A Well, when I said that Kelly couldn°t put the 3 signs up on t he parking spots that were designated mine, shE 4 said you are not going to be able to buy the property 5 because y ou a re not going to be able to afford the down 6 payment. And at that point I said what down payment. You 7 said noth ing about a down payment. 8 Q Okay. So this is, this is she raised the 9 issue of the down payment after you moved into the space. 10 Correct? 11 A Yes. 12 Q And after you had made the alterations to the 13 property? 14 A Yes. 15 Q And in the midst of this dispute with Kelly? 16 A Yes. 17 Q Okay. That was the first time she raised the 18 issue of a do wn payment? 19 A That was the first. 20 Q And what was your reaction to that? 21 A Well, just what I said, I said what down 22 payment. You said nothing about a down payment. 23 Q Okay. And when she later put the issue of 24 the down paym ent in writing, now we are talking about 25 Plaintiff Exh ibit 6? 119 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 • C A Yes. Q You can see there are a number of other term. in there? A Yes. Q And how did you react to that? A Well, what I thought is we already agreed to something, now she is trying to change it, what we agreed to. Q So in your mind she was trying to change the terms of the deal? A Yes. Q Okay. Did you think that was fair? A No. Q Okay. Did you consider there to be a disputE between the parties at that point? A I thought there probably would be, yeah. Q So what happened then? A Well, I didn't answer this because I thought it would be fruitless. I am almost a hundred percent sure all we would do is argue about it. -)o I didn't respond to it. I just figured that the document we had both agreed to should be, you know, I thought it would be legal and that that is what we would wind up doing. Q Could you turn to Plaintiff 2 for me? When you said earlier that the document we agreed to would be 120 • 0 1 legal, is this the document you are talking about? 2 A Yes, that is it. 3 Q Okay. Why -- well, this document is 4 notarized. Correct? 5 A Yes. 6 Q And why did you get it notarized? 7 A Because I wanted to protect my interests that 8 Mrs. King would -- I wanted to make sure she would live up 9 to the agreement. 10 Q The agreement to sell the property to you? 11 A Under those terms, yes. 12 Q Do you believe she has done that? 13 A No. 14 Q Okay. Could you go to tab number 12 in the 15 notebook for m e? Can you tell me what this document is? 16 A That is, it is my ledger or Mrs. King's 17 ledger in my a ccounting system. And it reflects the 18 payments made to Mrs. King. 19 Q The payments -- well, when do the payments 20 start? I mean they start in October of 2008. You said that 21 this reflects payments to Mrs. King. Correct? 22 A Yes. 23 Q From when until when? 24 A Well, from, from advise from counsel, there 25 is a letter th at we have that states that, unlike a lease 121 • • 1 payment, a mortgage payment is made at the end of the month 2 and not -- or you pay after the fact. Where a lease you pay 3 up front for the use of the property, you pay up front. And 4 the mortgage is like after. But anyway, the first is laid 5 out by counsel, I believe it was December was supposed to be 6 the first mortgage payment. No -- 7 Q Dave, I just asked you what period of time 8 Exhibit 12 covers. 9 A Oh. It. covers from October 31st to present 10 of 2008. 11 Q Okay. So this reflects your payments to Mrs. 12 King from October of 2008 to the present time? 13 A Yes. 14 Q How much have you paid to Mrs. King from 15 October of 2008 to the present time? 16 A $108,565.37. 17 Q Did you consider those payments to be 18 payments toward the purchase of the property? 19 A Yes. 20 Q I think we heard earlier -- well, how did you 21 come up with the amounts that are paid there? You can see 22 that the figure there every month appears to be $2,747.83. 23 Do you see that? 24 A Yes. 25 Q How did you come up with that number? 122 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 Well, I took an amortization table and the amount over a 20 year period, came up with the monthly, the monthly payment. I went to the township and I found out what the taxes were and the other expenses, and I divided it by 12, what the annual was divided by 12, and I added that to the amortization amount. Q Could you turn to tab 13 for me? Can you tell me what the first page of document 13 is? A That is the sheet that I did the calculating, where I did the calculating to come up with the amount to pay Sandra king. Q Okay. So earlier we were talking about payments of $2,747.83. Do you recall that discussion? A 2000 -- Q $2,747.83. A Yes. Q You just indicated that Exhibit 13 reflects your calculations on how you came up with that figure? A Yes. Q Can you explain how it indicates the payment that you made? A Yes. Q Okay. A My first payment, you will see that my first payment had the full amount. But Mrs. King was still 123 0 • 1 collecting rent from Halo. So after I saw that she wasn't 2 going to have Halo, you know, remit the lease payment to me, 3 I started deducting it from the mortgage payment. 4 Q And where on Exhibit 13 is that reflected? 5 A Let me see. About halfway down on the 6 right-hand side. 7 Q Where it says less Halo $1400.00. Is -iat 8 what you are talking about? 9 A Yes, that is. 10 Q Can you take me through the total ca_cuatior 11 'mere? I mean -- 12 A Okay. Let me see, starting from the very 13 beginning, the 564,000? 14 Q Right. 15 A Okay. The security deposit, th.3-t 16 deducted -- 17 Q Okay. 18 A --- from the total amount. An.d then, we have 19 the annual taxes. 20 Q You are talking about, you are talr.i.rng about 21 the figures on the right-hand side? 22 A Yes, yes. Which totaled $5,129.31. Then you 23 have the sewage. And if you divide that by 12, you should 24 come up with $427.44. You can see that is what I added on 25 to the monthly payment, the $$3,699.05. 1 24 • 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 Okay. A So the total payment with the sewage being paid quarterly should have been $4,142.49. Q Okay. And now it indicates there an amount paid of $3850.00. Do you see where I am talking about? A No. Where? Q Right underneath the total payment, then it says amount paid. On the left-hand side. A On the left-hand. Oh, okay. You mean the $4,147.83 there? Q Right. A Yes, an amount paid -- so I owed -- yeah, if you add those two up -- well, actually it doesn't. But that was making up the difference -- yeah, that makes up the difference, I'm sorry, that $297.83 makes up that differencE between the $4,147.83 and the 3,850.00. Q Okay. So I think you previously talked about the issue about the timing of the lease versus a mortgage payment. Do you recall that testimony? A Yes. Q At any rate, and you said your first payment was the $3,850.00? A Yes. Q Okay. And was the next payment the $297.83? A Yes. Well -- yes. 125 0 0 1 Q Okay. Go ahead. 2 A That was the balance that was due on it, yes. 3 Q How about the payments after that point? 4 A Well, since I wasn't receiving anything from 5 Kelly I was deducting the amount that was going to Mrs. 6 King. 7 Q Okay. 8 THE COURT: Why did you pick 3850 as the 9 first payment? That seems to correspond with what she said 10 was the new rent. 11 THE WITNESS: It was after counsel. I didn't 12 want to be late. So I wanted to send in something. And it 13 was after counsel, then counsel informed me what to do since 14 she wasn't going to sell it. You know, she wasn't going to 15 sell so -- 16 BY MR. YOUNG: 17 Q The payments that we were talking about on 18 Exhibit 12 of $2,747.83, those payments, is that the 19 difference between the 4147.83 less the $1400.00? 20 A That is correct. 21 Q Okay. And that is how you came up with the 22 monthly payment that you were making to Mrs. King? 23 A Yes. 24 Q Okay. Have you continued to make those 25 payments? 126 0 0 1 A Yes. 2 Q Okay. To date you paid her $108,565.37? 3 A That is correct. 4 Q Okay. And that is what reflected on Exhibit 5 2, the second page in the notebook? 6 A You said second page. 7 Q The second page on Exhibit 12. The notebook. 8 A Oh. 9 Q Is that a yes? 10 A Now, am I looking at the amortization? 11 Q Well, I asked you questions about the first 12 page of Defendant Exhibit 12. Specifically I asked you -- 13 are you on Defendant Exhibit 12 in your notebook? 14 A I am on D-13. 15 Q I thought I lost you. I apologize. 16 A Yes, I think I am lost. 17 Q I am on D-12. The $2747.83 that appears in 18 the debit amo unt there -- 19 A Yes. 20 Q That is the -- 21 A That reflects the payment. 22 Q And those payments were toward the purchase 23 of the proper ty, in your mind? 24 A Yes. 25 Q Okay. And they are reduced by the rent 127 • • 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 payments that Mrs. King was receiving from Kelly Deardorff Palumbo? A That is correct. Q And that reduction gives you the 2747.83? A Yes. Q Okay. Going back to Defendant Exhibit 13 -- sorry to flip back and forth -- going to page 2 on Defendant Exhibit 13. A The amortization schedule. Q Yes. This is the amortization schedule that you reference d earlier? A Yes. Q Okay. Did you put the numerical figures intc the amortizat ion schedule here? A Yes. Q Okay. And based on the figures that you put in, these, th ese are the results that were generated? A Yes. Q And, as of today, do you know how much is owed on the mortgage to Mrs. King? A I'm showing a balance of 502,883.29. Q Okay. And where is that figure in the amortization schedule? A It is line 40. Q That is the second page. 128 • C7 1 A Number 39, I`m sorry. Year, that is on the 2 second page, third one down. 3 Q Okay. So am I correct that as of this point 4 in time, you paid Mrs. King a little over $108,000.00 in 5 payments tow ard the purchase of the property?' 6 A That is correct. 7 Q And you believe that based on the five 8 percent inte rest that you owe her g502,883.00 on the 9 mortgage? 10 A Yes. 11 Q Okay. That is from the figures that were 12 generated as a result. of the initial data that you put into 13 this amortiz ation schedule? 14 A Yes. 15 Q Okay. And I think you made an earlier 16 reference to this, but the column there for the scheduled 17 payment, do you see the column for scheduled payment in the 18 amortization schedule? 19 A Yes. 20 Q That is the $3,699.05. Do you see that 21 figure? 22 A Yes. 23 Q Is that where you get your, the information 24 for the monthly payment identified in the exhibit, in 25 Defendant Exhibit 13? 129 • • 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 Yes. Q Okay. So you used this amortization schedulE to get, well, not only the remaining balance of the mortgage, but also the total payment that was due at any given time? A Yes. Q And you then took that total payment and put it into figures on the first page of Exhibit 13? A Yes. Q You included the taxes? A Yes. Q And then you deducted 14 -- MR. ADLER: I am going to object. He is, the attorney is testifying. BY MR. YOUNG: Q Did you inciude the taxes? A Yes. Q Okay. And did you reduce it, the figure by $1400.00 that was coming to Mrs. King? A Yes. Q Okay. I want to back up and cover an issue that I am not sure we covered before. So we are going back in time to 2005 because I am not sure we covered this adequately. Did you receive the lease agreement before you received the offer from Mrs. King? 130 • • 1 A The -- 2 Q Back to the fall -- 3 A She sent me the letter of what she proposed 4 on the 11th. And then I received the lease agreement after 5 that, but I s aid that I would not sign it. That is why I 6 sent her the letter saying that I -- 7 Q Right. g A -- I didn't want to go ahead. 9 Q I would like you to go to Defendant Exhibit 10 19 in the not ebook. Are you at Defendant Exhibit 19? 11 A Yes, I am. 12 Q What is Defendant Exhibit 19? 13 A It is the, a letter stating that the lease 14 agreement was enclosed and some other information. 15 Q Okay. Was this the letter that you received 16 from Mrs. King with the lease agreement? 17 A Yes. 18 Q Okay. And how did you respond to that? 19 A By sending her a letter stating that I would 20 have to h ave the offer drawn up and both of us sign it 21 before I woul d be able to go ahead because that was 22 important to me. 23 Q Could you move forward to tab 20 for me, 24 Defendant Exh ibit 20? Is this the letter responding to 25 Defendant Exh ibit 19? 131 • • 1 A Yes, it is. 2 Q Okay. So this is the letter where you told 3 Mrs. King that you needed the offer? 4 A Yes. 5 Q Okay. And that is your signature on there? 6 A Yes, it is. 7 Q And did you send this to Mrs. King? 8 A Yes, I did. 9 Q Okay. And the reference there to letter 10 enclosed sent October :11, 2005? 11 A Yes. 12 Q Is that a reference to Defendant Exhibit 17? 13 If you would flip to tab 17 for me. 14 A Yes, it is. 15 Q Okay. So you thought you needed something 16 more than the letter of October 11th? 17 A Yes. I was not willing to move in without 18 the agreement. 19 Q And when you say agreement, do you mean the 20 offer that you received from Mrs. King? 21 A Yes, yes. 22 Q The offer that was later notarized? 23 A Yes. 24 Q I think you said earlier that you needed or 25 you wanted that offer notarized to protect yourself? 132 0 0 I A Yes. 2 MR. YOUNG: I don't have anything else for 3 Mr. Winston. 4 THE COURT: Cress-examine. 5 MR. ADLER: Thank you. 6 CROSS-EXAMINATION 7 BY MR. ADLER: 8 Q The lease in paragraph 20, that is Plaintiff 9 Exhibit 1, paragraph 20, states that you would have a right 10 of first refusal? 11 A Yes. 12 Q Do you know what a right of first refusal is' 13 A I believe so. That I would have to be given 14 the opportunity, before she could sell it to anybody else, 15 would have to be given the opportunity to purchase. 16 Q If I was to suggest -- you can agree with me 17 or disagree with me whether you think this is a right of 18 first refusal -- that. a right of first refusal is when a 19 seller offers it to a third party at a certain price and 20, then you have a certain period of time to match that price. 21 Is that how you understand right of first refusal? 22 A Yes, under normal conditions. 23 Q Okay. So this statement in paragraph 20 of 24 the lease didn't exactly reflect what you were trying to get 25 to because the deal wasn't she was going to offer it to a 133 • • 1 third party and then you match that price. Correct? 2 A Would you ask that again? I'm sorry. 3 Q How I just stated, what I just stated the 4 right of first refusal to be and what you just agreed with 5 doesn't match what this deal was. Does it? 6 A I wasn't looking at that. I was looking at 7 the separate document. 8 Q So this paragraph in the lease would 9 contradict the separate document? 10 A I guess you could -- 11 MR. YOUNG: Objection. He is 12 mischaracterizing the evidence. 13 BY MR. ADLER: 14 Q I am asking do you think this paragraph 20 it 15 the lease would contradict the separate document, the offer 16 of Plaintiff Exhibit 2? 17 A Yeah, I think, I think it would. Because we 18 had agreed like it wouldn't go to the highest bidder. 19 Q That is all. That is all I needed. That 20 right of first refusal in paragraph 20, there weren't any 21 terms in that right of first refusal, were there, such as 22 purchase price or loan back or anything like teat? 23 A The terms were in the letter from October 11. 24 Q But there were no terms in that paragraph 20' 25 A Not in the lease. 134 • • 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 Now, in the offer that is Plaintiff Exhibit 2' there are no words like grant or convey, like I am granting an option to you, I am conveying an option to you, I am giving you the right to buy the property. There is nothing like that in that exhibit. Is there? MR. YOUNG: You can look at it. BY MR. ADLER: Q You can look at it. Plaintiff Exhibit 2. A What page is it on? Q The first page, P-2. A This is, this is what she proposed. Q Right. I am asking you, is there any language in there that says I am granting you the option to purchase this property, I am giving you the right to purchase this property, I am conveying you the right to purchase this property, anything like that? A I think that is the understanding. But it is not in those words. Q It doesn't say that? A No. Q The only thing it actually says is that she will guarantee you an agreement of sale mortgage rate of five percent. Do you know what an agreement of sale mortgage is? A I, I wish we would have gone to an attorney 135 • 1 like I had suggested. No, I don't. She said that she could 2 do it and apparently it was -- I mean now we are having 3 problems. 4 Q So do you know what an agreement of sale 5 mortgage is? 6 A I don't know all the particulars. I could 7 imagine what it would be. It would be an agreement between 8 the two parties. 9 Q For what? 10 A To purchase a property. 11 Q Would an agreement of sale, would a deal donE 12 as an agreement of sale differ from a deal done as a 13 mortgage? 14 A It -- I don't know what you mean by that. 15 Q Okay. So you didn't know what was meant by 16 this agreement? 17 A What it meant to me was that she was going tc 18 sell me the property at the end of the lease under these 19 terms. 20 Q I know what it meant to you. But you don't 21 know what the language in there actually means. Do you? 22 MR. YOUNG: Objection. Now he is arguing 23 with the witness. 24 THE COURT: Well, basically what you told me 25 is you don't know. Right? 136 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 C7 THE WITNESS: Right. I did not know. 1 mean I am not into real estate, into law. BY MR. ADLER: Q What is your commercial real estate experience? A Just leasing is all. Q So just us a sample of your leasing experience, commercial leasing experience before this building. A I had -- do you want the number of leasing experiences? THE COURT: I do. How many buildings have you leased before this one? THE WITNESS: One, two -- it would be two before, prior to this. BY MR. ADDER: Q Starting when? A Now, the one building I moved from one area to another. So it was three moves. Q So when was your first commercial leasing experience? A Oh, it. was -- MR. YOUNG: Are we talking as a tenant or a landlord? MR. ADLER: Anything. 137 1 THE COURT: I am just trying to get some 2 experience level here. How long have you been in business? 3 THE WITNESS: I have been in business since 4 1980. 5 THE COURT: All right. When you first went 6 into business did you requi re a building? 7 THE WITNESS: No. I started as a carpet 8 cleaner. 9 THE COURT: When did you start to require 10 having to have buildings? 11 THE WITNESS: Once I started distributing 12 products. 13 THE COURT: When was that? 14 THE WITNESS: That was in 1987. 15 THE COURT: So 1987 you finally got around tc 16 needing a building. Right? 17 THE WETNESS: Well, I didn't actually start 18 using -- I was doing it out of my home for the first year. 19 THE COURT: Okay. 20 THE WETNESS: Then after that. So it was 21 probably around 1988, 1989, in that area, was the first time 22 that I leased anything for commercial leases. 23 THE COURT: Now, you say you had two leases. 24 So that was the first one i n 1988 or 189. How long did you 25 stay in that building? 138 C, • 1 THE WITNESS: I stayed there for probably 2 about two years. 3 THE COURT: Then you got the second lease? 4 THE WITNESS: Yes. 5 THE COURT: So that is around 1990, '91. 6 THE WITNESS: Yes. 7 THE COURT: How long did you stay in that 8 building? 9 THE WITNESS: Until 2005. 10 THE COURT: So about 15 years you were in 11 that building. 12 BY MR. ADLER: 13 Q So this is your only commercial building sal( 14 experience, thi s 4609? 15 A That is correct. 16 Q So this is your first commercial building 17 sale experience? 18 A That is correct. 19 Q You never had any training, education in thi: 20 area? 21 A No. 22 Q Now, looking at P-2, the statement says, The 23 property owner, Sandra S. King, will guarantee Mr. Dave 24 Winston an agre ement of sale mortgage rate of five percent 25 at that time. It doesn't say how much the mortgage will be. 139 • • 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 Does it? A will be. Q No. I mean it doesn't give you the amount of the mortgage. Does it? A Oh, which document are we on? Q P-2. The offer. A It does -- doesn't it say how much I'm going to owe at the end, the 600,000 minus the 36,000.00? Q I am talking about the amount of the mortgage, the amount you have to borrow from Mrs. King. A I would assume it would be the 564,000. Q You would assume. But it doesn't say that. Does it? A It does not say that. Q So it could be inferred that there might be a down payment required and the mortgage would be the difference between the down payment and the purchase price? A If there was going to be a down payment then why wasn't it put in there? I don't feel it is fair to somebody to say I will sell to you for this amount at five percent and then you can do whatever you want. I mean what is to keep somebody from saying I want $500,000.00 down? Q Nothing. But -- A So if, if you take the trouble to say, you It says how much the amount of the mortgage 140 • • 1 know, it is 600,000 minus a thousand a month, and five 2 percent, why if you want a down payment, why wouldn't you 3 ask for it? 4 Q Let me ask you this, if you wanted to fix the 5 mortgage amount at 564,000, why wouldn't you ask for it? 6 A Again, I'm sorry. 7 Q I mean it the reverse of that. If you wanted 8 the mortgage amount at the purchase price, $564,000.00, why 9 wouldn't you ask for it? 10 A I wasn't the one that drew the document up. 11 Q Okay. But you signed it? 12 A Yes. 13 Q Why didn't you ask for it, the $564,000.00 14 mortgage? 15 A A lot of times motivated sellers are willing 16 to give good terms. I was thinking that this was part of 17 it, that she wasn't going to require a down payment, and I 18 assumed that the term would be what was normal for the 19 industry or for -- 20 Q Right. You were thinking, you were assuming. 21 That is corr ect, that was all in your head. 22 A That is what was running through my mind, 23 yes. 24 Q You didn't express this to her, you didn't 25 tell her put the 564 in? And you are also saying that, 141 • 1 well, this was standard in the industry. How do you know I 2 what is standard in the industry? You have no experience 3 with this at all. 4 A Before I moved in with -- before signing a 5 lease with Sandra King, I was looking at other options to 6 buy. And that is where, by investigating that, is how I 7 found what was standard for the industry, which is 20 years. 8 Q That is not what we are talking about. We 9 are talking about the amount of the mortgage. Did you find 10 that was standard in the industry that someone would give 11 you a hundred percent: financing? 12 A Yes, motivated sellers do that. 13 Q Did you find that on the internet? 14 A No. I mean people buy with nothing down all 15 the time with motivated sellers. They are able to work out, 16 you know, I mean -- 17 Q I hear you making these statements. But you 18 really don't have any experience i_n this area? 19 A No, I do not. 20 Q Okay. You didn't pay Mrs. King anything for 21 the privilege of this offer, P-2? You didn't pay her 22 anything in addition to the $3500.00 a month rent when you 23 entered into this October 31, 2005, agreement? 24 A No. She offered it to me. 25 Q Right. I am just asking you, you didn't pay 142 • • 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 anything for it? A No. Q Separate from the rent? A I didn't ask for it. She offered -- Q Let me ask it one more time. You didn't pay anything when you got, when you two signed this October 31, 2005, offer? A No. Q Now, you took I guess the original offer, this original document that was notarized, and you recorded it? A Yes. Q But it doesn't say you can record it. Does it? A No. Q And it. doesn't say you can't record it? A Right. Q So that was another ambiguity in the document. Wasn't it? A I don't, I don't know. I mean I don't know what the law is on it. Q Now, on the 20 year term, I mean this document says nothing about a 20 year term, does it, on the mortgage? A No. 143 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 So you did research on the internet and you came up with this 20 year term? A No. Talking to my, you know, to the banker, talking to real estate people. Q Okay. So talking to the people that you talked to, they said 20 was reasonable? A Yes. Q Now, did you introduce the 20 year term to them as a concept or did they just tell you that 20 years was reasonable? A They told me what was, what was doable, in 2C years. Q What was doable? A Yes. You know, what months -- I think that is standard for the industry is 20 years. Q Well, if you go to get a mortgage on your house, I mean you can get a ten year mortgage? A That is resident ial. That is different. Q You can get a 30 year mortgage. Same thing with commercial loans. Right? A I don't know. Q With the bank it can be different terms? A Usually they won 't go more than 20 years. Q They won't go mo re than? A Usually. 144 • 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 All right. But they will go less than? A They usually go 20 is what most of them are, I believe. Q So you just assumed that this was the standard and that this should be inserted into this agreement, but mentioned nothing about that? MR. YOUNG: Object=ion. He is mi.schar.acteri.zing the testimony. THE COURT: Just rephrase the question. BY MR. ADLER: Q This document says nothing about a 20 year term? A That is correc-:?. Q So, I mean you felt the 20 year term was a reasonable term? A Well, I know that I was looking at 20 years because I had done the calculations to see if it was within my budget to make the mortgage payments. Q So the 20 years fit your budget? A Yes. Q Right? A Yes. Q That was one of the primary motivating factors for you to select 20 years? A Yes. 145 0 0 1 Q Because it fit your budget? 2 A Yes. 3 Q Not because it was reasonable or standard, 4 but that -- 5 A No, no. That is what I found that it was, 6 that is what is standard. I think if you talk to commercial 7 realtors, that they will say it is standard. 8 Q Your primary reason was because it fit your 9 budget? 10 A Yes. 11 Q You couldn't afford a I5 year? 12 MR. YOUNG: Would you please let the witness 13 finish? 14 MR. ADLER: He said yes. 15 THE WITNESS: I may not have been able to, 16 no. It would have made it more difficult. 17 BY MR. ADLER: 18 Q You looked at it, didn't you, the possibility 19 of a 15 year mortgage? 20 A No. I just assumed it was going to be what 21 was standard. 22 Q At that time you didn't calculate what the 23 monthly payment under a 15 year mortgage would have been? 24 A I can't remember doing that. 25 Q So you felt this was standard, but Mrs. King i46 9 0 I was never consulted on that? You never talked to her about 2 20 years. Did you? 3 A No. 4 Q Not until I guess her August 1, 2008, letter 5 did this even come up when you had said, yes, I want to 6 purchase the property, and she said okay, I will give you a 7 15 year mortg age. That is when it first came up between the 8 two of you? g A You mean as far as the term, the number of 10 years? 11 Q The amortization of the mortgage, yes. 12 A Yes, I believe that is correct. 13 Q So just going back to this P-2, the offer, it 14 did not have a mortgage amount. Correct? 15 A It had an amount, but it -- 16 Q I am asking you did it say how much Sandra 17 King would lend you to purchase this property? 18 A I assumed it was the 600,000 minus the 36. 19 Q I know you assumed. But it is not there. I= 20 it? 21 A No. But she said she would lend me the money 22 at five percent. 23 Q I understand. But the mortgage amount is not 24 there? 25 A No, a specific number isn't there. And I 147 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 • • don't know why it wouldn't be if she wanted it. Q That is fine. The loan amortization is not there. Is it? A No. Q There is no mention whether there would be or would not be a down payment. Is there? A No. Q There is no mention of having to document the payment of real estate taxes or insurance. Is there? A No. Q There is no mention of who would be responsible for the real estate taxes. Is there? A No. Q No mention of how you should maintain the property during the mortgage term. Is there? A No. Q And there is no mention of remedies that might be exercised in the event of your default. Is there? A No. Q During the time of your negotiations this Mr. Walker was involved. Now, at one point, as Mrs. King understands it, you were able to make this 144 down payment because of their involvement. Tell us what was going on there? MR. YOUNG: Objection. When are we talking 148 0 0 1 about here? 2 BY MR. ADLER: 3 Q Whenever Mr. Walker was involved along with 4 Howard Hanna. I mean you are aware that Walker and Hanna 5 were involved in this transaction! 6 A Yes, yes. 7 Q Mrs. King mentioned that they were acting as 8 your agents? 9 A They weren't acting as my agent. 10 Q Well, just tell us what was going on there? 11 A They wanted to buy the property. 12 Q Did you ever tell Mrs. King that they wanted 13 to buy the pro perty? 14 A No. 15 Q So she has this offer outstanding and they 16 are coming dir ectly to her to try to work out this deal that 17 she has no kno wledge of. Right? 18 A Well, they saw I had this agreement so they 19 were working w ith me because of the agreement. 20 Q Okay. But you didn't tell Mrs. King that 21 they were even involved in this. Right? 22 A Why would I need to? As long as, you know, 23 in the end if she got her money that was in this, why would 24 there be a need? 25 THE COURT: Tell me this, how did they find 149 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 • out about this deal that you had? Did you go to them. and say, here, look at this piece of paper? THE WITNESS: No. Actually Carl Walker, the first time he came in about signing, he said, are you the owner. And I said, no, I am not. But I have an agreement to purchase the property at the end of the lease. I showed him the document. And then they started negotiating with me to buy the property. They were willing to pay ten percent over appraised value. But everything fell apart when the market went. They decided not to go ahead. So then I didn't have the money for Sandra King. BY MR. ADLER: Q So at one point your attorney is representin to Mrs. King that, yes, we have the down payment, we can do this deal because you felt Walker was involved? A That is correct. Q And then that fell apart? A Yes. Q And you never informed Mrs. King as to where this whole deal came from? You never told her where Walker came from, what involvement -- A What good would that do? Q Can you see the mistrust it bred? Because a one point, at one point your attorney is telling her we hav the down payment, and then it suddenly disappears and no on 150 • • 1 ever verifies where the down payment came from? 2 A I think it was in a letter that it fell 3 apart. I think it was. 4 Q That the deal fell apart. But it wasn't a 5 letter that you couldn't come up with the down payment all 6 of a sudden? 7 A I believe it was. Wasn't it? Isn't there a 8 letter that states -- 9 Q That states that you couldn't come up with 10 the down payment? 11 A It wasn't going to happen the way we thought 12 it was. 13 Q Right. And you never gave Mrs. King an 14 explanation for that. Did you? 15 A I thought that there was an explanation from 16 James Miller, Attorney Miller. 17 Q Well, if you can find that somewhere, I would 18 be happy to look at it. But I don't believe that was ever 19 explained to her. 20 A I don't know. I mean I don't know what they 21 discussed either. 22 Q Throughout the terms of the negotiations witr 23 Mrs. King you never budged on the 20 year amortization. Did 24 you? 25 A Yes, I did. I said that I would be willing 151 • • 1 to do a balloon payment. 2 Q That's not the same thing. I mean you still 3 wouldn't increase the payment of the monthly payment by 4 decreasing the term of the mortgage. Would you? Do you 5 understand what I am :talking about? 6 A My budget would not allow me to. 7 Q Okay. 8 A I mean I don't want, I don't want to -- 9 businesses run on cash flow. 10 Q I understand that. You couldn't afford a 15 11 year amortization? 12 A I don't know. I might have been able to. 13 But I would be putting the business in jeopardy possibly 14 because of that. 15 Q You, yourself, could not afford the down 16 payment? 17 A No, I could not. 18 Q And you, yourself, could not go to a bank, I 19 mean through the course of these negotiations, at the end of 20 the initial lease term, you, yourself, could not go to a 21 bank and get an independent loan to purchase this property 22 for $564,000.00 because you did not qualify for that? 23 A That is correct, that is correct. And that 24 is why I liked the offer that I was given. 25 Q Now, when you started paying the $2747.83 152 • • 1 beginning January 1, 2009, you knew that Mrs. -- I mean ever 2 though Mrs. King took the payment, you knew she didn't agreE 3 with that pa yment? 4 A Yeah, I believe, but I was advised by counse_ 5 to do that. 6 Q All right. But she never agreed to it? 7 A No. 8 Q Throughout the whole course of this dealing 9 she never agreed to it? 10 A We never came to a meeting of the minds on 11 that, no. 12 Q Now, okay, so that was just you and your 13 counsel deci ded on that figure? 14 A Yeah. I was being directed by my counsel 15 pretty much. 16 Q Just so the record is clear because I was 17 rather confu sed by your explanation of how you got to the 18 $2747.83, I would like to run you through that so it is 19 clear on the record where that came from. 20 A Okay. 21 Q You took the sales price of 564,000 -- 22 A Let me see where are we. 17 is it? 23 MR. YOUNG: I believe it is Defendant Exhibit 24 13. 25 THE WITNESS: Which one is it? 153 0 0 1 MR. YOUNG: 13. 2 THE WTTNESS: Yes: Okay. 3 BY MR. ADLER: 4 Q You took the sale price of $564,000.00? 5 A Yes. 6 Q You subtracted the down payment that you gav( 7 Mrs. King under the lease? 8 A The deposit. 9 Q Right. The deposit., you're right. Security 10 deposit. You subtracted the security deposit in the amount 11 of $3500.00 from that 564? 12 A Yes. 13 Q Your remaining balance was 560,500.00? 14 A Correct. 15 Q You calculated your mortgage based on 16 $560,500.00? 17 A I believe so, yes. 18 Q You then amortized that over 20 years? 19 A Yes. 20 Q That monthly payment would have been 21 $3,699.05? 22 A Correct. 23 Q You then subtracted $1.400.00 a month because 24 of the rent that you assumed Mrs. King was getting from 25 Kelly Deardorff? 154 • • 1 A Correct. 2 Q That netted $2299.05? 3 A See, I don't see -- 4 Q Well, it might not be on your exhibit. 5 A Okay. 6 Q Then you added taxes and sewer on to that in 7 the amount of $448.70? 8 A Okay. 9 Q For a total payment of $2747.83? 10 A Yes. 11 Q Okay. Now, how did you come up with the 12 $1400.00 a month in rent from Kelly Deardorff? 13 A I don't know if Kelly told the gentleman that 14 worked with me how much it was. I got it somehow. I'm not 15 sure. I kno w it was 1380 though now. 16 Q You know now it is 1380? 17 A I do now know, yes. 18 Q So wouldn't you agree that adjusted should 19 have been de ducted by $20.00 a month? 20 A I would be glad to do that. But also there 21 is an issue over 300, 300 some -- I figured it might be 22 around 368, Sandra King in the one letter said it is 391. 23 Where if the document is legal and if I am purchasing, she 24 would owe me money for that space because I don't have it 25 available. 155 • • 1 Q Yeah. But you don't, you don't have any 2 independent per son in here to say what that space rented 3 for, should ren t for? 4 A No, I don't know. 5 Q So that $20.00 a month really ran from 6 December '08 to June '09, about seven months, so that should 7 be a -- 8 A Well, I would think that the rental on 300 9 some square fee t would be more than $20.00. 10 Q You would think, but you don't know? 11 A I don't know for sure, no. 12 Q So that rent would be $140.00. So that would 13 be $140.00 addi tion to the amount you owe? 14 A If that, if it doesn't rent for that, yes. 15 Q You saw the lease in our exhibits, the lease 16 for 1380, that was the rent she paid, not 1400. Do you 17 admit to that? Right? 18 A Yes. And the only reason why I paid that is 19 because I needed to pay something. I, I just did not want 20 to stop paying. And then that is when counsel said you want 21 to be making the mortgage payments. 22 Q All I am referring to is the Deardorff 23 deduction that you made should have been 1380 instead of 24 1400 for seven months? 25 A That is, yes. 156 • • 1 Q Which adds $1.40.00 to the amount you owe. 2 Now, you are aware that Kelly Deardorff moved out in June of 3 2009? 4 A Yes. 5 Q So Mrs. King was no longer getting the 6 $1380.00 a month? 7 A That is correct. 8 Q And you heard Mrs. King testify as to her 9 efforts to re-rent that property? 10 A Well, I had a few people stop in inquiring 11 about the empty building that I sent to Mrs. King. And alsc 12 I had Marilyn Mullen, she worked with me for a couple years, 13 she called Sandra and said about, you know, renting it. Anc 14 Sandra King says I am not going to rent to anybody because 15 of the way Dave treats the tenants. 16 Q But today you heard her testimony that made 17 the efforts to re-rent it? 18 A I heard it, yes. 19 Q And actually paid a commission on a short 20 term rental that rented the building, although they never 21 occupied it? 22 A But nonetheless she still said she could not 23 rent that property. 24 Q She said it. But that wasn't her testimony 25 today and she had evidence to back it up. 157 0 0 1 Knowing that she made efforts to re-.rent the 2 property, and t hat she actually dial re-rent the property foz 3 a short period of time, shouldn't the 1380 had been added 4 back into your payment for that period of time? 5 A I don't believe so, no. 6 Q Why not? 7 A Because I don't have any control or whether 8 that is rented or not. I mean if she is going do be paying 9 the full amount , what does she care if it is rented? 10 Q What do you mean? 11 A If I am going to pay her the full amount and 12 not deduct a po rtion of it, then what would be the 13 motivation for Sandra Kina to want to lease it out? 14 Q Well, I mean I don't have to answer that 15 except when we took your depos?i.tion -- I am going to have 16 you read -- 17 MR. ADLER: You have this. Right? You have 18 his deposition? 19 MR. YOUNG: Sure, yeah. 20 BY MR. ADLER: 21 Q This is the deposition we took on February 8, 22 2011. 23 A At your place. 24 Q Right. Just let me get a starting place. I 25 am going to hav e you start reading from line 5, from page 158 • • 1 44. 2 A Okay. (Reading) Question -- 3 Q From me? 4 A Yes. Question: Now, are you aware that Hal( 5 moved out in May of 2009? Answer: Yes. 6 Q Your answer? 7 A Yes. Question: Okay. Do you want me to do 8 counselor -- 9 Q No, we understand? 10 A Question: So Sandra stopped getting the reni 11 in May of 200 9? Now, you know, I don't know whether she dic 12 or not, but I did say yes. 13 Q Okay. 14 A But I am not sure if she did or not. Cause 15 don't know wh at money she is getting. 16 But you didn't increase your payment to her 17 at that time? Answer: I believe her lease expired in 18 February of 2 008. If you, if you look at her -- I don't 19 know what tha t was -- but Question: Regardless of that -- 20 just, well, t hen do I have to do anything with Mr. Young? I 21 don't need to do -- 22 Q No. Here, read what Mr. Young says. 23 A He is not asking you what the lease says. 24 He is asking you if you remember Halo moving out. My answer 25 was yes, I can remember her moving out. 159 • • 1 Question: So you did that, so how did that 2 play to the calculation of your payments to Sandra King when 3 she was no longer getting rent from Halo? 4 Answer: I had no idea that she still wasn't 5 getting payment from Halo because in one of her letters she 6 stated that Halo's lease was up in February of 2008. So I 7 didn't know whether she was getting payment or not. 8 Question: But you were taking credit for the 9 payment she was getting from Halo starting in January of 10 2009? 11 Mr. Young objected, objection form. 12 Question: In your calculation of what you 13 were paying Sandra King, you were taking credit for the rent 14 that Halo w as paying to Sandra King? 15 Answer: Yes, it was deducted. 16 Question: Right. So when Sandra King 17 stopped get ting that rent in June of 2009, shouldn't your 18 formula for payment of changed? 19 Answer: I don't believe so. 20 Why not? Because she had a contract with 21 Halo until February of 2008 and also she wouldn't allow the 22 property to be leased. 23 Question: After Halo moved out? Yes. 24 How do you know that? She told Marilyn 25 Mullen who worked with me that she wouldn't rent it because 160 • • 1 of how I treated Halo. 2 Q That should be now? 3 A Oh, okay. Now, assuming that that is 4 correct, but had she actually made an effort to re-rent the 5 Halo property, would your attitude be different as far as 6 what you would owe her in payments? 7 Yes, it would. 8 So you are telling me because she would not 9 re-rent the property in June of 2009 that was the reason 10 that you didn't increase your payment to her by $1400.00? 11 Answer: That is correct. (End of reading) 12 Q So from what I read from that, if Mrs. King 13 was making an effort to re-rent that property, then your 14 attitude from those questions was that you should increase 15 your rent by $1400.00? 16 A Where do you see that? I didn't see in there 17 where it said she was making an effort. Marilyn called and 18 said she wouldn't rent -- 19 Q It is up to the Court to determine whether 20 she was making an effort or not. My question to you is 21 assuming she was making an effort, then your attitude is you 22 should have been paying the $1400.00? 23 A Hindsight, no, I really don't. Because, as I 24 said, there would be no motivation for her. 25 Q So she is not getting the rent.? 161 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 Correct. Q And you're deducting the $1400.00 that she is not getting? A That, that property possibly could have been rented. I sent a couple people her way and she didn't want -- I mean the people she turned down. It could have been rented. Q If you had control of the entire property and you weren't getting rent, you would have had to have come up with that extra $1400.00? A Yes, I would have. Yes. That would have been just. Q Instead you decided just not to pay her to motivate her. Is that correct? MR. YOUNG: Objection. Mischaracterizes his testimony. MR. ADLER: I don't think so. I think that is what he just said. THE COURT: Can you answer the question? Gentlemen, this argument cuts both ways. She did not give him the right to rent the property. He couldn't do anything about it. MR. ADLER: That is correct. THE COURT: So this whole business about I really should pay her more when I can't do anything, I don't 162 1 have the property, I don't have the title to it, I can't 2 rent it, she won't rent it, what difference does that make? 3 THE WITNESS: My hands were tied. 4 THE COURT: You are talking about mitigating 5 your damages. Right? 6 MR. ADLER: No. I am trying to say he 7 deducted the $1400.00 because he thought she was getting the 8 rent. And if she wasn't getting the rent, then he should 9 have paid the other $1400.00 a month. 10 THE COURT: I think you have established 11 that. 12 BY MR. ADLER: 13 Q So she stopped getting rent in June of 2009. 14 I guess you d on't know that for a fact. We have testified 15 to that. It doesn't matter. 16 A Okay. 17 Q All right. June of 2009 to February of 2012 18 is 33 months. 19 A Okay. 20 Q So she went for 33 months without you giving 21 her the $1400 .00 a month? 22 A That is correct. 23 Q Right? 24 A Yes. 25 Q Which amounts to $46,200.00 that she is out 163 0 0 1 because you weren't paying her and she wasn't able to 2 re-rent the property? 3 A I don't know that. From what I knew, she 4 didn't want to rent it. 5 Q From what you know from whom? 6 A Yes, from calling. 7 COURT REPORTER: Could you repeat your 8 answer, please? I didn't understand you. 9 THE WITNESS: I just said from my 10 understanding, she didn't want to rent it. That is what I 11 knew because of the phone call that was made. 12 BY MR. ADLER: 13 Q But you did hear her testimony that she got. 14 $1280.00 a month for four months from that other tenant that 15 moved in temporarily, or didn't move in, but paid rent to 16 her. You heard that testimony. Right? 17 A Yes. 18 Q And that she paid around $1100.00 commission 19 for the company that handled that matter? 20 A Yes. =I heard that. 21 Q You heard her testimony too? 22 A Yes. 23 Q November 1, 2008, you're acting partially 24 like you own the building. 25 A That was under advice from counsel, yes, that 164 • • 1 I should -- I mean if I would have entered into another 2 lease it would have voided the proposal. 3 Q That is fine. From 2008 to 2012, did you 4 ever check to see whether the real estate taxes went up so 5 that you shoul d change your payment? 6 A Well, actually, yes, I did think about it. 7 Then I thought about the money that she would owe for 8 holding on to the 368 or 391 square feet that I wasn't able 9 to use. 10 Q Did you think about the sewer bills that 11 increased over that time and how you would have to, to be 12 accurate, add that to your $2747.83 a month? 13 A I thought about it. 14 Q You heard Mrs. King testify about repairs 15 made to your b uilding after November 1, 2008? 16 A Yes, and they were made prior to putting the 17 building on th e market. 18 Q But after November 1, 2008? 19 A Yes. 20 Q So that gutter that is hanging off the front 21 of the buildin g -- 22 A It wasn't the front, it was the back. 23 Q That was full of leaves? That sat there -- 24 A Who said it was full of leaves? 25 Q The gutter is hanging off the back. As I 165 0 0 1 understand, it was hanging there for about three months. 2 You never did anything? 3 A I don't think it was three months. 4 Q You never did anything about it. Did you? 5 A No, I :never did. 6 Q And Mrs. King testified that some block was 7 damaged on the outside of your building? 8 A I can't remember any -- I thought that was 9 like that before I moved in. 10 Q But you didn't do anything to fix it? 11 A I mean, I wish I had a picture of it. I 12 don't think that it needed anything done. It was in the 13 back. 14 Q You didn't do anything to maintain the 15 outside of the big building or the small building after 16 November 1, 2008. Did you? 17 A Yes. 18 Q What? 19 A I cleaned, I cleaned up the, you know, the 20 leaves out of the parking lot. The ground was starting to 21 cover up some of the macadam. I put that back. I put new 22 guards up in the gutters. 23 Q So gutter guards and leaf cleaning? 24 A Yeah, and also reclaiming the blacktop. I 25 mean everything else was normal maintenance. 166 • • 1 Q What exhibit is the amortization? 2 MR. YOUNG: 13. 3 MR. ADLER: The loan amortization, your loan 4 amortization. 5 MR. YOUNG: The amortization schedule starts 6 at the second page of Defendant Exhibit 13. 7 BY MR. ADLER: 8 Q The second page of Defendant Exhibit 13, the 9 loan amortization? 10 A Yes. 11 Q You just pulled this off the internet. 12 Right? 13 A No. My counsel gave it to me. 14 Q Just one second. 15 I have no further questions. Thank you. 16 THE COURT: Redirect? 17 MR. YOUNG: Yes, Your Ioncr. 18 REDIRECT EXAMINATION 19 BY MR. YOUNG: 20 Q Dave, could you turn to tab 9 in the 21 notebook? Do you know what Defendant Exhibit 9 is? 22 A Yes. That is what I put in with one of the 23 payments to Sa ndra King. 24 Q Could you read that for me, please? 25 A It says (Reading) Sandra, if I could lease 16, 0 0 1 the Halo building you would be receiving $4,147.83. 2 Q Wha t did you mean by that exactly? 3 A It, it meant that if we could get somebody it 4 there that she wou ld be getting the full amount that she 5 should be getting. 6 Q Did she ever respond? 7 A No. 8 MR. YOUNG: That is all I have. 9 THE COURT: Recross? 10 MR. ADLER: No further questions. 11 THE COURT: Sir, you can step down. 12 THE WITNESS: Okay. Thank you. 13 THE COURT: Next witness? 14 MR. YOUNG: Your Honor, we don't have any 15 more witnesses. I would like to move for the admission into 16 evidence of our exhibits, which I believe would include 17 Defendant Exhibits 9, 12, 13, 17, 19, 20, and 21. 18 THE COURT: Any objection? 19 MR. ADLER: May I look at those for a second? 20 THE COURT: Yes, please. Take your time. 21 MR. ADLER: No objection. 22 THE COURT: Defendant Exhibits 9, 12, 13, 17, 23 19, 20 and 21 will be admitted to the record. Resting? 24 MR. YOUNG: We are resting, Your Honor. 25 THE COURT: Rebuttal? 168 • 1 MR. ADLER: No rebuttal. 2 THE COURT: Let me just see counsel here for 3 a second. 4 (Discussion off the record at side bar.) 5 THE COURT: Please be seated. We'll enter 6 this Order: 7 AND NOW, this 9th day of February, 2012, 8 after non-jury trial in the above-captioned matter, IT IS 9 HEREBY ORDERED AND DIRECTED that a transcript of these 10 proceedings shall be prepared and filed with the parties. 11 IT IS FURTHER ORDERED AND DIRECTED that 30 days following 12 the filing of the transcript the parties shall submit to the 13 court proposed Findings of Fact, Conclusions of Law and a 14 proposed verdict order, and any briefs they feel important 15 in addressing any legal questions presented in the trial. 16 By the Court, 17 /s/ M. L. Ebert, Jr., J. 18 THE COURT: Anything further, gentlemen? 19 MR. ADLER: No, Your Honor. 20 MR. YOUNG: No, that about covers it, Your 21 Honor. 22 THE COURT: Thank you very much. It was 23 well-presented. Stand in recess. 24 (Whereupon, the proceeding was 25 concluded at 3:20 p.m.) 169 • t 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause, and that this is a correct transcript of same. Ma'rie` T . Farley, Official. Court Reporte The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. sy? la a V)a' -U -t O Date M. L. Ebert, Jr., J. Ninth Judicial District 'C-) --j C= r -Q ?... a? ?c ru ; --i N) ,.. 170 r_._. SANDRA S. KING, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. DAVID E. WINSTON, D/B/A INTERLINK SUPPLY AND PROFESSIONAL SOLUTIONS, INC.: DEFENDANTS NO. 10-4356 CIVIL IN RE: NON~IURY TRIAL ORDER OF COURT AND NOW, this 28th day of August, 2012, after anon-jury trial in the above- captioned matter, the verdict of the Court is as follows: 1. On Sandra S. King's claim of Breach of Contract (Plaintiff's Complaint, Cou I) the Court finds in favor of Sandra A. King and against David E. Winston and awards her the sum of $36,297.65' together with late charges from December 2008,2 totaling $3,629.00. The entire award is $39,926.65 together with interest at the legal rate from the date of this Order. a. Sandra S. King's second requested relief that this Court issue an Order evicting Defendant from the premises is DENIED. The Plaintiff must proceed in an action of ejectment under the "Landlord Tenant Act of 1951" 68 P.S. § 250.101. The Court holds that the Defendant is a hold over tenant obligated to pay rent at $3,500.00 a month until a new lease is presented to hi 1 Between January 2009, and the present, August 2012, the Defendant has paid $2,747.83 a month. He should have been paying $3,500.00 a month. The difference is $33,095.48. In December of 2008, the Defendant paid $297.83. The difference is $3,202.17. The sum of $33,095.48 and $3,202.17 is $36,297.65. This amount does n include late fees. Z The October 2005 Agreement of Lease states a 10% late fee. The Plaintiff calculated the late fee as 10% of the difference of the amount paid and the amount owed. In December of 2008, the late fee is calculated at $320.2( Every month thereafter, the late fee is $75.20. pursuant to Reading Ter. Mech. Assn v. S. Rappaport Assoc., 456 A.2d 552 (Pa. Super. 1983). b. Sandra S. King's third requested relief that the recorded Letter be terminated as an encumbrance to Plaintiff's title to the premises is GRANTED. c. Sandra S. King's fourth requested relief that she be awarded attorney's fees and costs is DENIED. 2. On Sandra S. King's claim of unjust enrichment (Plaintiff's Complaint, Cou II) the Court having found a breach of contract at Count I, the request for rel for Unjust Enrichment is deemed moot. 3. On David E. Winston's claims of (1) Quiet Title (Defendant's Counterclaim, Count I), (2) Breach of Contract (Defendant's Counterclaim, Count II), and (3) Declaratory Judgment (Defendant's Counterclaim, Count III), the Court finds in favor of Sandra A. King and against David E. Winston. By the Court, ~~ M. L. Ebert, Jr., J. ~ William L. Adler, Esquire Attorney for Plaintiff 'Charles T. Young, Jr., Esquire ~., ,,,,, . Attorney for Defendant 3 ~ _~ -v ~.-~, ~.~ ..c ~ °~ ~` c ~~ ~ ~'~'; 2 ~~,r c, ~-:, ~~ -~ °-~ 1 SANDRA S. KING, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. DAVID E. WINSTON, D/B/A INTERLINK SUPPLY AND PROFESSIONAL SOLUTIONS, INC.: DEFENDANTS NO. 10-4356 CIVIL IN RE: NON-JURY TRIAL OPINION and ORDER OF COURT Ebert, J., August 28, 2012 PROCEDURAL HISTORY On July 1, 2010, Plaintiff, Sandra S. King, filed a Complaint alleging breach of contract and unjust enrichment.3 The Plaintiff alleged that the Defendant breached th "Agreement of Lease" entered on October 24, 2005, by continuing to occupy the premises at 4609 Gettysburg Road, Mechanicsburg, Cumberland County, Pennsylvania. The Plaintiff also alleged that the Defendant has been unjustly enrich by occupying the premises beyond the term of the "Agreement of Lease". The Plaintiff is seeking damages in the amount of $17,990.22, plus continuing accrued lost rent and late fees; the eviction of the Defendant; termination of the Opti Letter; and attorney's fees. a Kind v. Winston, 10-4356 Civil, Complaint, filed July 2, 2010 On September 13, 2010, Defendant filed an Answer with New Matter.4 The Defendant counterclaimed with count I, quiet title, count II, breach of contract and a count III, declaratory judgment. The Defendant alleged that he and the Plaintiff entere into a sales agreement for the purchase of said property, and Plaintiff has breached th terms of the sales agreement by failing and refusing to execute a deed and provide titl to the property. The Defendant is seeking title to the property in dispute and requesting the Co to characterize the continuing payments made to the Plaintiff as installment payments on a purchase money mortgage. On February 9, 2012, anon-jury trial was held. A transcript of the trial was prepared, and both parties filed briefs. FINDINGS OF FACT 1. The Plaintiff owns the property at 4609 Gettysburg Road Mechanicsburg, Pa 17055.5 2. There are two buildings on said property.s 3. On October 24, 2005, the Plaintiff and the Defendant entered into a lease agreement for the Defendant to lease 8237 square feet of gross floor space and 391 square feet of overhead storage in the "Main Building" on said property.' ° Kind v. Winston, 10-4356 Civil, Defendant's Answer with New Matter and Counterclaims to the Complaint, filed September 13, 2010 s King v. Winston, 10-4356 Civil, In Re:Non-Jury Trial, February 9, 2012, Ebert, Jr., J (hereinafter "N.T._") N.T. 8 a N.T. 15 2 4. The lease was for 36 months beginning November 1, 2005, at $3,500.00 per month.$ 5. Paragraph 4 of the "Agreement of Lease" indicates that "Lessee had expressed an interest in possibly purchasing the property ... at the end of this lease term."9 6. Paragraph 20 of the "Agreement of Lease" gives the Lessee a right of first refus for the purchase of the property.10 7. Paragraph 7 of the "Agreement of Lease" states that Lessee agrees to give notice of his intentions to renew or not renew the lease or purchase the property 90 days prior to the termination of this lease period. The Lease expired on October 31, 200$.11 8. Paragraph 5 of the "Agreement of Lease" states that the Lessee has permiss to make changes to the building at his expense.12 9. Subsequent to the "Agreement of Lease", the Plaintiff drafted an agreement for an "Offer of Terms for Property Purchase", dated October 31, 2005. The terms upon by the parties were that 1) if the Defendant opted to purchase the property, he would receive a credit of $36,000.00 toward the $600,000.00 purchase price; 2) the Plaintiff agreed to a mortgage rate of 5%; and 3) if the Defendant chose not to pu Kind v. Winston, 10-4356 Civil, In Re: Non-Jury Trial, February 9, 2012, Ebert, Jr., J, Plaintiff's trial exhibits (hereinafter "Plaintiff Exhibit _"), Plaintiff Exhibit #1 $ Plaintiff Exhibit #1 9 Plaintiff Exhibit #1 io Plaintiff Exhibit #1 ii Plaintiff Exhibit #1 iz Plaintiff Exhibit #1 3 the property, he could negotiate a new lease, vacate the premises or negotiate terms clf the sale for a future date.13 10. Pursuant to the "Agreement of Lease", on June 11, 2008, the Defendant wrote letter to the Plaintiff stating his intent to purchase the property located at 4609 and 4609A.14 11. On August 1, 2008, the Plaintiff sent a letter to the Defendant detailing the term of a Sales Agreement.15 The letter reiterated the selling price and the interest rate, as listed in the "Offer of Terms for Property Purchase". The letter detailed additional terry a down payment; monthly payments; the balance of the mortgage; who was financing the mortgage; the settlement cost; payment of taxes; insurance; maintenance; propert inspection; terms if Plaintiff becomes disabled; and a condition that "Buyer and Seller will split the cost of an attorney to complete this arrangement."'s 12. Following the June and August letters, the Defendant never contacted the Plaintiff." 13. On September 30, 2008, the Plaintiff sent the Defendant a letter stating that sh had not received written notification from him regarding the terms she detailed in her August 1St letter.'$ This September 30th letter informed the Defendant that if the Pla did not receive "notification" from him by November 1, 2008, the sale was void. Furthermore, she stated that if he wants to pursue a sales agreement, she needed a is Plaintiff Exhibit #2 is Plaintiff Exhibit #5 is Plaintiff Exhibit #6 ie Plaintiff Exhibit #6 17 N.T. 19, 20 18 Plaintiff Exhibit #8 4 letter from his financial institution approving the funds for the down payment. Additionally, the letter set forth the new rental fee, effective November 1, 2008.19 14. A letter dated October 17, 2008, was drafted by the Defendant's attorney and sent to the Plaintiff. The letter indicated the Defendant's willingness to purchase the property. It sets forth additional details of a 20 year mortgage and a suggested "bal payment". The letter did not mention a down payment.20 15. On October 20, 2008, the Plaintiff wrote back to defense counsel that she wa a 15 year financing agreement and proof that the Defendant can pay the $188,000.00 down payment.21 16. Up until October 20th, the Plaintiff had received no correspondence, written or otherwise, from the Defendant on whether he accepted the condition of a down payment.22 17. Between October 20th and October 31, 2008, the Plaintiff spoke with defense counsel about the down payment. Defense counsel assured the Plaintiff that the Defendant had the money for the down payment.23 In a letter dated October 31, 2008 the Plaintiff reduced the down payment amount to $141,000.00.24 19 N.T. 25-26, Plaintiff Exhibit #8 20 Plaintiff Exhibit #10 Z' Plaintiff Exhibit #11 zz N.T. 28 ia N.T. 29, 30 Z4 N.T. 29, Plaintiff s Exhibit #12 5 _ _ _ ~_ 18. The Plaintiff never received the written assurance she was seeking that the Defendant had actually secured the requested down payment.25 19. Defense counsel and Plaintiff were negotiating a sales agreement, as evidence by counsel's fax dated November 3, 2008, that contained a 9 page "Installment Sales Agreement".2s 20. In a letter dated November 1, 2008, the Plaintiff told defense counsel not to proceed with preparing a sales agreement.27 In a letter dated November 3, 2008, the Plaintiff told defense counsel, "[B]ottom line is this, I will not do a Sales Agreement wi~ ~~28 him. 21. On November 3, 2008, the Plaintiff prepared a new Lease and sent it certified mail to the Defendant.29 The Plaintiff received notification that the Defendant received the Lease, but the Lease was never signed or returned to the Plaintiff.ao 22. It is clear from the Plaintiffs testimony that from the beginning, in October of 2005, she intended to give the Defendant the first opportunity to purchase the property; whether he had the ability or means to purchase the property would become clearer the end of the 3 year lease.31 zs N.T. 30, 32, 33 ze Plaintiff Exhibit #17 Z' Plaintiff Exhibit #14 28 Plaintiff Exhibit #16 ze N.T. 26, Plaintiff Exhibit #16 so N.T. 26, 42 si N.T. 75, 84, 85 6 23. The "Offer of Terms for Property Purchase" that was signed on October 31, 200, guaranteed the purchase price and the 5% interest rate.32 It was not a guarantee that the Defendant could purchase the property.as 24. At the time of the "Agreement of Lease", the Defendant had in his possession a letter dated October 11, 2005, from the Plaintiff. This letter indicated a lease payment of $3,500.00 per month to be locked in for 2 or 3 years. Additionally, it stated that if th Defendant were interested in purchasing the property at the end of the 3-year lease, purchase price would be $564,000.00, with a 5% rate.sa 25. After the lease was signed on October 24, 2005, containing no details about purchase price or interest rate, on October 27, 2005, the Defendant wrote a letter to Plaintiff asking that the terms be included in the lease.ss 26. There is no mention of a 20 year mortgage term either in the October 11, 2005, letter, the October 27, 2005, letter, or the October 31, 2005, "Offer of Terms for Prope Purchase". Contrary to the Defendant's testimony that he believed the mortgage term was part of the "sales agreement", the first documented request fora 20-year mortgag was in defense counsel's letter dated October 17, 2008. Moreover, the Defendant admitted that he never discussed a 20-year mortgage with the Plaintiff.ss sz N.T. 75, 76 ss N.T. 77 sa King v. Winston, 10-4356 Civil, In Re: Non-Jury Trial, February 9, 2012, Ebert, Jr., J, Defendant's trial exhibits (hereinafter "Defendant Exhibit _"), Defendant Exhibit #17 ss Defendant Exhibit #20 se N.T. 147 7 27. The Defendant made improvements or changes to the "Main Building" at 4906, as indicated in the "Agreement of Lease". Furthermore, the Lease stated these improvements would be at the cost of the Lessee.37 28. The Defendant claims that as a result of a parking spot issue, the Plaintiff told him he could no longer buy the property.38 However, on February 19, 2008, the Pla wrote to the Defendant about resolving the parking spot problem. Nowhere in that 2 '/2-page letter did the Plaintiff threaten to prevent the Defendant from purchasing the property.39 Moreover, after a thorough reading of the written correspondence the parties, and of cross examination of the Plaintiff, this Court finds that the Plaintiff is forthcoming with her feelings. If the Plaintiff had told the Defendant that she is no longer willing to sell the property to him, she would have recorded it in a letter. 29. The Defendant never produced verification that a deposit could be made because his financial supporter withdrew.ao 30. Following the expiration of the October 24, 2005, "Agreement of Lease", the Defendant continued to make monthly payments. For the month of November 2008, t e Defendant paid $3,850.00, which was the rent stated in the new lease.41 For the months thereafter, the Defendant paid $2,747.83 a month.42 Knowing the Plaintiff was not going to sell him the property, the Defendant calculated what he believed his 37 Plaintiff Exhibit #1 38 N.T. 117 as Plaintiff Exhibit #4 40 N.T. 149-50 ai N.T. 125 az N.T. 122 8 mortgage payments would be, and submitted those payments instead of the $3,500.OQ per the old lease and the $3,850.00 per the new lease.as ', DISCUSSION I. THE OCTOBER 31 2005 DOCUMENT IS NOT ENFORCEABLE. The Defendant's principal contention is that the written agreement between him and the Plaintiff constituted a specifically enforceable contract for the sale and purcha of the property described. "[S]pecific performance is an equitable remedy for breach contract permitting the court `to compel performance of a contract when there exists in the contract an agreement between the parties as to the nature of the performance."' Lackner v. Grosser, 892 A.2d 21, 31 (Pa. Super. 2006) (quoting Geisinger Clinic v. DiCuccio, 606 A.2d 509, 521 (Pa. Super. 1992)) (emphasis omitted). Giordano v. Claudio, 714 F. Supp. 2d 508, 532 (E.D. Pa. 2010). However, where the performance under a contract is uncertain, the court will not write the contract for the parties. Lackner, supra (citing Turner v. Hostetler, 518 A.2d 833, 836 (Pa. Super. 1986). "As a basis for a decree of specific performance, it is essential that there be a definite present agreement in writing, every requisite element whereof is clearly and fully set forth therein". Gettemy v. Homestead Assn of Westmoreland, 52 A.2d 325, 326-27 (Pa. 1947) (citing Brown v. Hughes, 90 A. 651 (Pa. 1914). "Stated otherwise, the writing must definitely and conclusively evidence a meeting of the minds of the parties on all requisite terms of the agreement[;] nothing can be left to the future actual performance". Id. (citing Agnew v. Southern Avenue Land Co. 53 A. 752 (Pa. as N.T. 126, 127 9 1902) (Kopp v. Tubies 4 Pa. D. & C. 5th 69 (Pa.Cm.PI. 2008)). A meeting of the minds requires the concurrence of both parties to the agreement, or they have failed to execute an enforceable contract. Dept of Transp. v. Pa. Indus. for Blind & Handicapped, 886 A.2d 706 (Pa. Cmwlth. 2005). Further, there must be a meeting of the minds on all terms of the contract. Id. City of Erie v. Fraternal Order of Police, Lodge 7, 977 A.2d 3, 12 (Pa. Cmwlth. 2009). Furthermore, "[a] buyer seeking specific performance of a contract for the sale real property has the burden of both pleading and proving that he was ready, willing a able to perform the contract." Am-Cal Investment Company v. Sharlyn Estates, Inc., 255 Cal. App. 2d 526, 539, 63 Cal. Rptr. 518, 527 (1967) (emphasis added). "A purchaser without funds of his own may show that he was ready and able to pay the purchase price because he had made arrangements to borrow the required funds a lending institution or from a third party, but if he relies upon the negotiation of a loan from a third party, the buyer must prove: (1) That the third party was legally bound by contract to advance the funds ... and (2) that the party offering to advance the (purchase price) has the financial ability so to do." (citations omitted). Id. 255 Cal.App 2d at 539-40. In the present case, this Court finds that while there was an agreed upon purchase price in the "Offer of Terms for Property Purchase", there were too many uncertainties. These uncertainties will not be written into the contract by the Court. Tf~e "Offer of Terms for Property Purchase" failed to state 1) the terms of a down payment; 2) the length of the mortgage; 3) the monthly mortgage payments; 4) the payment of taxes; 5) the payment of insurance; 6) the terms of a default, and other terms upon 10 which the parties were still negotiating years after the "Offer of Terms for Property Purchase" was signed. The evidence supports a finding that the parties did not have a "meeting of the minds" back on October 31, 2005. The record is replete with numerous communications between the parties beginning August 2008 attempting to negotiate terms of a sales contract and never reaching an agreement. There were several written communications between the Plaintiff and defense counsel where the parties were negotiating specific terms of a sales agreement. Specifically, on November 3, 2008, defense counsel submitted for the Plaintiff's review, an "Installment Sales Agreement". However, the Plaintiff testified that throughout the negotiations she refused to accept 20-year mortgage and insisted upon proof that the Defendant had the funds fora d payment. There were no communications regarding the enforcement of the October 3r , 2005, "Offer of Terms for Property Purchase" until the Plaintiff informed counsel that s was no longer interested in a sales agreement. Therefore, this Court finds there was meeting of the minds on October 31, 2005, when the parties signed the "Offer of Te for Property Purchase." Moreover, the Defendant has not proven that he was able to perform the contract. There was testimony that the Defendant had a financial backer, but at some point the finances were no longer available. Since the writing did not definitively and conclusively evidence a meeting of the minds of the parties on all requisite terms of the agreement, and since the defendant did not provide evidence that he was able to perform the contract, the "Offer of Terms for Property Purchase" is not enforceable. 11 __ _, r II. THE PLAINTIFF IS ENTITLED TO DAMAGES FOR ARREARAGES OF RENTAL FEES. The Plaintiff seeks relief in the amount of $17,990.22 to cover the insufficient monthly lease fees. The applicable law is "[w]hen a tenant remains in possession aftE the termination of a lease, the landlord has the choice of treating such a tenant as a trespasser, subject to summary ejectment; as a tenant by suffrance; or as a tenant holding over." Readinq Ter. Mech. Assn v. S. Rappaport Assoc., 456 A.2d 552, 556 (Pa. Super. 1983) (hereinafter Reading Terminal) citing Witmer v. Exxon Corporation, 434 A.2d 1222 (Pa. 1981). For a tenancy to result from a holding over, the landlord must exercise his election, indicating his consent to the tenancy. Usually this consent will be manifest by accepting rent. American Law of Property, § 3.33. The law is clear that when a tenant is in possession under a lease and continue as a hold over tenant, the law implies a new lease on the same terms and subject tot e same covenants and conditions as those contained in the original lease. Readinq Terminal, 456 A.2d at 556 citing Pfingstl v. Chenot, 67 A.2d 649 (Pa. Super. 1949). However, if the hold over tenant continues to remain on the property after receiving notice of a change in the terms of the lease, the holding over is construed as acceptance of the new terms. Id. citing Worrell v. Rosenberry, 74 Pa.Super. 152 (1920). If the lessor gives written notice of intent to change the terms and the lessee does not give notice of intent to vacate, the lessee is subject to the terms and conditio s of the notice. Id. citing Diamond v. Drucker, 110 A.2d 820 (Pa. Super. 1955). "Were it ~ otherwise, lessees could hold lessors hostage by the simple expedient of remaining in possession, thus effectively preventing landlords from modifying any terms of a lease , 12 for an indefinite period of time. Tenants would be legally able to obtain a perpetual lease on the former terms, subject only to the Landlord's right to bring an action in ejectment" Id. In Reading Terminal, 456 A.2d 552 (Pa.Super. 1983) under the terms of their original lease, the Reading Terminal Merchants were responsible for the payment of electricity actually consumed. However, the landlord only ever collected a flat rate; v below the amount actually consumed. Furthermore, the lease was silent as to the lessees' responsibility of real estate taxes. In September 1976, prior to the expiration f the lease, the landlord sent a notice of termination, stating that during lease negotiatio s the tenants would be considered tenants at will. Additionally, the landlord sent a new forty-page lease agreement. The new agreement increased the base rent. It also required payment for individual consumption of electricity as measured by separate ~ meters, and it required each lessee to pay its proportionate share of real estate taxes based on the square footage of the tenancy. The provisions of the new lease were reiterated and explained orally to each lessee. The tenants objected to the new Claus s and refused either to sign the new lease or to pay the increases associated only with the electricity and/or real estate taxes. Id at 557. However, they paid the increase in rental fees. In May 1978, the landlord demanded retroactive lump sum payments of electricity actually consumed and threatened that if it was not paid by December 1978, the landlord would terminate electrical service. Interestingly, the landlord never filed fc eviction of the tenants. 13 The tenants argued that since the landlord accepted payment under the old lease the landlord cannot collect on arrearages where the tenants did not agree to the terms of the new lease. The Court found that the landlord did not acquiesce in the nonpayment of the disputed charges but has acted vigorously to assert his claims. Id. at 557. Furthermore, while the landlord did not seek ejectment of the tenants, the landlord acted promptly and unequivocally to make his demands clear by sending the notification letter along with the new lease and subsequently orally explaining the new lease conditions with each tenant. Id. at 557. The facts of the present case are distinguishable from the facts in Reading Terminal. In the present case, the "Agreement of Lease" expired on October 31, 2008 On September 30, 2008, prior to the expiration of the lease, the Plaintiff sen# the Defendant a letter which included notice of a 10% rental increase In a November 3, 2008, letter addressed to defense counsel, Plaintiff informed counsel that she notified the Defendant of a rental increase.45 Anew 2-year lease was sent to and received by the Defendant on November 3, 2008. The Defendant never signed the new lease whi increased rental fees from $3,500.00 to $3,850.00. However, the Defendant paid the $3,850.00 for the month of November. To the contrary, in Plaintiffs Complaint, ¶'¶ 18 - 22, she avers that the Defenda is a hold over tenant and owed her $3,500.00 from November 1, 2008, through June 1 2010.46 Furthermore, in a June 29, 2009, letter from Plaintiffs counsel to Defendant's counsel, Defendant was made aware that he was default of the October 2005 Lease °`' Plaintiff Exhibit #8 as Plaintiff Exhibit #16 as Plaintiff's Complaint, filed July 1, 2010 14 Agreement47. Most significant is Plaintiff's Exhibit #31, her late fee calculations. In her own calculations, she charted the rent the Defendant owed her from November 2008 through February 2011 as $3,500.00. Further, she calculated the late fees based on '~ the difference of $3,500 and the $2,747.83, the Defendant's actual payments. Moreover, she credited the Defendant $350.00 for the month of November 2008 wher he actually paid the new rental fee of $3,850.00. It appears that the Plaintiff considere the Defendant a hold over tenant and not subject to the new lease. The Defendant was not evicted from the premises, nor did the Plaintiff file for eviction of the Defendant. Instead, the Plaintiff accepted payments in the amount of $2747.83. Although it is clear that the Plaintiff accepted this monthly payment as payments of the rent, she never considered them mortgage payments. The Plaintiff did not act vigorously to assert her claim under the new lease agreement as the Plaintiff did in Reading Terminal, supra. Wherefore, this Court finds that the Defendant was a hold over tenant who continued to owe the Plaintiff $3,500.0( a month. III. PLAINTIFF'S CLAIM FOR ATTORNEY'S FEES Plaintiff has requested relief that she be awarded attorney's fees. "[P]arties a generally not entitled to an award of counsel fees from an adverse party in the absen e of express statutory authorization, a clear agreement between the parties, or t e application of a clear exception." James Corg. v. North Allegheny School Dist., 9 8 A.2d 474, 490 (Pa. Cmwlth. 2007). Defendant did not file his counterclaims in the e " In PlaintifYs Exhibit 25, the caption is titled "Re: Lease Agreement dated October 24, 2005". The letter advises defense counsel that the Defendant "is currently in default of this Lease Agreement". The October 2005, Lease Agreement had expired on October 31, 2008. 15 proceedings for any improper purpose. This suit was litigated by both parties in go©d faith to resolve a legal problem between them which was somewhat complex arhd subject to differing good faith interpretations. No contractual agreement exist~d between the parties regarding attorney's fees. There is no express statutoiry authorization, nor any exception entitling Plaintiff to the award of attorney's fee Plaintiff's requested relief seeking an award of attorney's fees is denied. Crawford, 982 A.2d 541 (Pa. Super. 2009) appeal denied 12 A.3d 752 (Pa. 2010). Accordingly, the following order will be entered: AND NOW, this 27th day of August, 2012, after a non jury trial in the above- captioned matter, the verdict of the Court is as follows: 1. On Sandra S. King's claim of Breach of Contract (Plaintiff's Complaint, I) the Court finds in favor of Sandra A. King and against David E. Winston and awards her the sum of $36,297.6548 together with late charges from December 2008,49 totaling $3,629.00. The entire award is $39,926.65 together with interest at the legal rate from the date of this Order. a. Sandra S. King's second requested relief that this Court issue an Order evicting Defendant from the premises is DENIED. The Plaintiff must proceed in an action of ejectment under the "Landlord Tenant Act of 1951" 68 P.S. § 250.101. The Court holds that the Defendant is a hold over tenant obligated to pay rent at $3,500.00 a month until a new lease is presented to hi 48 Between January 2009, and the present, August 2012, the Defendant has paid $2,747.83 a month. He should have been paying $3,500.00 a month. The difference is $33,095.48. In December of 2008, the Defendant paid $297.83. The difference is $3,202.17. The sum of $33,095.48 and $3,202.17 is $36,297.65. This amount does nc include late fees. °9 The October 2005 Agreement of Lease states a 10% late fee. The Plaintiff calculated the late fee as 10% of the difference of the amount paid and the amount owed. In December of 2008, the late fee is calculated at $320.20 Every month thereafter, the late fee is $75.20. 16 pursuant to Reading Ter. Mech. Assn v. S. Rappaport Assoc., 456 A.2d 552 (Pa. Super. 1983). b. Sandra S. King's third requested relief that the recorded Option Letter be terminated as an encumbrance to Plaintiff's title to the premises is GRANTED. c. Sandra S. King's fourth requested relief that she be awarded attorney's fees and costs is DENIED. 2. On Sandra S. King's claim of unjust enrichment (Plaintiff's Complaint, Cou II) the Court having found a breach of contract at Count I, the request for relief for Unjust Enrichment is deemed moot. 3. On David E. Winston's claims of (1) Quiet Title (Defendant's Counterclaim, Count I), (2) Breach of Contract (Defendant's Counterclaim, Count II), and (3) Declaratory Judgment (Defendant's Counterclaim, Count III), the Court finds in ~ favor of Sandra A. King and against David E. Winston. By the Court, ~~ M. L. Ebert, Jr., J. ~ William L. Adler, Esquire Attorney for Plaintiff ~- ~ Charles T. Young, Jr., Esquire c Attorney for Defendant ~ ~' ~ ~ ? ~~ , ~.~' a ~G A~ cr 17 -~ "'~ ~: