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HomeMy WebLinkAbout04-3055IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANKLYN F. FLEMING and MELISSA J. FLEMING, Plaintiffs NO. a?/y a') S 5 V LACKRO AND PLANK, INC., and BARRY J. LACKRO, Defendants CIVIL ACTION - LAW PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a Writ of Summons in the above-captioned matter and against the following Defendants: Lackro & Plank, Inc. 258 Meadowlake Drive Downingtown, PA 17335 AND Barry J. Lackro, President 258 Meadowlake Drive Downingtown, PA 17335 WEIGLE & ASSOCIATES, P.C. Dated: & ( -30 ! l L/ By: Jerry . Weigl Esquire Attorney for Plaintiffs Attorney I.D. 01624 126 East King Street Shippensburg, PA 17257 Telephone (717) 532-7388 WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 ?. v?; ?? h ? ?? ?. ?. c' s ?'- ?? ?, k :ommonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS FR:INKLXN F. P _ f1 y4ING AND MELISSA S. FLl I (1.N u Phcn' iff Vs. LACKROAND P': ,NK,INC. 258 ME,?DOWL ,:E DRIVE DOR'NIiNGTOW':,'. PA 17335 AND BA 11 W' I. LA.CI: I: 0 25? J\?'L.?i:.. DRIVE DG1\'NINGTOWIX, PA 17335 Defendant Court of Common Pleas No. 04-3055 In CivilAction-Law To LAC ` ;C:O AT r ,I LANK INC AND BARRY J. LACKRO :.c iotified that FRANKLYN F. FLEMING AND MELISSA J. Fl.; _ Chas / have commenced an action in Civil Action-Law against yo n ? c a. i i d to defend or a default judgment maybe entered against you. (S AL) CURTIS R. LONG Prothono Depu f A. _ N,_,, : Jerry A. Wci, e, Esq. Adufcss: 126 East Kiub Street Shippenshu rg, PA 17257 Attornev .`or: Plain St.,- n- 7 11624 iRUE COPY FROM KV00RD to T li%filiy wnereat, i here unto sel my hfn?; anaf t 074of Bald Court g _Cant*. Pa. rrRC ? ut _ L /j , z SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-03055 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FLEMING FRANKLYN F ET AL VS LACKRO AND PLANK INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: LACKRO & PLANK INC but was unable to locate Them deputized the sheriff of CHESTER in his bailiwick. He therefore County, Pennsylvania, to serve the within WRIT OF SUMMONS On July 22nd , 2004 , this office was in receipt of the attached return from CHESTER Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Chester County 39.50 .00 76.50 07/22/2004 WEIGLE & ASSOC So answers- R.` Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this I IL day of dot 1 A.D. , 01 `- Prothonotary X?-'y SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-03055 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FLEMING FRANKLYN F ET AL VS LACKRO AND PLANK INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: LACKRO BARRY J but was unable to locate Him deputized the sheriff of CHESTER serve the within WRIT OF SUMMONS in his bailiwick. He therefore County, Pennsylvania, to On July 22nd , 2004 , this office was in receipt of the attached return from CHESTER Sheriff's Costs: Docketing Out of County Surcharge 6.00 .00 10.00 .00 .00 16.00 07/22/2004 WEIGLE & ASSOC Sworn and subscribed to before me this a 7 w day of 9-17 j &D`/ A.D. Prothonotary So answers: R: Thomas Kline Sheriff of Cumberland County in The Court of Common Pleas of Cumberland County, Pennsylvania Franklyn F. Fleming et aAECEIVE'Ll vs. StiERIFF'S OFFICE Lackro and Plank InCJIESTER cOUkTY. PA. SERVE: Lackro and Plank Inc 04-3055 civil 2004 JUL 12 AM ?° 1 No. Now, July 7, 2004 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Chester County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. f ;. Sheriff of Cumberland County, PA Please make any refund payable to Thank you. e Affidavit of Service Now, ?N (,, /,Iy , 20A1 L, at o'clock ill M. served the within ?ocu ?nsLJ upon 13 Qrry j", L R..O at u?? S P A?l¢Yf aadvw 1N 1--t. 0A-- by handing to //311. /,rxcl /W a (re,? E 4-,? L111X)x)ir74rumt lea copy of the original and made known to A, ko-r-l o the contents thereof. So answers, Sheriff of County, PA COSTS SERVICE $ MILEAGE AFFIDAVIT In The Court of Common Pleas of Cumberland County, Pennsylvania Franklyn, r l?t??l TY. PA, Mal COUN k k Inc SERVE' Barry QdU4*W AM W.' I i No 04-3055 civil Now, July 7, 2004 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Chester County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Please make any refund payable to t?earr 1'Fi,JT: , A, If Thank you. Affidavit of Service Now, (emu k 20S!V-, at /1: c)-, o'clock A M. served the within (?Joc.ur,,. ,?s upon ?QCt-? ?c<`Ic Qo at $!P P)e,QAoul AA)'-e- 1/R • Uown?tns?o uxl / N by handing to 112 P . , /I ae- /(- ao a and made known to Sworn and me this/? copy of the original ?ac lcoe So answers, 0111ru-,"'ZI the contents thereof. Slferiff of County, PA COSTS SERVICE $ MILEAGE AFFIDAVIT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANKLYN F. FLEMING and MELISSA J. FLEMING, Plaintiffs NO. 04-3055 Civil v LACKRO AND PLANK, INC., and BARRY J. LACKRO, Defendants CIVIL ACTION - LAW NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. 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. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 717-249-3166 OR 1-800-990-9108 WEIGLE & ASSOCIATES, P. r -- JJhy A. Wei- Esquire Attorney for Plaintiff Attorney ID #71577 126 East King Street Shippensburg, PA 17257 (717)532-7388 WEIGLE & ASSOCIATES, P.C. -- AFTORNEVS AT LAW - 126 EAST KIN3 STREET -- SHIPPENSBURG, PA 17257-1397 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANKLYN F. FLEMING and MELISSA J. FLEMING, Plaintiffs NO. 04-3055 Civil v LACKRO AND PLANK, INC., and BARRY J. LACKRO, Defendants CIVIL ACTION - LAW COMPLAINT AND NOW come the Plaintiffs, Franklyn F. Fleming and Melissa J. Fleming, by and through their attorneys, Weigle & Associates, P.C., and in support of their claim, state the following: 1. The Plaintiffs are Franklyn F. Fleming and Melissa J. Fleming, husband and wife, presently residing at HC 61, Box 342, Shade Gap, Huntington County, Pennsylvania 17255. 2. The Defendants are Lackro and Plank, Inc., a corporation, and Barry J. Lackro, President and CEO of Lackro and Plank, Inc., whose present address is 258 Meadowlake Drive, Downingtown, Pennsylvania 19355. 3. Plaintiffs are the owners of certain real property in Tell Township, Huntington County, Pennsylvania (hereinafter called the "Premises"), more particularly bounded and described as tax parcel map reference 447-0607, with Deed of Conveyance being recorded in Huntington County Deeds Book 267 at Page 485, and containing some three hundred and fifteen (315) acres, more or less. 4. On or about July 29, 1993, Plaintiffs and Defendants entered into a written water rights Lease Agreement wherein Plaintiff agreed to grant to the Defendants all of the water in and under the leased Premises, together with the exclusive right to drill for, produce, and commercially market water, as well as the exclusive right to enter upon. the leased premises at all reasonable times for the purpose of drilling and operating for water; laying pipelines; installing storage tanks, machinery, power lines, equipment, fences, roads and structures; and to transport water to and from operations on the leased Premises by pipelines or otherwise. A copy of said Lease Agreement is attached hereto, incorporated herein, and marked Plaintiff's Exhibit "A." 5. On or about August 18, 1995, a Memorandum of Lease Agreement was executed and recorded in Huntington County, Pennsylvania. A copy of the Memorandum of Lease Agreement is attached hereto, incorporated herein, and marked "Exhibit B." WEIGLE 6 ASSOCIATES. PC. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 6. Under the provisions of the above-referenced Lease Agreement, Defendants agreed to pay various rents, royalties and real estate property taxes during the term of said Lease Agreement to said Plaintiffs. 7. To date, the Defendants have made payments on this account in the amount of Thirty-four Thousand Seven Hundred Two Dollars and Sixty-four Cents ($34,702.64) leaving a balance presently due and payable of One Hundred Eighty Thousand Six Hundred Eighteen Dollars ($180,618.00). 8. To date, Defendants have refused to pay to Plaintiffs said remaining balance of One Hundred Eighty Thousand Six Hundred Eighteen Dollars ($180,618.00) although Plaintiffs have repeatedly made demands for payment of the same. WHEREFORE, Plaintiffs demand that the above referenced Lease Agreement be declared null and void due to breach by the Defendants and that judgment be entered against the Defendants in favor of the Plaintiffs in the amount of One Hundred Eighty Thousand Six Hundred Eighteen Dollars ($180,618.00), plus all filing fees, costs, attorney fees and interest at the legal rate plus whatever additional relief is deemed appropriate by this honorable court. WEIGLE & ASSOCIATES, P.C. e A. Weigle, Esquire Attorney for Plaintiff Attorney ID #01624 126 East King Street Shippensburg, PA 17257 (717)532-7388 WEIGLE & ASSOCIATES. P.C. - ATTORNEYS AT LAW - 126 EAST KING ST`2EET - SHIPPENSBURG. PA 17257-1397 VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unworn falsification to authorities. Dated: %1 Z 7J6 `z Dated: ! i I -)Ic 4- Franklyn F. Fleming -bakAA-? a. Melissa J. Fleming - a WEIGLE 6 ASSOCIATES. PC. - ATTORNEYS AT LAW - 126 EASE KING STREET - SHIPPENSBURG. PA 17257-1397 LEASE AGREEMENT THIS LEASE AGREEMENT made as of the q-#-day of FLEMING and MELISSA J. FLEMING, of HC 61, Box 342, Pennsylvania ("Lessors") and LACKRO AND PLANK, INC., principal offices located at Box 209, R. D. #2 Pennsylvania, 19343 ("Lessee"). July, 1993, between FRANKLYN F. Shade Gap, Huntingdon County, a Pennsylvania corporation with , Glenmoore, Chester County, 1. LEASED PREMISES. The Leased Premises include: All that certain tract of land situate in Tell Township, Huntingdon County, Pennsylvania, being identified as 47-0607 (tax map or other indentifier) and containing three hundred fifteen (315) acres, more or less, and more particularly described in Exhibit "A", attached to this Lease and incorporated herein by reference, The Leased Premises shall be restricted to the aforementioned property presently owned by the Lessors, and shall not include or encumber or in any way restrict other lands now or in the future owned by the Lessors. 2. GRANT, Subject to the restrictions hereinafter set forth, Lessors, in consideration of the sum of ONE ($1.00) DOLLAR, receipt of which is acknowledged, and the covenants and agreements contained in this Lease Agreement, do hereby grant to Lessee all of the water in and under the Leased Premises described herein, together with the exclusive right to drill for, produce, and commercially market water, as well as the exclusive right to enter upon the Leased Premises at all reasonable times (as hereinafter specified) for the purpose of drilling and operating for water; laying pipelines; installing storage tanks, machinery, power lines, equipment, fences, roads and structures; and to transport water to and from operations on the Leased Premises by pipelines or otherwise. In addition to any other rights granted in this lease Agreement, and subject to the restrictions hereinafter set forth, Lessee shall have the following rights in and to the Leased Premises without charge by Lessors, :their successors, or assigns: reasonable ingress and egress in, on, and over the Leased Premises, which right shall extend to such portions of the entire Leased Premises as are reasonably necessary based upon the well locations set forth on Exhibit "B", and at any time to remove any and all machinery and fixtures placed on the Leased Premises by Lessee, including the right to draw and remove casing (except for any such casings and pipelines serving any then existing residences). 3. LIMITATIONS UPON GRANT. Notwithstanding the generality of the foregoing grant, Lessee's rights thereunder shall be under and subject to the following restrictions and limitations: (a) Lessee shall be limited to the construction of a single loading station to be located in the northeast portion of the Leased Premises on a site not to exceed five (5) contiguous acres to be specifically described and agreed upon by the parties at a later date. The construction site may, in the Lessee's discretion, be fenced in, and the Lessee may restrict access thereto, by members of the public; provided, however, the said access restriction shall not apply to the Lessors. (b) Lessee shall do nothing which could reasonably be expected to disturb the Lessors' quiet enjoyment of the Leased Premises. The ;3arties acknowledge that the EXhib(4 ? MARK, WEIGLE ANN PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSRURG, PA. 17257 Leased Premises are used as a personal residence by the Lessors. In connection therewith, no trucks shall enter upon the premises, and no construction or similar activity shall take place on the Leased Premises between the hours of 11:00 p.m, and 6:00 a.m., prevailing time. Similarly, Lessee shall use its best efforts to keep the noise from its water extraction activities to a minimum level. Lessee may request Lessors to grant exceptions to the requirements of this Paragraph (b). (c) No water well shall be drilled within one hundred fifty (150) feet of any house, barn, or outbuilding existing on the Leased Premises. (d) Water wells shall be developed in accordance with the plan of seventeen (17) proposed well sites as set forth on Exhibit "13" attached hereto. The parties agree that well sites numbers 12 and 13 shall not be developed except upon the future written agreement of the parties hereto. (e) The water development which is conducted outside of the aforementioned five (5) acre construction tract shall be done via underground pipelines to be constructed and maintained at the Lessee's expense. Said pipelines shall not interfere with Lessors' use and enjoyment of the Leased Premises and shall not be located or laid on the Leased Premises without Lessors' prior written consent, which consent shall not be unreasonably withheld. The Lessee shall restore the ground surface to its pre-construction condition at the Lessee's sole expense. 4. DEVELOPMENT OF LEASED PREMISES AS AN ENTIRETY. (a) Lessors agree to restrict the development of the Leased Premises to no more than five (5) additional residential dwelling houses ("additional permitted residences") to be constructed in such a manner so aE not to affect the quantity nor quality of the water on or under the Leased Premises. (b) If the Leased Premises are, or hereafter become, owned as separate tracts, the Leased Premises nevertheless shall be developed and operated as one property, and all royalties, rents, and payments provided for in this Lease Agreement shall be treated as an entirety and tendered or paid to, and divided among, the separate owners in the same proportion as the interest of each bears to the entire Leased Premises, or as said owners may otherwise agree among themselves. 5. TERM. Subject to the other provisions, this Lease Agreement shall remain in force for a term of ninety-nine (99) years from its date (primary term), and so long as water is available to be produced' in commercial quantities from the Leased Premises, and which is commerccally saleable as pure, and not chemically treated, water. Should the Lessee, in its sole discretion, determine at any time that for any reason, water production from the Leased Premises is not commercially feasible, Lessee may terminate this Lease upon at least one hundred twenty (120) days advance written notice to Lessor and the rights and duties of the parties hereto shall cease at the termination of such notice period. 6. RENT/ROYALTIES. Lessee shall pay Lessors a royalty fee for water removed from the Leased Premises at a minimum guaranteed rate of ONE CENT ($.01) per gallon, commencing on the date water removal activities are begun. In addition, Lessee shall guarantee a minimum monthly rental of ONE THOUSAND THREE HUNDRED ($1,300.00) DOLLARS, commencing on or before September 10, 1993, for the period August 1 through MARK, WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSel1RG, PA.. 17257 August 10, 1993. Royalty fee payments shall be duce and payable monthly within ten (10) days after each calendar month in accordance with the following rate schedule: YEARS RATE 1-10 1.00 cents per gallon 11-20 1.25 cents per gallon 21-30 1.50 cents per gallon 31-40 1.75 cents per gallon 41-50 2.00 cents per gallon 51-60 2.25 cents per gallon 61-70 2.75 cents per gallon 71-80 3.00 cents per gallon 81-90 3.25 cents per gallon 91-99 3.50 cents per gallon Notwithstanding the foregoing, the minimum royalty fee of ONE CENT ($.O1) per gallon shall be adjusted every ten (10) years by multiplying the same by a fraction, the numerator of which is the Consumer Price Index for All Urban Consumers of the United States for all items (1982-84 - 100) for the last month of the preceding ten year period, and the denominator of which is the same index for the month of August, 1993. The royalty fee payable under this Lease shall be the greater of the said Consumer Price Index adjusted minimum rate, or the rate set forth in the foregoing rate schedule. If and to the extent that the foregoing Consumer Price Index is no longer computed or reported by the U. S. Department of Labor, Bureau of Labor Statistics (P.O. Box 13309, Philadelphia, PA, 19101), then a substitute index shall be chosen by the parties as they shall mutually agree, 7. ADDITIONAL RENT. Lessors shall cease leasing; any portion of the Leased Premises for .farming purposes within three (3) years after execution of this Lease Agreement; provided, however, this shall notwprohibit the Lessors from gardening or similar activities on the Leased Premises for their personal use. Lessors shall not garden or perform similar activities within one hundred (100) feet of any well site in active use. Lessee agrees to seed approximately fifty-five (55) acres of farmed land with grass in such area and at such time as Lessor shall designate, and thereafter to mow the same twice per year (once in the spring and once in the fall) to a height and in a manner acceptable to the Lessors. In consideration for Lessors' not leasing its farmland portion of the Leased Premises, Lessee shall pay additional rent ("farm rent") to the lessors in the amount of THIRTY-FIVE ($35.00) DOLLARS per year per acre for such farmland, beginning upon cessation of the rental of the farmland by the farmer currently renting the same. It is anticipated that the total of such additional annual rent shall be ONE THOUSAND NINE HUNDRED TWENTY-FIVE ($1,925.00) DOLLARS (i.e. $35.00 per acre times 55 acres). Payment shall be due and payable on or before March 1, of each year in advance. Beginning ten (10) years after the execution of this Lease Agreement, and every tenth year thereafter, the parties shall negotiate in good faith the annual farm rent based upon the average per acre farm rental rate in the geographic area of the Leased Premises. MARK, WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA. 17257 If Lessors shall fail to pay any taxes due and payable by Lessors, Lessee may pay said taxes and deduct the payment therefor from its monthly rental fee. 11. WATER SUPPLIED TO RESIDENCES. Lessee shall do nothing which shall or may adversely affect the quality or quantity of the Lessors' current residential water supply source which is believed to be a spring located on the south side of the existing dwelling house. In the event Lessors so elect, Lessee shall provide Lessors with such quantity of water as may be desired for domestic residential purposes at the existing dwelling house and up to five (5) additional residential dwelling houses which may be constructed on the Leased Premises at the Lessee's sole cost and expense so as to facilitate construction to the existing water connection at the Lessors' residence, and upon the Lessors' request, to connections at the proposed five (5) additional residential dwelling houses upon the same terms and conditions. No royalty fees shall be payable on any such gallonage so supplied for these residential purposes. Electrical pumps, electric wiring and electricity usage for the pumping of water to such residences shall not be the responsibility of Lessee. In the event Lessors elect to have Lessee provide water to the aforesaid five (5) additional residential dwelling houses, use of ground water source shall cease with respect to each such residential dwelling house which elects to use water supplied by Lessee. With respect to the existing residential dwelling house the right to have Lessee provide water shall be in addition to, and not in lieu of, the use of the existing spring water source. Nothing in this Agreement shall prohibit Lessor or Lessor's children or their issue, at their own expense, from drilling up to five (5) additional private wells to service the five (5) aforesaid additional residential dwelling houses for domestic, residential purposes, so long as said wells do not substantially affect the quality of the water or quantity to be removed by Lessee. 12. TITLE, (Special Warranty of Title) Lessors warrant specially their title to the Leased Premises; that the same shall be free and clear of all liens and encumbrances; and the Lessors have the full and complete right to lease the Leased Premises as of the time this Lease Agreement is executed. In the event Lessors do not have good and marketable title to the Leased Premises, Lessors shall be given an opportunity to cure any defects in title by action to quiet title or by any other means as Lessors deem appropriate. If, at the termination of any action to quiet title or after a reasonable time to cure any defects by their means, whichever is later, Lessors shall not have good and marketable title, then Lessee may elect (1) to attempt to quiet title or discharge any encumbrance, `_ax, mortgage, lien, or other claim, or (2) to proceed with whatever title Lessors have, or (3) to terminate this Lease Agreement. Lessors make no representations, warranties, or guarantees whatsoever concerning the quality or quantity of water which may be removed from the Leased Premises. 13. PROPERTY AND PERSONAL INJURY LIABILITY INSURANCE. At all times during the term of this Lease, Lessee shall maintain, at its sole cost, comprehensive broad-form general public liability insurance against any claims and liability for personal injury, death and property damage arising from Lessee's use, occupancy, disuse or condition caused by Lessee to the Leased Premises and improvements, and adjoining areas. The insurance shall be carried by insurance companies authorised to transact business in Pennsylvania. In addition, the following conditions shall be met: (a) The insurance provided pursuant to this paragraph shall be in an amount no less than TWO HUNDRED THOUSAND ($200,000.00) DOLLARS for property damage, and in an amount no less than TWO HUNDRED THOUSAND ($200,000.00) DOLLARS per individual, and FIVE HUNDRED THOUSAND ($500,000.00) DOLLARS per occurrence for personal injury. MARK, WFIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSRURG, PA. 17257 (b) The insurance shall be maintained for the mutual benefit of Lessors and Lessee, any succeeding owners of the fee title in the Leased Premises, and any successors and assigns of this Lease. The insurance policy or policies shall name both Lessors and Lessee as insureds. 14. INDEMNIFICATION OF LESSORS. Lessors shall not be liable for any loss, damage, illness or injury of any kind or character to any person or property arising from Lessee's use of the Leased Premises or improvements, or caused by any defect in any building, structure, equipment, facility or other improvement of Lessee on the Leased premises, or caused by or arising from any act or omission of Lessee, or any of its agents, employees, licensees or invitees, or by or from any accident, fire or other casualty on the land, occasioned by the failure of Lessee to maintain the premises in safe condition; or arising from Lessee's removal of water from the Leased Premises for commercial sale including the eventual public consumption of the same. 15. INDEMNIFICATION OF LESSEE. Lessee shall not be liable for any loss, damage or injury of any kind or character to any person or property arising from Lessors' use of the Leased Premises or improvements, or caused by any defect in any building, structure, equipment, facility, or other improvement of Lessors on the Leased Premises, or caused by or arising from any act or omission of Lessors, or any of their agents, employees, licensees, or invitees, or by or from any accident, fire or other casualty on the land, or occasioned by the failure of Lessors to maintain the premises in safe condition. Lessors waive all claims and demands on their behalf against Lessee for any loss, damage or injury, and agree to indemnify and hold Lessee entirely free and harmless from all liability for any loss, damage, costs, or injury of other persons, and from all costs and expenses arising from any claims or demands of other persons concerning any loss, damage, or injury caused other than by the negligent or intentional act or omission of Lessee. 16. ASSIGNMENT. The rights of either party may be assigned, in whole or in part. No change in, or division of, ownership of the Leased :?remises, rents, or royalties, or in the status of any party, however accomplished, shall enlarge the obligations or diminish the rights of the Lessee under this Lease Agreement. No change in ownership or status of Lessors, their successors, or assigns, shall be binding upon Lessee until days after Lessee shall have received, at its principal place of business, a certified copy of a record instrument (or instruments) evidencing the change, In the event of the death of any party entitled to receive payments under this Lease Agreement, Lessee may pay or tender the same to the credit of that party or that party's estate until Lessee receives proper evidence of the appointment and qualification of a personal representative for the estate, or evidence satisfactory to Lessee (a) of the identity of the heirs or devisees of that party and (h) that all debts of the estate and taxes due by reason of that party's death have been paid or satisfied. 17. GOVERNMENTAL LIMITATIONS. The parties acknowledge that the Lessee's right to withdraw water from the Leased Premises shall be under and subject to the limitations on which may be set from time to time by the Susquehanna River Basin Authority and/or any other appropriate governmental agency or entity. 18. APPLICABLE LAW. It is mutually understood and agreed that this Lease Agreement shall be interpreted in accordance with the internal laws of the Commonwealth of Pennsylvania and that no presumption shall be deemed to exist in MARK, WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSSURG, PA. 17257 favor of or against either party as a result of its preparation or negotiation; and no inference or promise shall be implied as to either party, the full contractual obligations and promises of each party being fully and expressly set forth in this Lease Agreement. All headings of the paragraphs of this Lease Agreement have been inserted for convenience of reference only, are not to be considered a part of this Lease Agreement and shall in no way affect the in"erpretation of any provision or paragraph of this Lease Agreement. 19. LEGAL CONSTRUCTION. In the event any one or more of the provisions contained in this Lease shall for any reason be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of the Lease, and this Lease shall be construed as if the invalid, illegal, or unenforceable provision had never been included. 20. WASTE. The Lessors shall not cause nor permit anyone else to cause anything to be done to the Leased Premises which may affect either the quality or quantity of the subsurface water, including the amount removable under applicable governmental regulation, including, but not limited to, farming, fertilizing, mining or drilling of wells of any kind except for existing water wells used for existing residential purposes and wells used to supply water for residential purposes to the Additional Permitted Residences. Lessors shall also join and support Lessee in any attempts of Lessee's to prevent conditions or proposed conditions that occur or may occur off the Leased Premises which negatively affect the quality or quantity of subsurface water on the Lease Premises. The parties to this Lease expressly understand that the subsurface water is to be used for drinking purposes which is to be marketed as pure and not chemically treated and that it must remain in as pure a state as possible. Lessee's remedy to any default of Lessors as to violation of this secticn shall be, among all remedies available at law or equity, to obtain either an injunction or specific performance to prevent Lessors or their agents from causing anything to be done that may negatively affect either the quality or quantity of the subsurface water. 21. COVENANT NOT TO LEASE FOR WATER. Lessors covenant, for themselves, their successors, and assigns, not to grant a lease or other right to recover water from the Leased Premises to any other party so long as this Lease Agreement is in force except for wells used to supply water 'for residential purposes to the Additional Permitted Residences. This Lease Agreement contains the entire agreement, contract, and grant of the parties. No verbal warranties, representations, agreements or promises have been made by Lessee or relied upon by Lessors which supplement, modify or alter this Lease Agreement, or which served as an inducement to Lessors to enter into this Lease Agreement. This Lease Agreement may be executed in any number of counterparts and shall be binding upon the owner of any interest in the Leased Premises, whether or not all other owners of interests in the Leased Premises sign it, or a counterpart. All terms, conditions, covenants, agreements, and limitation between the parties to this Lease Agreement shall extend to and be binding upon their heirs, personal representatives, successors, and assigns, and shall be deemed to be terms, conditions, covenants, agreements, and limitations which will run with the estates, in whole or in part, of either party. MARK, WEIGI_E AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHMPENSeUR6. PA. 17257 22. SALE OF LAND - RIGHT REFUSED OF FIRST REFUSAL. If at any time during the term of this Lease Agreement, Lessors shall receive a bona fide offer from any person to purchase the Leased Premises or any portion thereof, Lessors shall send Lessee a copy of the proposed contract (except for the name of the buyer) and notify Lessee of the intention of Lessors to accept the same. Lessee shall have the right within thirty (30) days to accept the terms of said contract in writing and within sixty (60) days thereafter (for a total time of 90 days) to purchase the demised premises in its own name or in the name of a nominee, for the gross purchase price and on the terms specified in said proposed contract. If Lessee shall not so elect within the said period, Lessors may then sell the demised premises to said buyer, provided the said sale is on the said terms and conditions and for t:ze price set forth in the said proposed contract sent to the Lessee, This right of first refusal shall not apply to transfers between the Lessors or corporations controlled by it, nor shall it apply to testamentary dispositions pursuant to the Lessors' (or the survivor of them) Last Will and Testament or the intestacy laws; but this right of first refusal shall remain in effect after any such transfer and shall be binding upon any such transferee, legatee or heir. In the event Lessee fails to exercise the aforesaid right of first refusal in connection with a proposed sale, then such rights shall be extinguished upon the consummation of said sale; however, if such sale is not consummated, the right of first refusal shall remain in effect. 23. MEMORANDUM OF LEASE. Lessors and Lessee covenant and agree to execute and acknowledge a Memorandum of Lease Agreement suitable for recording, which Memorandum shall describe the restriction on use and other material covenants made by Lessors hereunder. In the event that this Lease Agreement and its terms shall be terminated for any reason, Lessee covenants and agrees to execute all releases and assurances in recordable form as may be reasonably requested by Lessors. The covenants of Lessors made in this Lease Agreement shall be considered to run with the land. This Lease Agreement shall supercede a certain Lease Agreement dated February 10, 1992, by and between Franklyn F. Fleming and Melissa J. Fleming, on the one part, and M. Forest Berrier, Jr., and Barry J. Lackro, trading as Shade Mountain Water Company, on the other part. 24. ESTOPPEL CERTIFICATES. Lessors shall, at any time, and from time to time within thirty (30) days after request by Lessee, execute and deliver to Lessee a statement, in form reasonably required by Lessee, (i) certifying that this Lease is unmodified and in full force and effect (or if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect) and the date to which the rent and other charges due hereunder are paid in advance, if any (ii) Acknowledging that there are not, to Lessors' knowledge, any uncured defaults on the part of Lessee hereunder, or specifying such defaults if any are claimed; and (iii) any other certification reasonably required by Lessee. Any such statement may be relied upon by the recipient thereof. Similarly, Lessee agrees that any time and from time to time, with thirty (30) days after Lessors' written request, to execute, acknowledge and deliver to Lessors a written instrument in recordable form certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that it is in full force MARK. WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - 5HIPPENSIBURG. PA. 17257 and effect as modified and stating the modifications), and the dates to which rent and other charges have been paid in advance, if any, and stating whether or not to the best knowledge of the signor of such certificate the Lessors are in default in the performance of any covenant, agreement, or condition contained in this Lease Agreement, and, if so, specifying each such default of which the signor may have knowledge, it being intended that any such statement delivered pursuant to this section may be relied upon by any recipient thereof. 25. SUBORDINATION TO MORTGAGE, The parties hereto agree that this Lease Agreement is intended to be and shall be subordinate to a certain mortgage obligation from Lessors to Community State Bank of Orbisonia, in the approximate amount of Seventy Thousand ($70,000.00) Dollars, to be secured by a mortgage on the leased premises. Lessee agrees to execute any and all documents which may be necessary to subordinate this Lease Agreement to said mortgage. This Agreement shall not be entered I-or recording until after the recording of the mortgage from Lessors to Community State Bank of Orbisonia, IN WITNESS WHEREOF, Lessors and Lessee have executed and signed this Lease Agreement or have caused this Lease Agreement to be executed and signed on -?? ? ,/LP- , 1993. ATTEST: Secretary WITNESSES: LESSEE: LACKRO AND PLANK, INC. LESSORS: Frankly 1', Ileming Melissa J. Fleming MARK, WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENS6URG, PA. 17257 COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF jF/ ?T? q Wa'7 On this, the -;?F day of Ju/? , 1993, before me, a Notary Public in and for said County and State, the undersigned officer, personally appeared FRANKLYN F. FLEMING and MELISSA J. FLEMING, husband and wife, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within linstrument, and acknowledged that they executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. (SEAL) My commission expire on: Notary m I_ SS. Mr COUNTY OF On this, the Z h&day of Q. I UYc , 1993, before me, a Notary Public in and for said County and State, the undersigned officer, personall'y appeared 1? . 1a&, O , who acknowledged himself to be the Ll'? ?o}f LUUUUACKRO AND PLANK, INC., a corporation, and that he as such ?tc?? , being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by himself as1? I certify that I am neither an officer nor a director of said corporation. IN WITNESS WHEREOF, I hereunto set my hand and official seal. (SEAL) NotvW S" Rush E. SnydeG COMMONWEALTH OF PENNSYLVANIA Pubk c°?m ss?wn Sept EOres ? 2s ?sss her, aAacoaiation of fades MARK, WEIGLE AND PERKINS - ATTORNEV5 AT LAW - 126 EAST KING STREET - SHIPPENSBURG, RA. 17257 MEMORANDUM OF LEASE AGREEMENT FRANKLYN F. FLEMING AND MELISSA J. FLEMING, of HC 61, Box 342, Shade Gap, Huntington County, Pennsylvania ( hereinafter "Lessors") and LACKRO & PLANK, INC., a Corporation, of R. D. 2, Box 209, Glenmoore, Pennsylvania 19343 (hereinafter "Lessee") hereby enter into this Memorandum of Lease Agreement between Lessors and Lessee this /84_1 day of August, 1995, and agree to record the same, so as to give record notice of the terms of a certain Lease Agreement dated July 29, 1993. 1. Lessors are the record owners of that certain real property in Tell Township, Huntington County, Pennsylvania, more particularly described as tax parcel map reference 47-0607, recorded in the office of the Huntington County Recorder of Deeds in Record Book 267, at Page 485, being some three hundred and fifteen (315) acres, more or less, as the same is more particularly described in Exhibit "A" hereto (hereinafter the 'Premises"). 2. Lessors and Lessee are parties to a certain lease agreement between them for the Premises duly executed on July 29, 1993 (hereinafter the "Lease Agreement"). 3. Pursuant to the terms of the Lease Agreement, Lessors have agreed to grant to Lessee, and Lessee has agreed to pay value to the Lessors for, certain rights in and under the Premises as set forth therein. 4. Pursuant to the Lease Agreement, Lessors thereunder grant to Lessee subject to certain covenants and restrictions, all of which are set forth therein, including but not limited to: (a) Lessee shall have the right to all of the water in and under the Premises, together with the exclusive right to drill for, produce and commercially market such water and Lessee shall have the exclusive right to enter upon the Premises (in such manner and subject to such restrictions as are set forth in the Lease Agreement) for the purpose of drilling and operating for water, laying pipelines, installing storage tanks, machinery, power lines, equipment, fences, roads and structures. 5. The Lease Agreement, and the grant to Lessee contained therein, is subject to certain restrictions, all of which are set forth therein, including but not limited to the limitation that Lessee shall be restricted to construction of a single loading station in such location and in such manner as is set forth in the Lease Agreement. 6. The Lease Agreement contains certain restrictions and provides certain rights as to the use of the Premises, all of which are set forth therein. 7. The term of the Lease Agreement shall be ninety-nine (99) years from the date, July 29, 1993, for so long as water is being produced in commercial quantities from the Premises. 8. Lessors may construct not more than five (5) additional residences upon the Premises. C- I `lAdDli )B MARK, WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSDURG, PA 1 725 7-1 397 9. The rent, additional rent and water royalties agreed upon by the Lessors and Lessee are as set forth on pages 2 and 3 of the Lease Agreement. 10. The Lease Agreement contains a right of first refusal in favor of Lessee in the event of a bonafide offer to purchase all or part of the Premises, as set forth therein. 11. The rights and obligations of the parties to the Lease Agreement are binding upon the heirs, successors and assigns of the parties thereto and run with the land, which land shall be herein defined to mean the Premises. 12. As provided in the Lease Agreement, all notices thereunder are to be provided to the Lessee care of Lackro & Plank, Inc. R.D. 2, Box 209 Glenmoore, PA 19343 with a copy to Lessee's counsel: James McErlane, Esquire 26 E. Market Street Box 565 West Chester, PA 19381-0565 and to the Lessors care of Franklyn F. Fleming and Melissa J. Fleming HC 61, Box 342 Shade Gap, PA with a copy to David P. Perkins, Esquire MARK, WEIGLE AND PERKINS 126 East King Street Shippensburg, PA 17257 True and correct copies of the Lease Agreement may be obtained from either or both of the notice recipients set forth in this paragraph. 13. It is the intention of the parties hereto to cause this Memorandum of Lease Agreement to be recorded in the Office of the Recorder of Deeds of Huntington County so as to afford notice to all interested persons of the terms, conditions, rights, covenants, obligations, restrictions and liabilities between them, and their heirs, successors and assigns, under the Lease Agreement. MARK, WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPEN5BURG, PA 17257-1397 AND NOW, on the date first set forth above, intending to be legally bound hereby, the parties hereto, by their own hand or duly authorized representatives, do hereby accept and agree upon the provisions set forth above, in their entirely, by their signature below. Lessors: BY: ?? yll9Zt7e Franklyn F. Fleming BY: Melissa J Fleming Lessee: Lackro & Plank, Inc. BY: ars ckro, Pres d t & CE MARK, WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBUPG, PA 1 72 5 7-1 39 7 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS. On this, the 18th day of August, 1995, before me, a Notary Public in and for said County and State, the undersigned officer, personally appeared FRANKL,YN F. FLEMING and MELISSA J. FLEMING, husband and wife, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument and acknowledged that they executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official decry k WSW, "ry pubuc COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS. On this, the 18th day of August, 1995, before me, a Notary Public in and for said County and State, the undersigned officer, personally appeared BARRY J. LACKRO, who acknowledged himself to be the President of LACKRO & PLANK, INC., a corporation, and that he as such President, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by himself as President. I certify that I am neither an officer nor a director of said corporation. IN WITNESS WHEREOF, I hereunto set my hand and official seal. POW 1 June MARK, WEIGLE AND PERKINS - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSEIURG, PA. 17257 ALL that certain tract of land, with buildinf;s and inprovuiullts thereon erected, situate in the Township of 't'ell, County OE IIw1L'i.ugLou, Conmonwealth of Pennsylvania, more fully bounded and described as follows: BEGINNING at a P.K. nail set in Township Route 35, also known as Legislative Route 1931'at the corner of lands now or formerly of Williaii G. Ileeter and Freda S. Heeter;= thence along`said'lands'of Heeter, North thirty-seven (37) degrees thirty-sixl'(36) minutes twenty' (20) 'seconds West, seven hundred forty-two and fifty-hundredths (742:50) feet to an iron pill; thence along the same, North fifty-seven (57) degrees twenty-three (23) minutes forty (40) seconds East,,. three hundred. thirty and zero-hundredths (330.00) feet to an iron pin; thence along-'the same North fifty (`i0) degree:: one (01) udnute twenty-five''(25)"seconds West, ninety-two (92) feet to col iron pin; thence along the same North fifty (50) degrees one (01) minute twenty-five (25) seconds West, two thousand six hundred ninety-nine and twenty-six hundredths (2,699.26) feet to a rock`:oak at the "comer of lands purported to bu of 1Inrinl Iteal l:stnti ; thence along said lands purportedly ofzMarial Real lislnt'e Nuctll forty-Lao (42) three _.(03);minutes twenty-one '(21)'seconds 'Last, one thousand seven hundred thirty andtzero-hundredths (1,730.00) feet; thence along the same North forty-six (46)iidegrees,thirty-two (32) minutes eleven (11) seconds West, seven hundred fifteen and forty-six hundredths (715,.46) feet, to an iron'pin at lands now or±forterly of James Weller and Velenora Weller; thence along said lands of .,Weller, North forty-four (44) degrees forty (40) minutes twenty-four (24) seconds Pest:,'' one ,thousand four hundred eighteen and eighty-ui.ne hundredUls (1,418;89)` feet to an I iron pin at the corner Df' lands now or fon:erly of Richard D.'Clouser; P'Sthence`along'said lands of Clouser, South forty-six (46) degrees thirty-two (32) minutes eleven (11) seconds East, one thousand one hundred ninety and eighty-three hundredths °(1,190..83) feet to a stone pile at the corner of lands inow`or' forlllerly of'llarold'Book and Corotlly Book; thence along said lands of Book `'South forty-six ',(46) degrees thirty-two (32) minutes eleven (11) seconds East," two'thousand`one hundred fifty-eight slid ten-hundredths (2,158.10) feet to an iron.pin;,, thence,along said lands of.Book, South thirty-seven (37) do grees",tZaenty_-six' ,(26) „minutes,..forty . (40), seconds East-, one thousand twenty,-tl>ree;'and, seventy-hundredths (1023.70) feet to tut iron pill along Tuwnsilip Route 35, also known as Legislative Route 193, at lands nc><v or i.oxuKrly Of Trustees of Shade Valley Cellx:tery Associationl theuce along said lands of Trustees of Shade Valley; Cautery Association, South forty-one (41) degrees twelve (12) minutes;'forty-eight (48) seconds West, one hundred forty and forty-seven hundredths (140.47) feet to a post; thence along the same South forty-eight (48) degrees fifty-four (54) minutes twenty-five (25) seconds East, one hundred twenty-two and,zero-hundredths (122.00) 'feet; thence along the same, North forty (40) degrees forty-two (42)'minutes forty-seven (47) seconds East, one hundred fifteen and ninety-five hundredths (115.95) feet to an iron pin; thence along the'same "South thirty- seven" (37) degrees Lwunty-six (26) minutes forty (40) secondslEast,'one`thousand'ninety-sbx and ninety-Hundredths i ,. (10966.90), feet to an iron"pn at lands now`or/forterly of Philip Karper; theuce along said lands of'Karper' 'South thirt seven`(37) degrees twenty-three (23) minutes thirty-five (35), seconds West, three hUIIJrQd ni.uety-sis and zero-hundredths (396.00) feet to an iron pin; thence along the sau4e, South twenty-three (23) degrees twenty-three (23) minutes thirty-five (35) seconds West, three hundred forty-six and fifty--hundredths (346.50) feet to an iruLl pin; thence along the same, South forty-four (44) degrees LweuLy-three. (23) minutes thirty-five (35) seconds West, three hundred, forty-seven and ninety-one (347.91) feet to a white oak at lands now or formerly of Roy J. Parson et a1; thence along said lands of Parson et al, North fifty-one (51) degrees fifty-tinree (53) minutes thirty-nine (39) seconds West, nine hutldred seventy-OHO and ninety-L1+0 hundredths (971.92) feet to an iron pin; thence along tine satue, South * (!) 1 ? "ti . 1 ` ?? .? `,.? I-(. -fx :.. _1 _ rn ;? ?" .. ,? v FRANKLYN F. FLEMING and MELISSA J. FLEMING, Plaintiffs V. LACKRO AND PLANK, INC., and BARRY J. LACKRO, Defendants CIVIL ACTION - LAW AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-3055 Civil SS Patricia A. Frey, being duly sworn according to law, deposes and says that on March 2, 2005, a true and attested copy of Notice and Complaint was served upon the Defendant, Lackro and Plank, Inc. Manner of service: by mailing the same postage paid, via regular first class mail and certified mail, return receipt requested, at Shippensburg, Pennsylvania, addressed as follows: Lackro and Plank, Inc. 258 Meadowlake Drive Downingtown, PA 17335-2152 The return receipt signed by the Defendant is evidence of delivery to him and is attached hereto as "Exhibit A." 124;. 4 ) u Patricia A. Frey Sworn to and subscribed before me this /?`u' day of March, 2005. Notary Public NOINM SEAL Nolary PuW sF?arset?oeoaalc?ta?anr?ocaixarr I'M CommWbn SW Arm Jun 7.2008 I WEIGLE & ASSOCIATES. P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG. PA 17257-1397 IN THE, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANKLYN F. FLEMING and MELISSA J. FLEMING, Plaintiffs NO. 04-3055 Civil v LACKRO AND PLANK, INC., and BARRY J. LACKRO, Defendants CIVIL ACTION - LAW PROOF OF OF SERVICE 171 Ln iv r9 1LI" Fri Postage 5$ $ C3 5w ? Lrf Ced,ied Fee M Return Receipt Fee O (Endarsement liequired) O Restricted 0.1ur y Foe O (Endorsement Required) r3 Total Postage & Fees m v7 _ Sent To C3 street, Apt. No.; or PO Box a , 5 2 M?9 a! r3 .. _ . _ . C/'4 21P+4 ?",Fa'slmerH .t ? `1a A. Signature - .-'- ? Agent Name) I C. Date of Delivery or on the front if space permits. 1. Article Addressed to: Lackro 4 pio,nk, 4m. 015 ' 6 mPrc3ow)cA('r?'?Five 7owntn5rown,Q( 1 Ig335-alsa 0. Is delive%,abdress di fr 1? ? Yes If YES, enter tlef q'tf??s' 6H(dryp No MAR 0 2 ?nn5 3. Service Type K Certified Me ? Express Mail ? Registered \ Return }8ece for Merchandise ? Insured Mail ? CU.D: 4. Restricted Delivery? (Extra Fee) ? Yesi 2. Article Number r? ftransferfrom service label) E7000-153C- 0003.5903 is SO PS Form 3811, August 2001 Domestic Return Receipt 102595-02-M-1540 EXHIBIT "A" WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG. PA 17257-1397 ?t ? C1' FRANKLYN F, FLEMING and MELISSA J. FLEMING, Plaintiffs V. LACKRO AND PLANK, INC., and BARRY J.LACKRO, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-3055 Civil CIVIL ACTION - LAW AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS Patricia A. Frey, being duly swom according to law, deposes and says that on March 2, 2005, a true and attested copy of Notice and Complaint was served upon the Defendant, Barry J. Lackro, manner of service: by mailing the same postage paid, via regular first class mail and certified mail, return receipt requested, at Shippensburg, Pennsylvania, addressed as follows: Barry J. Lackro, President Lackro and Plank, Inc. 258 Meadowlake Drive Downingtown, PA 17335-2152 The return receipt signed by the Defendant is evidence of delivery to him and is attached hereto as "Exhibit A." Patricia A. Frey Sworn to and subscribed before me this 7th day of March, 2005. `TrrtR Notary Public NOTARIAL SE& WRIGN L TOME Nolary Kdit snaPEPW AGOMUGH OMM ocau M My commwan Expires JW 7, 2008 WEIGLE 6, ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANKLYN F. FLEMING and MELISSA J. FLEMING, Plaintiffs v LACKRO AND PLANK, INC., and BARRY J. LACKRO, Defendants NO. 04-3055 Civil CIVIL ACTION - LAW PROOF OF OF SERVICE 0 7 ru rA RI ?p P $ CD ostage ?. ? \ 7 rr ? Certified Fee 1 30 ? Postmark M Return Receipt Fee 7S Rare 0 (Endorsement Required) O Restdctetl Delivery Fee O (EntlorSement Required) O Total Postage & Fees $ 5 Ln to a SentTo ¦ Cigrrt_O. ox r N --- S P S ate 0 ;o POB tre et, Aloft NO.; or O ox No. E3 aZ5$ fapUUC?au 1?A? eV e arse --_-------- -__-.-_-- . - Ci S Z P tate, I .4 ty , P 14335 2115 PS Form 3800, May 2000 See Reverse fur Instructions ace, 1. Article Addressed to; 1s1c7u'o,Pc?slclrrT1 r3ki J. Lci d Nay*, 1r'e- 2.56 f?ea?omin?e -Drl?e ?Otil ntY?-?Clil , P R 9 3 35 2,15 A j$III-JW 2. Article Number (rransfar from service label) r PS Form 3811, August 2001 A. Signature ? Agent ? Addressee n eVame Date of Delivery D. Is delivery address different from i ? Yes If YES, enter delivery addres OdIjC- ?? 9 3. Service Type 'I Certified Mail ? s?l4ail Registered Re ?eo0i ? Insured Mail ? C , 4. Restricted Delivery? (Extra Fee) 1530- 0003-5403- toy o Domestic Return Receipt EXHIBIT "A" ? Yes 102595-02-M-1540 WEIGLE & ASSOCIATES, PC. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSSURG, PA 17257-1397 :, ;,. Franklyn F. Fleming and Melissa J. Fleming vs L.ackro and Plank, Tnr , and Barry J. Lackro Case No. 04-3055 Civil Statement of Intention to Proceed To the Court: Jerry A. Weigle, Esquire intends Print Name Sign Name Date: 9 lad- 0 Attorney for for Explanatory Comment oceed with the above caption matt r-- anklyn F. Fleming and The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. sa J. Fleming ra -rs ? ?. cn -r? ?'? ,`- ?' ? ? ?ry;f t.?`?. i.! 1 S ` °•. r" ? -?, -,. i -':. 6 ??'' ?- Franklyn F. Fleming and Melissa J. Fleming vs Case No. 2004-3055 Lackro and Plank, Inc. and Barry J. Lackro Statement of Intention to Proceed To the Court: Jerry A. Weigle, Esquire intends to proceed with the above Print Name Jerry A. Weigle r Sign Name Date: 10-2-2008 Attorney for Franklyn F. F1 Melissa J. Fle Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case maybe dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. t+7 cvx ?""? ;"1'S -??-G 1 < «.u £:? ?, ".,:?'; c; -r_1 i A tt a HO P,,j { Franklyn F. Fleming and Melissa J. Fleming Case No. ",_ UI BERLAND COUNTY Larkro and Plank, Inc. and PENNSYLVANIA Barry J. Lac ro' Statement of Intention to Proceed To the Court: Jerry A. Weigle, Esquire Print Name Jerry A. Weigle, Sign Name Date: 08=29-11 Attorney for 2004 - 3055 to proceed with the above Explanatory Comment Franklyn F. Flemin Melissa J. Fleming The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I. Rule ofcivil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. David D. Buelr Prothonotary Office of the TYOthdnwtaiy Cum6er[and County, (Pennsylvania 7�yrkS. Sohonage, TSQ Solicitor 014 — 3()5S CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TH DAY OF OCTOBER, 2014, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE —THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square 0 Suite100 ® Carlisle, Tfq 0 Phone 717 240-6195 0 Tax 717 240-6573