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HomeMy WebLinkAbout01-1424CYNTHIA L. MYERS, PLAINTIFF Vo AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC, DEFENDANTS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 01 1%7 / PRAECIPE FOR ISSUANCE OF A WRIT OF SUMMONS TO CURTIS IL LONG, PROTHONOTARY: Please issue a Writ of Summons against the defendants, Agway Petroleum Corporation and Agway Energy Products, LLC, and enter my appearance on behalf of the plaintiff, Cynthia L. Myers. Please direct the Sheriff to serve the defendants as follows: AGWAY PETROLEUM CORPORATION 333 BUTTERNUT DRIVE P. O. BOX 1333 SYRACUSE, NEW YORK 13201 AGWAY ENERGY PRODUCTS, LLC C/O CT CORPORATION SYSTEMS 1515 MARKET STREET, STE. 1210 PHILADELPHIA, PA 19102 DaW: March 12,2001 By: Respectfully submitted, To: AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC You are hereby notified that Cynthia L. Myers, the plaintiff, has commenced against you which you are required to defend or a defanlt judgment may be entered against you. O~te: ,~-tto~ 'C9/ .2001 By: DEPUTY SHERIFF'S RETURN - U.S. CASE NO: 2001-01424 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND MYERS CYNTHIA L VS. AGWAY PETROLEUM CORP ET AL CERTIFIED MAIL R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT ,AGWAY PETROLEUM CORPORATION , by United States Certified Mail postage prepaid, on the 13th day of March 333 BUTTERNUT DRIVE P.O. SYRACUSE, NY 13201 and attested copy of the attached WRIT OF SUMMONS with receipt card was signed by 00/00/0000 ,2001 at 0008:00 HOURS, BOX 1333 Additional Comments: ITEM RETURNED UNOPENED " ADRESSEE UNKNOWN "ON 4/16/01 The at a true Together returned on Additional Comments Sheriff's Costs: Docketing Cert Mail Affidavit Surcharge 18 00 2 99 00 10 00 00 30 99 ts° ~as Kllne Sheriff of Cumberland County Paid by MARCUS, MCKNIGHT & HUGHES Sworn and subscribed to before me this m~{ day of ~ ~w~ ~ A.D. ~P~othonotary ~ on 04/16/2001 SHERIFF'S RETURN - CASE NO: 2001-01424 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MYERS CYNTHIA L VS AGWAY PETROLEUM CORP ET AL OUT OF COUNTY R. Thomas Kline duly sworn according to law, and inquiry for the within named DEFENDANT , AGWAY ENERGY PRODUCTS LLC but was unable to locate Them in his bailiwick. deputized the sheriff of PHILADELPHIA County, serve the within WRIT OF SUMMONS Sheriff or Deputy Sheriff who being says, that he made a diligent search and to wit: He therefore Pennsylvania, to On April 16th , 2001 , this office was in receipt of the attached return from PHILADELPHIA Sheriff's Costs: Docketing Out of County Surcharge DEP. PHILA CO 6.00 9.00 10.00 116.00 .00 141.00 04/16/2001 MARCUS, Sheriff of Cumberland County MCKNIGHT & HUGHES Sworn and subscribed to before me roo "=-nm, ~eOI Defendent SERVED AND MADE KNOWN TO ~ <g O t/~ ~ ~ ~ ~ ~ Defendant Comply by hcnding$ true ~nd ~ttested copy of the wi~in Summons/Complaint, issued in the =bore ccptioned m~tter on ~ ~e/~ ~ ,~O01 , atlo;oo o'clock,' A M.,E.S.T./~. =t /~ /.% ~~% .~% _ /~%e ~ - , in the County of Philadelphia, S~ate o~ Pennsyiv~i~, to ~ ~ ~ ~ ~ ~ ~O u O ~ O~ ~ (i) ~e =foresmd delendent, personally; ~ (2) en adult member of the ~emily o~ said defendgnt, with whom smd de!endear resides, who stored that his/her rel~ffonship to said defendant is that o{ ; ~ (3) =n ~dult person m charge of defendenVs residence; the sdid adui[ person having tensed, upon re- quest, to give his/her n~me end rel~onship to said defendant; ~ (4) ~e m~n~ger/cierk of the plgce of lodging in which said defendant resides; ~ (5) dgent or person for ~e ti=e being in charge of defendant's office or usual piece of business. ~ (6} the ~nd officer of s~id de~endant Company; . Deputy ?he,z// ~a The Court of Common Pleas of Cumberland County, Pennsylvania Cynthia L. Myers VS. Agway Petroleum Corp., et. al. Serve: Agway Energy Products, L~. 01-1424 Civil ~OW, 3 / 13 / 01 ,20 O ~, I, SHERIFF OF CUMBERLAixrD COUNTY, PA, do hereby deputize the Sheriff of Philadelphia County to execute this Writ, flats deputation being made a~ the request and risk of the Plaintiff. Sheriff of Cumberland County, PA HOW, upon at try handbag to a and made tmown to Affidavit of Service ,20 , at o'clock copy of the or/g/naI SO gllS'Wers, served the the contents thereof. Sworn and subscribed before me this day of 20__ Sheriff of COSTS SERVICE MILEAOE )drFIDAVIT County, PA ~ Oo 0L&2 0005 9~00 00hE 660& eJenbs esnoqui ~J!Jaqs ~,I,L Jo O NvqEI3BI,NFIO 40 · Complete items 1,2, and 3. Also (rom: item 4 if Restricted Delivery is dr, sired · Attach this card to the back of the mi or on the front if space permits AgWa~ Petroleum 333 iButternut Dr4ve Svraeuse, New Vork 2. Article Number (Copy from service I~,he 7099 3400 0018 5000 ?7'/0 PS Form 3811, July 1999 ,,. ~< II+mm Rece~p' Agent Addressee BINGAMAN, HESS, COBLENTZ & BELL, P.C. BY: HARRY D. McMUNIGAL, ESQUIRE IDENTIFICATION NO. 38386 TREEVIEW CORPORATE CENTER 2 MERIDIAN BLVD., SUITE 100 WYOMISSING, PA 19610 (610) 374-8377 (610) 376-3105 (Fax) ATTORNEY FOR DEFENDANTS AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA L. MYERS, Plaintiffs CIVIL ACTION - LAW v. NO. 0%!424 AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC Defendant JURYTRIALDEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT TO: PROTHONTARY OF CUMBERLAND COUNTY: Kindly enter a Rule on the Plaintiff to file a Complaint within twenty (20) days from service of said Rule or suffer a judgment of non pros. BINGAMAN, HESS, COBLENTZ & BELL, P.C. BY: H~R3MCMUNIGAL, ESQUIRE RULE AND NOW, this /~'~ day of ~, 2002, a Rule is entered on the Plaintiff to file a Complaint within twenty (20) days from the service of this Rule or suffer a judgment of non pros. DATE: Pt~O'rHONOTARY CYNTHIA L. MYERS Plaintiff AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-1424 CIVIL ACTION - LAW NOTICE TO DEFEND 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, order 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 clan-ns 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 money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE· IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 1-800-990-9108 Americans with Disabilities Act of 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. Ail arrangements must be made at least 72 hours prior to any heating or business before the court. You must attend the scheduled conference or hearing. 2 CYNTHIA L. MYERS Plaintiff AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO· 01-1424 CIVIL ACTION - LAW COMPLAINT AND NOW, this 4th day of February 2002 comes the plaintiff, CYNTHIA L. MYERS, by and through her attorneys, Irwin, McKnight & Hughes, and makes the following Complaint against the defendants, AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC, as follows: The plaintiff is Cynthia L. Myers, an adult individual residing at 33 South High Street, #1, Newville, Pennsylvania, 17241 The defendant, Agway Petroleum Corporation, has a mailing address of 333 Butternut Drive, P. O. Box 1333, Syracuse, New York, 13201 The defendant, Agway Energy Products, LLC, has a mailing address c/o CT Corporation Systems, 1515 Market Street, Ste. 1210, Philadelphia, Pennsylvania 19102. 3 On March 13, 1999, the plaintiff, Cynthia L. Myers, went to the business location of Agway as a business invitee at the location of the business being 520 East North Street, Carlisle, Pennsylvania 17013. The property was legally is owned by defendant on the date of plaintiffs injury a copy of the Deed as attached hereto and made a part of this Complaint. On March 13, 1999, the plaintiff, Cynthia L. Myers, went to said business location at 520 East North Street, Carlisle, Pennsylvania 17013. As the plaintiff, Cynthia L. Myers, approached the entrance to said business, the toe of her shoe caught on an elevation in the cement. She fell forward directly in front of the glass entrance doom at the front of the business hitting her face on the concrete. The plaintiff, Cynthia L. Myers, was treated in the emergency room of the Carlisle Hospital, Carlisle, Pennsylvania 17013. The plaintiff sustained bruising injuries to her left eye and a severe gash above her left eye which required stitches. The plaintiffs glasses were smashed in the fall. 4 10. As a result of the fail, the plaintiff, Cynthia L. Myers, has sustained damages consisting of her lost wages and medical expenses. 11. The plaintiff also sustained injuries causing significant pain and suffering and seeks damages for pain and suffering as well as damages for any permanent injuries. CYNTHIA L. MYERS AGWAY PETROLEUM CORPORATION 12. The averments of fact contained in paragraphs one (1) through eleven (11 ) are hereby incorporated by reference and are made apart of this Count. 13. The defendant, Agway Petroleum Corporation, was responsible for providing a safe entrance to the store. 13. The defendant was negligent in that it failed to do the following: To warn customers of an uneven entrance to the store. To repair the uneven entrance to the store. To provide a safe entrance to the store. To provide warning of the raised concrete at the entrance of the store. 14. The negligence of the defendant, Agway Petroleum Corporation, is the proximate cause of the injuries sustained by the plaintiff. THEREFORE, the plaintiff, Cynthia L. Myers, seek damages against the defendant, Agway Petroleum Corporation, less than Twenty-Five Thousand and no/100 ($25,000.00) Dollars together with the costs of this action and interest as permitted by law. CYNTHIA L. MYERS AGWAY ENERGY PRODUCTS~ LLC. 15. The averments of fact contained in paragraphs one (1) through fourteen (14) are hereby incorporated by reference and are made a part of this Count. 16. The defendant, Agway Energy Products, LLC., was responsible for providing a safe entrance to their store. 17. The defendant was negligent in that it failed to do the following: To warn customers of an uneven entrance to the store. To repair the uneven entrance to the store. To provide a safe entrance to the store. To provide warning of the raised concrete at the entrance of the store. 6 18. The negligence of the defendant, Agway Energy Products, LLC., is the proximate cause of the injuries sustained by the plaintiff. THEREFORE, the plaintiff, Cynthia L. Myers, seek damages against the defendant, Agway Energy Products, LLC., less than Twenty-Five Thousand and no/100 ($25,000.00) Dollars together with the costs of this action and interest as permitted by law. Date: February 4, 2002 Respectfully submitted, By: 6~ar~eU,. t~ pA~mMi~~ eet~~ Carlisle, Pennsylvania 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Attorney for plaintiff EXHIBIT A n enture, the year o! our Lord one thousand nine hundred seventy (1970) I . BETWEEN . CARLISLE LIVESTOCK AIARKET, INC., a Pennsylvania corporation having its principal place of business at Carlisle, Pennsylvania, GRANTOR AND AGWAY PETROLEUM CORPORATION, a New York corporation qualified to do business in Pennsylvania, whose address is 333 Butternut Drive, Dewltt. New York, (P.O. Box 1333. Syracuse. New York, 13201), GRANTEE WITNESSETH, that tAe sa/a~ Carlisle Livestock Market, Inc. , Grantor, /o*' end i~ ~o',udderatio~ of gke aura o! Fifteen Thousand .... {$15,000.00} - - Dollars, lawful money of the United States of America, unto it well and t~ly paid by the said Agway Petrolem-n Corporation, Grantee. at and be/ore the sealint7 and delivery o/there presents, the receipt whereo/ ia hsreb~; acknowledged, has granted, bargained, sold, aliened, en/eoffed, re- leased and c~f~ed, a~ bF these ~esenta does prant, bargain, sell, alien, en/eoff, rele~e and ~onfi~ u.~ the sa~ Grantee. its successors and ~signs, ALL THAT CERTAIN tract of land situate partially in the Borough of Carlisle and partially in the Township of North Middleton, Cumberland County, Pennsylvania, more particularly bounded and described as follows: BEGINNING ~t a point distant 46 feet measured Northwestwardly and at right angles from a point in the line established as the center line of main track of railroad of the Pennsylvania Railroad Company, known as The Cumberland Valley Branch, Phila- delphia Division, at survey station 918 plus 81.92 therein; said point in center line of main track of railroad being at the distance of 1491.58 feet measured Northeast- wardly along said center line of main track of railroad from another point therein opposite the center of said Railroad Company's Gettysburg Junction passenger station; extending from said beginning point North 30 degrees 28 minutes West by land of the Pennsylvania Railroad Company, crossing the Southeasterly line of the I~oor House Road, the distance of 365.85 feet to a point in the middle line of said Poor House R6ad, in the Southeasterly line of land now or formerly of the Alexander heirs; thence North 60 degrees 26 mi. nutes East, along said middle line of the Poor House Road, by said last mentioned land. crossing the line dividing the Borough of Carlisle from the Town- . ship of Middleton, the distance of 26.35 feet to a point distant 50 feet measured South- wardly and at right angles from a point in the line established as the center line of the Carlisle Freight Track of said The Pennsylvania Railroad Company; thence by land of The Pennsylvania Railroad Company on a llne parallel with and distant 50 feet measured Southwardly at right angles and radially from center line of the Carlisle Freight Track of Railroad the following two courses and distances: (1) South 84 degrees 07 minutes East, recrossing said Southeasterly line of Poor House Road, 134.91 feet to a point Southwardly and r. adlally from the point' of tangent of said center line of the Ca'rlisle · Freight Track of Railroad, at survey station 917 plus 93.83 therein, and (2) Eastwardly. having said last course hereinbefore described aa a tangent on a curve to the left having a radius of 1960.08 feet. the chord of which bears North 86 deg{'ees 43 minutes East for a length of 624.90 feet, an arc length of 627. 18 feet to a point, and thence South 59 degrees 32 minutes West, still by land of The Pennsylvania Railroad Company in a line parallel with and distan{ .t6 feet measured Northwestwarflly and at right angles fr,~m said center line of main track of railroad, recrossing said line dividing the To-~nship of Middleton from the Borough of Carlisle the distance of 690,.88 feet to the place'of Beginning. Containing 114, 19~4 square feet, more or less, or two acres and six thousand two hundred and fifteen ten.thousandths of an acres (2.6Z15 acres), or less. BEING the same tract of land conveyed to the Grantor herein by Deed of The Pennsylvania Railroad Company dated December 23. 1936, and recorded in Deed Look "R", Volume 11, Page 336, less, however, a small triangular lot of ground and right of way conveyed by the Grantor hereih to Cumberland Farm Bureau Co.operative Association by Deed recorded in Deed Book "J", Volume SE, Page 1Z6, and dated April Z5, 1941. THE WITHIN conveyance is subject to the conditions contained in the above recited Deed from The Pennsylvania Railroad Company as modified by a subsequent agreement recorded ~~w~:xl~xXl~.x~xvltixrgx~kX~:~ta~on July 13, i970. 727 n enture, o[ our Lord one thousand nine hu~lred 'seventy (1970) . BETWEEN CARLISLE LIVESTOCK MARKET, INC., a Pennsylvania corporation having its l~rincipal place of business at Carlisle, Pennsylvania, GRANTOIt AND AGWAY PE'TROLEUM CORPORATION, a New York corporation qtmlified to do business in Pennsylvania, whose address is 333 Butternut Drive, Dewitt, New York, (P.O. Box 1333, Syracuse, New York, 13201), GRANTEE WITNESSETH, that the s&id Carlisle Livestock Market, [nc. , Grantor, fo~a~4ineoaddo~tionofthsru~no! Fifteen Thousand .... ($15,000.00) . . Dollars, hwf~ ~ of the United S~t~ of Ame~, unto it well a~ t~ly paid bp the ~ald A~ay ~etrole~ Corporation, Grantee, a~ and before the sealing a~ dellve~ o/these presents, the receipt whereof ~ hereby ~owledged, ~ granted, bargained, l~d ~ confi~ed, a~ by these ~esenta ~es ~rant, bargain, sell, alien, eh/coif, rcle~e and confi~ un~ the sa~ Gxantee, its successors A~L THAT CERTAIN tract of land sltu~te partially in the Borough of Carlisle and pa~ia~y in the Township of North Middleton, C~berland County, Pennsylvania, more particularl~ bounded and described as follows: BEGINNING ~t a point distant 46 feet measured Northwestwardly and at right angles from a point in the line established as the center line of r~ain track of railroad of the Pennsylvania Railroad Company, known as The Cumberland Valley Branch, Phila- delphia D/vision, at survey station 018 plus 81.92 therein; said point in center line of main track of railroad being at the distance of 1491.58 feet measured Northeast- wardly along said center line of main track of railroad from another point therein opposite the center of said Railroad Company's Gettysburg ,~unctlon passenger station; extending from said beginning point North 30 degrees 28 minutes West by land of the Pe~-nsy1vanla Railroad Company, crossing the Southeasterly line of the Poor House Road, the distance of 3/~5.85 feet to a point in the middle 11ne of said Poor House R~ad, in the Southeasterly line of land now or formerly of the Alexander heirs; thence North (~0 degrees 20 minutes East, along said middle line of the Poor House Road, by said last mentioned land, crossing the line dividing the Borough of Carlisle from the Town* ship of Middleton, the distance of 20.35 feet to a point distant 50 feet measured South- wardly and at right angles from a point in the line established as the center line of the Carl£sle Freight Track of said The Pennsylvania Railroad Company; thence by land of The Penne, ylvanla Railroad Company on a llne parellel with and distant 50 feet measured Southwardly at right angles and radially from center line of the Carlisle Freight Track of Railroad the following two courses and distances: (1) South 84 degrees 07 minutes East, recrossing said Southeasterly line of Poor House Road, 134.91 feet to a point Southwardly and Tad/ally from the point- of tangent of said center line of the C~/rlisle · Freight Track of Railroad, at survey station 917 plus 93.83 therein, a~cl (2) Eastwardly, having said last course hereinbefore described as a tangent on a curve to the left having a radius of 1900.08 feet, the cho'rd of which bears North 80 degrees 43 minutes East ~oo~,,,~ 23PAC[ 726 for a length of 624.90 feet, an arc length of 627. 18 feet to a point, and thence South 59 degrees 32 minutes West, still by land of The Pennsylvania Railroad Company in a line parallel with and distan£ 46 feet measured Northwestwardly and at right angles from said center line of main track of railroad, recrossing said line dividing the Townsbip of Middleton from the Borough of Ca. rlisle the distance of 69t~.88 feet to the place of Beginning. Containing 114. 1914 square feet, more or less, or two acres and six tho¢~and two hundred and fifteen ten-thousandths of an acres (2.6215 acres), more or less. B,"i'ING the same tract of land conveyed to the Granter herein by Deed of The Pennsylvania Railroad Company dated December 23, 1936. and recorded in Deed Book "R". Volume 11, Page 336. less. however, a small triangular lot of ground and right of way conveyed by the Grantor hereih to Cumberland Farm Bureau Co-operative Association by Deed recorded in Deed Book"J". Volume lg, Page 176. and dated April ZS, 1941. TI-II~ WITHIN conveyance ~s subJeCt to the conditions contained in the above recited Deed from The Pennaylvania Railroad Company as modified by a subsequent agreement recorded immr~x~rd~gm--xlxxl, lx~~r~..~& on July 13, 1970. Cumb. Co., ,~.hool Dist. Cumb. Co, P~ 727 VERIFICATION The foregoing Complaint is based upon information which has been gathered by counsel and myself in the preparation of this action. I have head the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: February 4, 2002 7 CYNTHIA L. MYERS Plaintiff AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-1424 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Complaint was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Harry D. McMunigal, Esq. Bingaman, Hess, Coblentz & Bell Treeview Corporate Center Suite 100, 2 Meridian Boulevard Wyomissing, PA 19610 Date: February 4, 2002 By: IRWIN, McKNIGHT HUGHES ~A. M~~~G~sGiuire 60 West PomI~d3.S~et Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 BINGAMAN, HESS, COBLENTZ & BELL, P.C. BY: HARRY D. McMUNIGAL, ESQUIRE IDENTIFICATION NO. 38386 TREEVIEW CORPORATE CENTER 2 MERIDIAN BLVD., SUITE 100 WYOMISSING, PA 19610 (610) 374-8377 (610) 376-3105 (Fax) ATTORNEY FOR DEFENDANTS AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA L. MYERS CIVIL ACTION - LAW AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC NO. 01-1424 JURY TRIAL DEMANDED ENTRY OF APPEARANCE Kindly enter my appearance for Defendants with offices located at Treeview Corporate Center, 2 Mer/dian Boulevard, Suite 100, Wyomissing, PA 19610 as the place within the Cotmty of Berks where papers, process and notices may be served. BINGAMAN, HESS, COBLENTZ & BELL, P.C. Harry~c~unigal,~Esquire DATE:d ',,~. 2 '0 BINGAMAN, HESS, COBLENTZ & BELL, P.C. BY: HARRY D. McMUNIGAL, ESQUIRE iDENTIFICATION NO. 38386 TREEVIEW CORPORATE CENTER 2 MERIDIAN BLVD., SUITE 100 WYOMISSING, PA 19610 (610) 374-8377 (610) 376-3105 (Fax) ATTORNEY FOR DEFENDANTS AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA L. MYERS V. AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC C1VIL ACTION - LAW NO. 01-1424 JURY TRIAL DEMANDED 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 Answer and New Matter 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 with only such further notice to you as may be required by law, for any money claimed in the Answer and New Matter or for any other claim or relief requested by the defendant. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, OR IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator 4th Floor Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Telephone: 717-240-6200 BINGAMAN, HESS, COBLENTZ & BELL, P.C. BY: HARRY D. McMUNIGAL, ESQUIRE IDENTIFICATION NO. 38386 TREEVIEW CORPORATE CENTER 2 MERIDIAN BLVD., SUITE 100 WYOMISSING, PA 19610 (610) 374-8377 (610) 376-3105 (Fax) ATTORNEY FOR DEFENDANTS AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA L. MYERS V. AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC CIVIL ACTION - LAW NO. 01-1424 JURY TRIAL DEMANDED DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFF' COMPLAINT 1. Denied. After reasonable investigation, answering Defendants are without information sufficient to form a belief as to the truth or accuracy of the averments of paragraph of 1 Plaintiff's Complaint and the same are accordingly denied. Specific proof thereof, if relevant, is demanded at trial. 2. Admitted. 3. Admitted. 4. It is specifically denied that answering Defendants operated a business at the stated address at any time relevant herein. It is further specifically denied that Plaintiff was ever a business invitee at property owned or operated by Answering Defendants at any relevant time herein. As to the remaining allegations of paragraph 4, after reasonable investigation, answering Defendants are without information sufficient to form a belief as to their truth or accuracy, and the same are accordingly denied. Specific proof thereof, if relevant, is demanded at trial. 5. Denied. It is specifically denied that the referenced property was legally owned by either or both of the answering Defendants on the date of Plaintiff's injury. While it is admitted that what purports to be a deed to this property is attached to Plaintiff's Complaint, it is further averred that said deed does not establish that Answering Defendants, or either of them, owned said property at the time of the incident at issue herein. 6. Denied. After reasonable investigation, answering Defendants are without information sufficient to form a belief as to the truth or accuracy of the averments of paragraph 6 of Plaintiff's Complaint and the same are accordingly denied. Specific proof thereof, if relevant, is demanded at trial. By way of fia~ther answer, the allegations of paragraphs four and five of this Answer are incorporated herein by reference as though fully set forth at length. 7. Denied. After reasonable investigation, answering Defendants are without information sufficient to form a belief as to the tn~th or accuracy of the averments of paragraph 7 of Plaintiff's Complaint and the same are accordingly denied. Specific proof thereof, if relevant, is demanded at trial. By way of further answer, the allegations of paragraphs four and five of this Answer are incorporated herein by reference as though fully set forth at length. 8-9. Denied. After reasonable investigation, answering Defendants are without information sufficient to form a belief as to the truth or accuracy of the averments of paragraphs 8 and 9 of PlaintiWs Complaint and the same are accordingly denied. Specific proof thereof, if relevant, is demanded at trial. 10. Denied. The allegations of paragraph 10 constitute conclusions of law to which no response is required. To the extent that responsive pleading is required, after reasonable investigation, answering Defendants are without information sufficient to form a belief as to the truth or accuracy of these allegations, and the san~e are accordingly denied. Specific proof thereof, if relevant, is demanded at trial. I 1. The allegations of paragraph 11 are deemed denied pursuant to Pa.R.C.P. 1029. CYNTHIA L. MYERS v. AGWAY PETROLEUM CORPORATION 12. Answering Defendants incorporate herein by reference as though fully set forth at length paragraphs 1 through 11 of their Answer. 13-14. The allegations of paragraphs 13 and 14 am deemed denied pursuant to Pa.R.C.P. 1029. By way of further answer, the allegations of paragraphs four and five of this Answer are incorporated heroin by reference as though fully set forth at length. WHEREFORE, answering Defendants respectfully request that Plaintiff's Complaint be dismissed with prejudice and costs. CYNTHIA L. MYERS v. AGWAY ENERGY PRODUCTS, LLC. 15. Answering Defendants incorporate herein by reference as though fully set forth at length paragraphs 1 through of its Answer. 16-18. The allegations of paragraphs 16 through 18 are deemed denied pursuant to Pa.R.C.P. 1029, By way of further answer, the allegations of paragraphs four and five of this Answer are incorporated herein by reference as though fully set forth at length. WHEREFORE, answering Defendants respectfully request that Plaintiff's Complaint be dismissed with prejudice and costs. 19. NEW MATTER Plaintiff's Complaint fails to state a claim upon which relief may be granted. 20. Plaintiff's claims, if any, may be barred by the applicable statute of limitations. 21. Plaintiff's claims, if any, may be barred and/or substantially reduced by the doctrines of assumption of the risk, contributory negligence and/or comparative negligence. 22. To the extent that Plaintiff did sustain injuries as alleged, which allegations are specifically denied, then said injuries were caused by individuals other than answering Defendants and over whom answering Defendants had no control and/or by circumstances beyond answering Defendants' control. 23. No dangerous or defective condition existed at any relevant time herein on the referenced property. 24. If any such dangerous or defective condition did exist, then said condition was open and obvious to any individual exemising reasonable care for his or her own safety. WHEREFORE, answering Defendants respectfully request that Plaintiff's Complaint be dismissed with prejudice and costs. BINGAMAN, HESS, COBLENTZ & BELL, P.C. Harry ~ire Attorney for Defendants 10190-30 VERIFICATION I, Wesley Anderson, state that I am a representative of the Defendants, Agway Petroleum Corporation and Agway Energy Products, LLC., in the within action and that the facts set forth in the foregoing Defendant's Answer with New Matter to Plaintiffs Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unswom falsification to author/ties. Dated: .,?t/~g.~/6 2_. Wesley And~r~bn BINGAMAN, HESS, COBLENTZ & BELL, P.C. BY: HARRY D. McMUNIGAL, ESQUIRE IDENTIFICATION NO. 38386 TREEVIEW CORPORATE CENTER 2 MERIDIAN BLVD., SUITE 100 WYOMISSING, PA 19610 (610) 374-8377 (610) 376-3105 (Fax) ATTORNEY FOR DEFENDANTS AGWAY PETROLEUiVl CORPORATION and AGWAY ENERGY PRODUCTS, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA L. MYERS : V. ~ AGWAY PETROLEUM CORPORATION and : AGWAY ENERGY PRODUCTS, LLC : CIVIL ACTION - LAW NO. 01-1424 ZEFRY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Harry D. McMunigal, Esquire, hereby certify that a true and correct copy of the foregoing Defendant's Answer with New Matter to Plaintifffs Complaint was mailed by United States first class mail, postage prepaid upon the following party(ies): Marcus A. McKnight, III, Esquire 60 West Pomfret Street Carlisle, PA 17013 DATE: Harry D.~quire BINGAMAN, HESS, COBLENTZ & BELL, P.C. BY: HARRY D. McMUNIGAL, ESQUIRE IDENTIFICATION NO. 38386 TREEVIEW CORPORATE CENTER 2 MERIDIAN BLVD., SUITE 100 WYOMISSING, PA 19610 (610) 374-8377 (610) 376-3105 (Fax) ATTORNEY FOR DEFENDANTS AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA L. MYERS V. AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC REX D. MANWEILER and RALPH W. MANWEILER, individually, and t/a MANWEILER and MANWEILER CIVIL ACTION - LAW NO. 01-1424 JURY TRIAL DEMANDED 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 Joinder 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 with only such further notice to you as may be required by law, for any money claimed in the Joinder Complaint or for any other claim or relief requested by the defendant. You may lose money or property or other fights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, OR IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator 4th Floor Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Telephone: 717-240-6200 BINGAMAN, HESS, COBLENTZ & BELL, P.C. BY: HARRY D. McMUNIGAL, ESQUIRE IDENTIFICATION NO. 38386 TREEVIEW CORPORATE CENTER 2 MERIDIAN BLVD., SUITE 100 WYOMISSING, PA 19610 (610) 374-8377 (610) 376-3105 (Fax) ATTORNEY FOR DEFENDANTS AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA L. MYERS V. AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC V. REX D. MANWEILER and RALPH W. MANWEILER, individually, and tYa MANWEILER and MANWEILER CIVIL ACTION - LAW NO. 01-1424 JURY TRIAL DEMANDED DEFENDANTS' COMPLAINT AGAINST ADDITIONAL DEFENDANTS 1. The present action was instituted by a Writ of Summons that was filed on March 12, 2001, followed by the filing of a Complaint on or about February 4, 2002. A true and correct copy of Plaintifl's is attached hereto as Exhibit "A". 2. This is a negligence action brought for personal injuries claimed to have been sustained by the Plaintiffon March 13, 1999 allegedly as a result of a trip and fall on premises of a business located at 520 East North Street, Carlisle, Cumberland County, Pennsylvania. 3. The Complaint was brought against Defendants on the basis that they were the owners and/or occupiers of the property at the time of the Plaintiffs fall, and thus had a duty to maintain the safe condition of that property. 4. Defendants have filed an Answer to PlaintiWs Complaint, denying that it had ownership or possession of the referenced premises at the time of this claimed loss. A tree and correct copy of Defendants' Answer to Plaintiff's Complaint is attached hereto as Exhibit "B". 5. Additional Defendants Rex D. Manweiler and Ralph W. Manweiler, t/a Manweiler and Manweiler are adult individuals with a business address of 520 East North Street, Carlisle, Cumberland County, Pennsylvania. 6. At the time of the claimed loss at issue herein, Additional Defendants were the record owners of the property located at 520 East North Street in Carlisle, Pennsylvania. This Deed was recorded in Book 147, Page 704. A tree and correct copy of the Deed dated October 15, 1996, transferring ownership of that property from Agway, Inc. to Additional Defendant is attached hereto as Exhibit "C". 7. Additional Defendants, as owners of the 520 East North Street property, leased a portion of this property to Agway, Inc. A tree and correct copy of this Lease Agreement, dated October 15, 1996, is attached hereto as Exhibit "D". 8. At all times relevant herein, Additional Defendants acted through their agents, servants, representatives and/or employees acting in the course and scope of their employment with Additional Defendants. COUNT I 9. Defendants incorporate herein by reference as though fully set forth at length the allegations of Defendants' Complaint against Additional Defendants. 10. If Plaintiff did sustain injuries as alleged, which allegations are specifically denied, then it is averred that said injuries were caused, not as a result of any negligence, carelessness or recklessness of Defendants, but rather solely and exclusively as a result of the any negligence, carelessness and recklessness of Additional Defendants. 11. The negligence, carelessness and recklessness of Additional Defendants consisted of the following: store. Failing to warn customers of an uneven entrance to the store; Failing to repair the uneven entrance to the store; Failing to provide a safe entrance to the store; and Failing to provide warning of the raised concrete at the entrance of the 12. Additional Defendants should therefore be held solely liable to the Plaintiff, jointly and severally liable to the Plaintiff, and/or liable over to Defendants on any judgement that may be entered in favor of Plaintiff and against Defendants. WHEREFORE, Defendants respectfully request that Additional Defendants be held solely liable to the Plaintiff, jointly and severally liable to the Plaintiff, and/or liable over to Defendants on any judgement that may be entered in favor of Plaintiff and against Defendants. COUNT II 13. Defendants incorporate herein by reference as though fully set forth at length the allegations of Defendants' Complaint against Additional Defendants. 14. To the extent that Plaintiff did sustain injuries as alleged, which allegations are specifically denied, then said injuries were caused, not as a result of any negligence, carelessness or recklessness of Defendants, but rather solely and exclusively as a resuli of the any negligence, carelessness and recklessness of Additional Defendants. 15. Paragraph 11 of the Lease Agreement entered into between Additional Defendants as Lessor and Agway, Inc. as Lessee provides, in part, as follows: The Lessor shall assume responsibility and hold the Lessee harmless and defend and indemnify the Lessee from all liabilities, losses (including claims for injuries to employees of the Lessee or of the Lessor), expenses, attorneys fees, damages, claims and judgments arising from or growing out of the actionable acts or omissions of the Lessor, its agents or employees, solely or in conjunction with a third person. 16. Defendants are informed, believe and therefore aver that the alleged injuries claimed to have been sustained by the Plaintiff arose from and/or grew out of the actionable acts or omissions of Additional Defendants, its agents or employees. 17. Under the terms of the Lease Agreement, therefore, Additional Defendants are responsible to hold Defendants harmless and defend and indemnify Defendants from any claimed losses herein. 18. Additional Defendants should therefore be held solely liable to the Plaintiff, jointly and severally liable to the Plaintiff, and/or liable over to Defendants on any judgement that may be entered in favor of Plaintiff and against Defendants. WHEREFORE, Defendants respectfully request that Additional Defendants be held solely liable to the Plaintiff, jointly mad severally liable to the Plaintiff, and/or liable over to Defendants on any judgement that may be entered in favor of Plaintiff and against Defendants. BINGAMAN, HESS, COBLENTZ & BELL, P.C. Harry D.~, Esquire Attorney for Defendants 10190-30 VERIFICATION I, Wesley Anderson, state that I am a representative of the Defendants, Agway Petroleum Corporation and Agway Energy Products, LLC, in the within action and that the facts set forth in the foregoing Defendants' Complaint Against Additional Defendants are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unswom falsification to authorities. Dated: BINGAMAN, HESS, COBLENTZ & BELL, P.C. BY: HARRY D. McMUNIGAL, ESQUIRE IDENTIFICATION NO. 38386 TREEVIEW CORPORATE CENTER 2 MERIDIAN BLVD., SUITE 100 WYOMISSING, PA 19610 (610) 374-8377 (610) 376-3105 (Fax) ATTORNEY FOR DEFENDANTS AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC CYNTHIA L. MYERS AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC V. REX D. MANWEILER and RALPH W. MANWEILER, individually, and t/a MANWEILER and MANWEILER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 01-1424 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Harry D. McMunigal, Esquire, hereby certify that a true and correct copy of the foregoing Defendants' Complaint Against Additional Defendants was mailed by United States first class mail, postage prepaid upon the following party(ies): Marcus A. McKnight, III, Esquire 60 West Pomfret Street Carlisle, PA 17013 DATE: Esquire CYNTHIA L. MYERS Plaintiff AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC, Defendants : IN ~ COURT OF COMMON PLEAS : CUMBERLAND COUNTY', PENNSYLVANIA : NO. 01-1424 CIVIL ACTION - LAW NOTICE TO DEFEND 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, order and notice are served, by entering a written appearance persona/ly 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 thc case may proceed without you and a judgment may be entered against you by the court without further money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 : COPY FP, OM REC©RO 1-800-990-9108 .... :~ ~ ~l of ~d Cougar ~. ~. EXHIBIT A CYNTHIA L. MYERS Plaintiff Vo AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-1424 CIVIL ACTION - LAW COMPLAINT AND NOW, this 4th day of February 2002 comes the plaintiff, CYNTHIA L. MYERS, by and through her attorneys, Irwin, McKnight & Hughes, and makes the following Complaint against the defendants, AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC, as follows: The plaintiffis Cynthia L. Myers, an adult individual residing at 33 South High Street, #1, Newville, Pennsylvania, 17241 The defendant, Agway Petroleum Corporation, has a mailing address of 333 Butternut Drive, P. O. Box 1333, Syracuse, New York, 13201 The defendant, Agway Energy Products, LLC, has a mailing address c/o CT Corporation Systems, 1515 Market Street, Ste. 1210, Philadelphia, Pennsylvania 19102. 3 On March 13, 1999, the plaintiff, Cynthia L. Myers, went to the business location of Agway as a business invitee at the location of the business being 520 East North Street, Carlisle, Pennsylvania 17013. The property was legally is owned by defendant on the date of plaintiffs injmy a copy of the Deed as attached hereto and made a part of this Complaint. On March 13, 1999, the plaintiff, Cynthia L. Myers, went to said business location at 520 East North Street, Carlisle, Pennsylvania 17013. As the plaintiff, Cynthia L. Myers, approached the entrance to said business, the toe of her shoe caught on an elevation in the cement. She fell forward directly in front of the glass entrance doors at the front of the business hitting her face on the concrete. The plaintiff, Cynthia L. Myers, was treated in the emergency room of the Carlisle Hospital, Carlisle, Pennsylvania 17013. o The plaintiff sustained bruising injuries to her left eye and a severe gash above her left eye which required stitches. The plaintiffs glasses were smashed in the fall. 4 I0. As a result of the fall, the plaintiff, Cynthia L. Myers, has sustained damages consisting of her lost wages and medical expenses. 11. The plaintiff also sustained injuries causing significant pain and suffering and seeks damages for pain and suffering as well as damages for any permanent injuries. CYNTHIA L. MYERS AGWAY PETROLEUM CORPORATION 12. The averments of fact contained in paragraphs one (I) through eleven (11) are hereby incorporated by reference and are made a part of this Count. 13. The defendant, Agway Petroleum Corporation, was responsible for providing a safe entrance to the store. 13. The defendant was negligent in that it failed to do the following: To warn customers of an uneven entrance to the store. To repair the uneven entrance to the store. To provide a safe entrance to the store. To provide warning of the raised concrete at the entrance of the store. 5 14. The negligence of the defendant, Agway Petroleum Corporation, is the proximate cause of the injuries sustained by the plaintiff. THEREFORE, the plaintiff, Cynthia L. Myers, seek damages against the defendant, Agway Petroleum Corporation, less than Twenty-Five Thousand and no/100 ($25,000.00) Dollars together with the costs of this action and interest as permitted by law. CYNTHIA L. MYERS AGWAY ENERGY PRODUCTS, LLC. 15. The averments of fact contained in paragraphs one (1) through fourteen (14) are hereby incorporated by reference and are made a part of this Count. 16. The defendant, Agway Energy Products, LLC., was responsible for providing a safe entrance to their store. 17. The defendant was negligent in that it failed to do the following: ao To warn customers of an uneven entrance to the store. To repair the uneven entrance to the store. To provide a safe entrance to the store. To provide warning of the raised concrete at the entrance of the store. 18. The negligence of the defendant, Agway Energy Products, LLC., is the proximate cause of the injuries sustained by the plaintiff. THEREFORE, the plaintiff, Cynthia L. Myers, seek damages against the defendant, Agway Energy Products, LLC., less than Twenty-Five Thousand and no/100 ($25,000.00) Dollars together with the costs of this action and interest as permitted by law. Date: February 4, 2002 By: Respectfully submitted, IRWIN, MCKNIGHT & HUGHES . Marcus A. Mc~ ,~III, Esqun'e 60 West Pomfi'et Street Carlisle, Pennsylvania 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Attorney for plaintiff EXHIBIT A for a length of 624.90 feet, an arc length of 627.18 fec! toa point, and thence South 59 degrees 32 minutes West. still by land of The Pennsylvania Railroad Company in a line parallel with a~d distan{ 46 feet measured Northwestwardlyand at right angles B~ING the same tract of land conveyed to the Granter herein by Deed of The' Pennsylvania Railroad Company dated December 23, 1936, and recorded in Deed Look !'R", Volume 11. Page 336, less. however, a small triangular lot of ground and right of way conveyed THE WITHIN conveyance is subject to the conditions contained in the above recited ~'*'s~ °~ ~.hoo[ D;sf. Cumb. Co,. ?~ C~mb. Co.. Pa. o.~.~.~. ^~,i'74j.'° ~7~g.,2~ ~-,. ~ 727 8i¢ n enture, AND A~WAY PEtROLeUM CORPORATION, a New york corporation qualified to 80 business in Pennsylvania. whose address is 333 Butternut Drive. Dewitt. New York. {P.O. Box 1333, Syracuse. New York. 13Z01), GRANTEE WITNESSETH, th~t ~ s~id Carlisle Livestock Market~ Inc. 0 Grantor~ for and in eonsld~ration o~ th~ sum o! Fi£teenThousand .... ($15.000.00) - - Dollars. 726 VERIFICATION The foregoing Complaint is based upon information which has been gathered by counsel and myself in the preparation of this action. I have head the statements made in this document and they are tree and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unswom falsification to authorities. RS 6/ Date: February 4, 2002 7 CYNTHIA L. MYERS Plaintiff AGWAY PETROLEUM CORPORATION and AGWAYENERGYPRODUCTS, LLC, De~nda~s : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-1424 : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Complaint was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Harry D. McMunigal, Esq. Bingaman, Hess, Coblentz & Bell Treeview Corporate Center Suite 100, 2 Meridian Boulevard Wyomissing, PA 19610 Date: February 4, 2002 IRWIN, Mci(NIGHT & HUGHES By: 60 West Pomfr'et-gtr~t sqmre Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 BINGAMAN, HESS, COBLENTZ 8,: BELL, P.C. BY: HARRY D. McMUNIGAL, ESQUIRE IDENTIFICATION NO. 38386 TREEVIEW CORPORATE CENTER 2 MERIDIAN BLVD., SUITE 100 WYOMISSING, PA 19610 (610) 374-8377 (610) 376-3105 (Fax) ATTORNEY FOR DEFENDANTS AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA L. MYERS ¥, AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC CIVIL ACTION - LAW NO. 01-1424 JURY TRIAL DEMANDED 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 Answer and New Matter and Notice are served, by entering a wfitten 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 ajudgment may be entered against you by the court with only such further notice to you as may be required by law, for any money claimed in the Answer and New Matter or for any other claim or relief requested by the defendant. You may lose money or property or other fights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, OR IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHER~ YOU CAN GET LEGAL HELP. Court Administrator 4th Floor Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Telephone: 717-240-6200 EXHIBIT B BINGAMAN, HESS, COBLENTZ & BELL, P.C. BY: HARRY D. McMUN/GAL, ESQUIRE IDENTIFICATION NO. 38386 TREEVIEW CORPORATE CENTER 2 MERIDIAN BLVD., SUITE I00 WYOMISSING, PA 19610 (610) 374-8377 (610) 376-3105 (Fax) ATTORNEY FOR DEFENDANTS AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA L. MYERS : : AGWAY PETROLEUM CORPORATION and : AGWAY ENERGY PRODUCTS, LLC : CIVIL ACTION - LAW NO. 01-1424 JURY TRIAL DEMANDED DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFF' COMPLAINT 1. Denied. After reasonable investigation, answering Defendants are without information sufficient to form a belief as to the troth or accuracy of the averments of paragraph of I Plaintiff's Complaint and the same are accordingly denied. Specific proof thereof, if relevant, is demanded at trial. 2. Admitted. 3. Admitted. 4. It is specifically denied that answering Defendants operated a business at the stated address at any time relevant herein. It is further specifically denied that Plaintiff was ever a business invitee at property owned or operated by Answering Defendants at any relevant time herein. As to the remaining allegations of paragraph 4, after reasonable investigation, answering Defendants are without information sufficient to fom~ a belief as to their truth or accuracy, and the same are accordingly denied. Specific proof thereof, if relevant, is demanded at thai. 5. Denied. It is specifically denied that the referenced property was legally owned by either or both of the answering Defendants on the date of PlaintiWs injury. While it is admitted that what purports to be a deed to this property is attached to Plaintiff's Complaint, it is further averred that said deed does not establish that Answering Defendants, or either of them, owned said property at the time of the incident at issue herein. 6. Denied. After reasonable investigation, answering Defendants are without information sufficient to form a belief as to the truth or accuracy of the averments of paragraph 6 of PlaintiWs Complaint and the same are accordingly denied. Specific proof thereof, if relevant, is demanded at trial. By way of further answer, the allegations of paragraphs four and five of this Answer are incorporated herein by reference as though fully set forth at length. 7. Denied. After reasonable investigation, answering Defendants are without information sufficient to form a belief as to the truth or accuracy of the averments of paragraph 7 of Plaintiffs Complaint and the same are accordingly denied, Specific proof thereof, if relevant, is demanded at trial. By way of further answer, the allegations of paragraphs four and five of this Answer are incorporated herein by reference as though fully set forth at length. 8-9. Denied. After reasonable investigation, answering Defendants are without information sufficient to form a belief as to the truth or accuracy of the averments of paragraphs 8 and 9 of Plaintiff's Complaint and the same are accordingly denied. Specific proof thereof, if relevant, is demanded at trial. 10. Denied. The allegations of paragraph 10 constitute conclusions of law to which no response is required, To the extent that responsive pleading is required, after reasonable investigation, answering Defendants are without information sufficient to foma a belief as to the truth or accuracy of these allegations, and the same are accordingly denied. Specific proof thereof, if relevant, is demanded at trial. I 1. The allegations of paragraph 11 are deemed denied pursuant to Pa.R.C.P. 1029. CYNTHIA L. MYERS v. AGWAY PETROLEUM CORPORATION 12. Answering Defendants incorporate herein by reference as though fully set forth at length paragraphs 1 through 11 of their Answer. 13-14. The allegations of paragraphs 13 and 14 are deemed denied pursuant to Pa.R.C.P. 1029. By way of further answer, the allegations of paragraphs four and five of this Answer are incorporated heroin by reference as though fully set forth at length, WHEREFORE, answering Defendants respectfully request that Plaintiff's Complaint be dismissed with prejudice and costs. CYNTHIA L. MYERS v. AGWAY ENERGY PRODUCTS, LLC, 15. Answering Defendants incorporate herein by reference as though fully set forth at length paragraphs 1 through of its Answer. 16-18. The allegations of paragraphs 16 through 18 are deemed denied pursuant to Pa.R.C.P, 1029, By way of further answer, the allegations of paragraphs four and five of this Answer are incorporated herein by reference as though fully set forth at length. WHEREFORE, answering Defendants respectfully request that Plaintiff's Complaint be dismissed with prejudice and costs. 19. NEW MATTER Plaintiff's Complaint fails to state a claim upon which relief may be granted. 20. Plaintiff's claims, if any, may be barred by the applicable statute of limitations. 21. Plaintiff's claims, if any, may be barred and/or substantially reduced by the doctrines of assumption of the risk, contributory negligence and/or comparative negligence. 22. To the extent that Plaintiff did sustain injuries as alleged, which allegations are specifically denied, then said injuries were caused by individuals other than answering Defendants and over whom answering Defendants had no control and/or by circumstances beyond answering Defendants' control. 23. No dangerous or defective condition existed at any relevant time herein on the referenced property. 24. If any such dangerous or defective condition did exist, then said condition was open and obvious to any individual exercising reasonable care for his or her own safety. WHEREFORE, answering Defendants respectfully request that PlaintifFs Complaint be dismissed with prejudice and costs. BINGAMAN, HESS, COBLENTZ & BELL, P.C. Harry ~ire Attorney for Defendants 10190-30 VERIFICATION I, Wesley Anderson, state that I am a representative of the Defendants, Agway Petroleum Corporation and Agway Energy Products, LLC., in the within action and that the facts set forth in the foregoing Defendant's ga~swer with New Matter to Plaintiffs Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unswom falsification to authorities. Dated: BINGAMAN, HESS, COBLENTZ & BELL, P.C! BY: HARRY D. McMUNIGAL, ESQUIRE IDENTIFICATION NO. 38386 TREEVIEW CORPORATE CENTER 2 MERIDIAN BLVD., SUITE 100 WYOMISSING, PA 19610 (610) 374-8377 (610) 376-3105 (Fax) ATTORNEY FOR DEFENDANTS AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CYNTHIA L. MYERS CIVIL ACTION - LAW AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC NO. 01-1424 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Harry D. McMunigal, Esquire. hereby certify that a tree and correct copy of the foregoing Defendant's Answer with New Matter to Plaintiff's Complaint was mailed by United States first class mail, postage prepaid upon the following party(les): Marcus A. McKnight, III, Esquire 60 West Pomfret Street Carlisle, PA 17013 DATE: g , sq re 15:14 ~31~ 449 ?362 ~011/020 &GI~.EEI~_.I~ nde es 0f t~xe /~'~e'dey o£ OCtOPi, ~996~ B~ ~ and ~ a ~n~ral pa~e~s~lp, A~AY, ~NC. ~/a ~ow ~I~S~, 31~0 Stoney Po~t Reed, E. Berlin, pe~sylv~la 17~16, 4741, S~a=~e, Ne~ Yor~ 13221, Attentioni coordinator ("~se~~ Or "Tenant ~S~, ~ ~e ~s~or ~a~ a~e~ to ~, and her~y doe~ T~ fr~ ~e ~ssor ~e foll~g praises, viz: Being a 0.34~ acre (15,000i sq. ft.) piece of la,id with a 1,500~ sq. ft. building a~ld 1,875± sq. f~. building a~ea as shown on attached ~xhibit 1. U~il To be used end occupied by Tenant for the following usu and purpeees: Fer~ilizer operation and storage, a~d a~y other law~ul purpose. 3. TEltll: Wlth ~he privileges and appurtenances for and during ~e =erm commencing as o£the dat~ of the closi~ of convey~ce by ~sse~ to ~ssor of ~e pro~y looat~ ~rough of Carlisle, co~y o~ ~1~ and Sta~ of ~sylvanta as sh~ on ~tta~ed ~b~t "A" between ~e Seller, A~ay, In=-, and ~e ~aee (~e ~C~o~ent Date') and continuing ~11 ~c~er 31, 1999, ~d ~r~r shall aut~i~11y b* r~n~sd on a y~ar to y~basis ~n~e~s or on~ of ~0 p~ie~ ~ha~l give a~ leas= one h~ed ~w~ty ~ays prior ~l~C~ noti~ =o ~e o~r of its intention ~o resinate ~e ~ase at ~e end of ~e ~e~ ~rrent ~e~. 4. RENT: AND the Lessee covenants t~at ~he Lessee shall pay to ~he Lessor ~or the uso of seed premlse~ the a~ual rent o~ ~*e ~ou~d ~11ars ($3,000) In ~1 ~ly installments adv~=e in ~e ~o~t of ~o ~r~ Fifty Dollars ($250.00) for ($275.00 p~r mon~) for ~e second lea~e y~r; ~d ~ee Thousand Slx ~ed Thi~y ~11a~ (~02.50 pe~ mon~) for ~e EXHIBIT C' 03/01/02 15:14 '~'315 ~49 7382 ~012/020 -2- 5. DEFAULTs AI~D PROVIDED FURTHER, if ~he Lessee fails pay said rent when it becomes due or o~e~lse breaches ~ase, it is agreed ~at ~1~ ~ee ~hall ~e~tna~e at ~e days~ ~ttt~ notice of intention ~o ~e~lna~e an~ shall set fo~ in ~id notice ~e speclf~c brea~ of l~se and ~ssor~s int~ ~o te~t~e ~he ~ase 1~ such br~ ~ contlnu~d. After ~e e~lra~ion of sa~d five {5) da~s~ notice, ~ts ~ase ~all be ~td, pr~td~ ~e ~see is ~e~ ~ default r~ting ~ complatn~ of ~enan~ or a~ee~ent, ~ ~e ~sor shall ~titl~ to ~e ~asmssion of ~e demised Lessor's said notice shall be sent to Lessee by cer~ified mall return receipt requested at thm ad,tess stated hereinabove, Attention: Real Estate Department. 6. ~8~ The Lessee agrees to pay 15% of a11 real estate taxes paid by Lessor for entire proper~y (including that portion o~oupled by Lessor) up to a ~aximum ann~tal pa~ent by Lessee of Twelve ~undred Doll~r$ ($1200.00). ~ay~ent shall be made within thirty (30) days of L~ssee~s re=eipt of bill f~"~ Lessor. 7. UTZL~TZB$~ The Lessee agrees to pay all utillties used in con~ection wi~h the leased pruises during the term of this Lease if applicable. 8. XNSOP2~$ During ~he term of this Lease, Lessee shall provide the ~nsurance listed in th~s section. Such Insurance shall be ~roVided w~th an insurer ~hat is licensed to do business Be~t's rating of A or better. ]C~ND OF ~NSURANC~ ~T~TTS OF LTABI¥,TTY I.(a) Work, rs' Co~ansat~on Statutory Coverag~ Cb) Employers' Liability $100,000 II. comprehensive General Liabilit~ to include the following coverage A. Pre~ise~ and Operations B. Owner and Contractor Pro~ective Liab~lity C. Contractual L~ability BOdily Injury and Personal Injury Limits. of Liability to be $1,000,000 per l~rson and $1,000,000 per ~To~r~y Damage Limits of Liability to be $500~000 per occurrence, $500,000 annual 03/Ol/OZ 15:14 449 7362 [;~013/020 -3- Comprehensive Automobile Liability to include all owned and non-owned auto- BOdily Injury L/mits of ~iability to be $500,000 par parson and $1,000,000 per of Liability to be $250,000 per Certifica~ea of such excess insurance shall be to Lessor upon re¢l~est of Lessor prior to ~he co~aen¢~n~ of the ~erm. Said csr~iflcetes shall con, sin provisio~ i~ranoe ~ier p~ld~ su~ Coverage ~11 r~er 30 days' ~l~ notl~ to ~s~or prior ~ ~e c~cella~lon or ~ange ~ereof. ~GGor ~11 pay ~e bill in come.ion i~ur~e on ~e pr~ses m~ b~11 ~ssee 15% of total ~ns~ce bill ~o~ ~ ~ea $~0~.~ ~er year. In ~he avant Lessee fails to mee~ ~he terms and conditions set forth above, Lessor may cause polic£es of such insurance to be issued an~ bills for the Dremi~ms thereof shall be rendered elect, and said b~lls s~l&ll be due from end payable by Lessee when rendered and the amo~mt thereof shall be be, and pe~d by the Lessee as addie~onal rent. 9. MUTUAL ~Um~R OP XN$O~D ~l~B~D8: Landlord and Tenan= hereby mutually ~laaae and discharge each other from all claims and liabilities for damage to, or 1oas =o, real and personal p~oper~y arising from or caused by any hazard which is o~vered by "all ris~" ir~urancs aa defined by t~e la,est Insurance Servioe~ O{fice fo~, or a s~llar fo~ filed ~ or on behalf of a ~on-m~er company, r~ardle~ of ~e ~use of su~ d~ge or lOGS. 10. QUIET ~OY~ENT~ Upon Tenant paying the above speci- fied rental an~ p~rform~ng and complying with all the tex~s, conditions and covenants aforesaid, Tenallt shall and may peacefully have, hold and enjoy the premises for ~hs term aforesaid. 11. ZND~I~I~TIONt The Lassos shall assume rasponsibil- icy for and hold Lessor harmless an~ defend and ind~mnif~ the L~ssor from all 1labilities, losses (including clai~m for injuries to employee~ of the Lessee or %he Lessor}, expenses, a~torneys fees, damages, claims and Judgments arising from or growing out Of ~e actionable acts or omissions of the Lessee, 03/01/02 15:1~ ~'815 449 7362 R B ~ ~014/020 person, when incidental ~o ~ssee's ~ln~a~ce and use of th~ d~is~d premises. The ~sor shall as~s respons~ili~ a~ hold ~e ha~less and defend a~d inquiry ~e ~ssee from all ties. losses (i~cludinq clai~ ~or injuries ~o ~-~loyees of the ~ssae or of the ~ssor), e~ns~, at~o~eys fees, d~ges, cla~s and jud~en~ arising ~rom or gr~lng ou~ Of ~e action- ~le a~s or omissions ~f ~e ~ssor~ i~ agents or ~ployees, solely or in conJ~lon wi~h a ~ird p~on. The pa~ies hereto shall e~ally ~ar all losses (~clud- lng clai~ for ~Juri~ to ~loyees of ~e ~ss~ or ~ssor), e~ses, a~to~eys fe~, ~g~s, clal~ and Ju~g- ~en=s arie~g ~rom or ~ow~g ou~ of ~e joint or con~g aotion~le a~s or o~issions of ~ ~le~ here2o, respective agents or 12. T~T~= ~s~or covsnan~s ~t ~ssor is vel1 seiz~ of ~e d~ised pre~ts~s, ~s go~ right to l~e ~ ~ her~y warran=s and agrees to d~fend ~e title ~ereto ~ to burse and Bold ~sea ha~ess from any loss by r~son of any deEeo= In ~e ~itle. ~ssor agrees to n~l~ ~ssee upon any defaul= ~ pa~ent of ~gage intere~ or pr~i~l, or in pa~en~ of ~xes or o~ lie~ u~n ~ praises an~ ~ssee shall have ~e right ~o m~e su~ defaulted pa~ts for ~e a=co~t of ~ssor. ~y ~--~ so adv~d by ~ssee~ any suit a~d pro~e~lng l~ righ~ herein ~ed, shall interest at ~e ra~ of L2t ~r ~n~, ~d ~e r~ p~ided ~or herein ~y be appli~ ~o ~e ~t of su~ ~ ~d in~ereSt, or ~ssee ~y re~ire ~ssor to ~y ~y ~paid bal~ce. Shoul~ ~e te~ ol ~is ~ase or any r~al ~ provided for herein e~lre before SU~ S~ wi~ in~st bee~ fully repaid ~o ~ssee, ~ss~ ~y, at its Option, ua to ~py sai~ praises on ~e te~ and =on~ltio~ ~rein p=ovided ~eil su~ s~s wi~ interes~ have been fully re~id. 13. D~Bfl ~ DBS~U~IONs In ~e ~e premis~ are ~ged by fire or o~er similar or diss~llar cas~lty, ~t shall ~ediat~ly give notice ~ereof to ~n~lo~ who s~all ~oreupon cause su~ d~ge to ~ repairS, but if ~e pr~isos be so ~g~ as to h wholly ~ant~le, ~e t~ ~all cease and ~e r~ shall be adJ~ pro ra~a as o~ ~e ~te of such da~g~ in case such ~ge to ~e premises shall ~ only pa~ial ~d a reason~l~ potion ~ereof shall d~ing period of repairs be fi~ for oc~ncy by Tenant for pu~oee for which saia premises ~e leased, ~hen th, ren~ s~all 03/01/02 15:15 9315 449 7362 R E Q ~016/020 -5- be equit:ably appor~c.~.oned a~d paid for the pa~ so fit for appo~ionm~n~, ~ ~em ~1~ have ~he righ~ ~o i~edia~ely resinate ~i~ ~asm b~ g~vlng ~s~or ~i~ten no, ice of ~- 14. ~Ep&~: Lessee shall, a~ L~ssae~s expense, w4th due diligence, make all repair~ and replacements, structural and otherwise, necessary =o keep in good order a~d repair ~hm interior and exterior of the demised premise= and the interior and exterior of ~he b~/ld~ng, .xcept in oa~s o£ damage from ~he act or negligence of Lessor, i~ agents Or employees. 15. EN~&~E~L P~OVXSIONS: (a) Tenant's covenant. The Tena~ shall ~t br~, keep or ~t ~o be brou~ ksp~ ~ or on ~e D~is~ ~es ~y ~l~le, e~los~e o~er danger,s ~erials ~ especially incIud~ng, wi~ou~ lim~tation, ~y ~mr~al~ eh~t are r~late~ as ~ha~a~ ~der any Env~en~al ~w, (as herein~f~r deC,ned) p~e~, howler, ~at ~e ~t ~y pe~t any su~ ~t~ials to keDt on ~e Dem~se~ ~e~ so long as ~e s~e ar~ kept stored and di~ of in acoo~ance wi~ all appll~ble 'Env~ro~ntal ~ws'. ~e T~t shal~ not a11~ a 1~ to imposed on the ~ Pr~ses pursuit to any applic~le Enviro~e~tal ~. (b) Not~oos. notice of: In the event that ~he Tenant receives any (1) ~he happening of any event involvlng the discharge or =lean up any hazardous or toxic ~s~e CT ~terial, includi~ any pet~e~ pr~uct, on or abou~ ~e Pries a~ a re~ul~ of Te~nt's op~ions 2) any c~la~n~, order, citation or not,ce rega~ to air ~4ssions, water dis~a~, Law (an ~Environmental complaint') as a result of Tenant,s operations ~rom any parson or ~ntity, lnclud=ng withou= limitation, the Peru~ylvanla Department of ~viror~ental Protection ('DE~), the Un,ted S~ates Environmental Pro,motion Agency ('EPA'), or ~he United $~ate~ Army co~ps of Enqineers (the 'Corps'), then the Tenant ~hall immediately give written notice th~rso£ to the Landlord. and shall promptly comply wi~/1 Tenant's obligations under law with regard ~o such Hazardous Discharge 03/01/02 15:15 "~'315 449 7362 016/020 -6- or ~.nvironmental oomplatnt. Pro~ided, however, that nothing herein ~1all preclude its (c) Definition. As used herein the term 'Environmental Law' *shall mean any federal, state or local Zaw, rule, regulation, ordinance, or order, relating to ~he protection of ~he environment, including the presence or discharge of hazardou~ or toxic substances. 16. ENVIRO~L B~Sm n~. (a)P~lor to ~ co~n~ date of ~1s ~e, ~se~, A~ay, Inc., ~11 have Co~u~ed a~ initial env~ro~n~al sL~e asses~ent (~e 'P~se I ~ses~ent') o~ ~e entire prope~y conve~ed ~ ~see ~o asce~aln whe~ a~ to ~ e~ent ~er~ exists on ~e define) prior to ~e C~o~t Date of ~t~ ~ase. (b) Notwithstanding anything in the contrary In ~his Lease, Lessee shall ~avm no obligation under ~l~ts lea~e until Lessee shall have received and, in Lessee's mole discretion, approved the rapor~ of the Phase ! Assessment. (c) The results of the Phase I Assessment shall be the base line ~nd shall ~e binding upon the Landlord and thm Ten,nC as to the existence and concentration of the Product as at the Commencement Date. (d) In order to ascertain whether and in what concentration, at t~e t~rminat£on of the Lease there exis~ any Hazardous Products whic~ arose during the ceurse of the Term of this Lease, Tenant aha11 engage at Tenant's expense the services of an environmental consultant as Landlord an~ Tenan~ shall agree upon (the "Lea~e Termination Enviror~en~al Cousulta~t") to perform a ~eass Termination ~nviron~elltal Assessment (wLT~A") of the Pre~is~s. Such LTEA shall consist solely of: (1) a physical inspection of the Premises including but not limited tO sampling and testing from ~e groundwater monitoring wells that will be allowed ~o remain on the premises during ~he term of the Lease and until the LTEA has bee~ performed; (2) such Ot~er tests and inspection procedures as ~he Lease Termination Environmental Consultant deems reasonably necessary under the circumstances; and 03/01/02 15:15 "~315 449 7362 R E ~ ~017/020 (3) the preparation of a wr~22en repo~C to Landlord and Tenant. is here~ agreed the2, in add/rios ~o ~lle tnde~ific=~£on prov£aions in this lease: (a) L~esor ~hall be responsible for that portion of any and all ~Remedtal CoSts· (as hereinafter defined) resulting from any release Or discharge by Lessor Of any Hazar~oU~ S~bs~ance (am hereinafter ds£X~ed) on L~ssee shall be responsible for that portion of any and all Remedial Costs res~lt£ng from any release or disoharge by Le~sea of any Hazardous S~s~nce on the (c) As used herein, the term #R~edial Costs" means any cos~ tn=urrsd in connection wl~h any Investigation or monitoring of s~e co~i~io~ or ~y ol~Up, r~edial, r~oval, o= restoration work re~T~ by any ~ederal, state, or local g~e~ental agen~ or politi~l s~ivision. (d) As used herein, ~he ter~ "Hazardous Substances~ shall or defined as being ha=ardous, toxic or dangerous which ~s Or beoome~ regulates by any looal governmental suthor£ty, the State o= pennsylvania, or the United S=ats~ of America, and any petrole~ products. 18. SURRenDER; T~e ~assee ;ovsnants tha~ at the ex, ira- tion of said term the Lessee shall surrender up said premises ~o ~he L~ssor i~ as good condition as now, necessary wear and damage by the elements excepted. 19. ~X~HT TO BUBLB~SB: Tenant shall not assign this Lease or su~leC the whole or any per~ of ~e leased praises wi~out ob~atni~ ~ndlo~'s oons~t ~1~ co~t shall not be unreason~ly wt~ald. No suoh s~lettlng by ~e Te~nt s~ll relieve ~e T~ant of ~y obligation to p~fo~ all of ~e ~e~s of ~ls ~ase. 20. ~X~DZN~ ~t~"~': This L~asa shall be binding upon end enure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, assigns a~d legal 03/01/02 15:16 '~315 449 7302 R g ~ ~018/020 21. Te~nt shall De respons~le et Tenant's expense, for all main~enance of g~ounds, parking areas, drivew&ys, and si~ew&lk~ on the lease~ premises, and also £or all ~ow removal on the lease~ praises. IN WITNF~S WHEP~OF, 'cAe parties have duly executed this Lease the day and year first above written. LESSEZ :~~ANDGROW (Title) 03/01/02 15:16 449 7362 REQ ~]019/020 -9- STATE OF I~L ) · -- r,..t,,,~,%U~"t~t'' I §! ss.: CO~ OF on ~ht, ~a~ of , , 1996, before pe~o~lly O~e ~X D. ~Ir.~ ~d ~ W. ~erson~lly ~ ~o me to be a m~ber of ~e pa~e~hip of me to be ~he person Ma~WS~.L~R and HANWE~ and to known descrlb~d in and ~o pa~er~ht~ of ~I~ ~ ~I~. and h~ E~e u ~e a~ a~ de~ of said pa=tner~h£p for ~e use~ and pu~oses therein ~nC~o~. / ~ALI~L~ ~0~0. CU~ND CO..PA STAT~ OF N~W YORK COUNTy OF ONONDAGA p_. ~n .~h.~L~~ d.y of ~ , 1996, before me cam. AO. JL~A/../), ~.~.,,fi¢~o to · '~Z~, ~e co~o~C~on d~cr~d ~ and w~l~ exerted ~e for~o~nq tn~t; ~at he co~ra~e eeal~ ~a~ ~= ~s so affixea by o~er of ~e ~oard of ~ereeo by l~e o~r. 03/01/02 1S:15 ~31~ ~49 7362 ~020/020 .Bo~oucj, h of C:a-~llsll Cumberland County, PA -~ast North Street LR 21066 55' To 62" Varying R/W Width (FormeHy Poor House Rood) Agway Inc. Deed Book B-36, Page ,505 L lot Ac. 03/01./02 IS:12 '{{"316 449 7362 R E Q ~003/020 T~IS DEED is made the 15th day of October, 1996, SETWEEN AGN~%Y, INC., a Delaware corporation AND ~x D. F~%i~W~IL~K and ~ALPH w. MANWEILER, Co-Partners trading as Manweiler and Manweiler ("Grantees"): W X TNE S SETH That the Grantor in consideration of Two Hundred Forty Thousand and 00/100 Dollars ($240,000.00) paid by the Grantees to the Orantor, the receipt whereof is hereby acknowledged, doe~ hereby grant and convey unto the Grantees: ALL THAT CERTAIN tract or parcel of land situate in the Borough of Carlisle, Cumberland County, Pennsylvania, bounded and descr£bed as follows: BEGINNING at a point in the center line of East North Street ex~:ension (Poor House Road) said point being located 26.35 feet from a point measured at right angles and ~0 feet from the ~enter line of the Philadelphia Cumberland Branch Main Track and the center line of the East North Street Extension; thence South 30 degrees 28 minutes East along the southerly line of the Agway Petroleum Corp. 365.85 feet to a point on the Penn. Central Railroad westerly right of way line; thence South 59 degrees 32 minutes West along said right of way line 280 feet to a point; thence North 30 degrees 28 minutes West along the northerly line of the Carlisle Cement Products Co. 371.56 feet to a point in the center line of the East North Street Extension; thence North 60 degrees 37 minutes 22 seconds ~ast along said centerllne 280.00 feet to the point of BEGI~NING. CONTAINING 2.3 acres, more or less. ~ ~/01/02 1~:12 '~315 449 7362 R N ~ ~004/020 SUBJECT TO any and all conditions, covenants, easements and restrictions of record. TOGETHER with all appurtenances thereunto belonging. BEING the same premises which Butler County Industrial Development Authority by its deed dated Nove~aber 23, 1992 and recorded in the Office of the Recorder of Deeds in and for Cumberland County in Deed Book B, Volume 36, Page 505, gr~nted and conveyed unto A~wey, Inc., ~rantor herein. UNDER AND SUBJECT, NE~THELESS, to the restriction %hat the property described herein shall not be used for the sale, storage or distribution of feed, seed, fertilizer, farm chemicals, farm supplies or petroleum products for a period of ten (10) years from the date hereof. No~withstanding the foregoing, the property may be used for operations of an A~way franchised representative pursuant to a writtenAgway Representative Agreement between Grantor and Grantee's Tenant, its successors a~d asei~s. Furthermore, Grantor agrees that the use restriction se~ forth in this paragraph shall be null and void ih the event Grantor files a petition in bar~krup%cy or terminates or refuses to renew the Agway Representative A~reement be=ween Grantor and Grantee's Tenant, its successors and assigns for any reason other than default by Grantee's Tenant, its successors and assigns under said Agway Representative Agreement. UNDER AND SUBJECT, NEVERTHELESS, to a right of first refusal in favor of Grantor until October 15, 2006, or until such later date as may be evidenced by one or more memoranda extending such right of first refusal, which memoranda shall be recorded in the Office of the Recorder of Deeds in and for cumberland County, Pennsylvania. Grantor hereby cqvenents and agrees that Grantor will warrant SPECIALLY the property hereby conveyed. 0~/01/02 15:12 '~315 449 7362 R E ~ ~005/020 IN WITNESS W~EREoF, the Grantor has caused this Deed to be duly executed as of the day and year first w~itten above. ATTEST: Title: A~siseant S~r/etary (COP. PORATR SF~AL) GRANTOR: AG"WAY, INC. Title: Assistant Secretary - 3 - . 03/01/02 15:1~ '~'315 449 7362 R E Q ~006/020 STATE OF NEW YORK COUNTY OF ONONDAGA On this, the 15th day of October, 1996, before me, a Notary ~ublic, the undersigned o~ficer, personally appeared David M. Menap=ce who acknowledged ~%mself =o be the Assistant Seoretaryof A~WAY, INC., a corporation, and that he as such o~ficer, being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of the corporation by h%mself as such officer. IN wITNESs WHEREOF, I have hereunto sec my hand and official seal. My Commission Expires: Notary Public 10/31/97 (SEAL) 0~/01/02 15:13 '~315 449 7362 RE~ [~007/020 ~ERTIFICATION OF ADDRESS I hereby c~rtify that the precise busines~ addres~ of the Orantees herein is: Attorney or Agent for Grantees CO~ONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS: RECORDED in the Office of the Recorder of Deeds in and for said County in D~ed Book ~, Vol.., ., Page WITNESS my hand and official seal this day of ~, 1996. Recorder of Deeds SHERIFF'S RETURN - REGULAR CASE NO: 2001-01424 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUNBERLAND MYERS CYNTHIA L VS AGWAY PETROLEUM CORP ET AL HAROLD WEARY , Cumberland County, Pennsylvania, says, the within WRIT OF SUMMONS was served upon MANWEILER REX D ADD'TL DEFEND , at 0935:00 HOURS, at 520 EAST NORTH STREET CARLISLE, PA 17013 by handing to P~ALPH W. MANWEILER a true and attested copy of WRIT OF SUMMONS Sheriff or Deputy Sheriff of who being duly sworn according to law, on the 26th day of March the , 2002 together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 31.45 Sworn and Subscribed to before me this ~/ ~ day of ~gm~ A.D. Prothonotary So Answers: R. Thomas Kline 03/27/2002 BINGAMAN HESS COBLENTZ BELL By: Deputy She~if f SHERIFF'S RETURN - REGULAR CASE NO: 2001-01424 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MYERS CYNTHIA L VS AGWAY PETROLEUM CORP ET AL HAROLD WEARY Cumberland County, Pennsylvania, says, the within WRIT OF SUMMONS MANWEILER RALPH W ADD~TL DEFEND , at 0935:00 HOURS, at 520 EAST NORTH STREET CARLISLE, PA 17013 RALPH W. MANWEILER a true and attested copy of WRIT OF SUMMONS Sheriff or Deputy Sheriff of who being duly sworn according to was served upon on the 26th day of March by handing to law, the , 2002 together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this ~ day of thonotary ' So Answers: R. Thomas Kline 03/27/2002 BINGAMAN HESS COBLENTZ BELL By: Deputy Sher~f SHERIFF' S RETURN - CASE NO: 2001-01424 P COMMONWEALTH OF PEN/qSYLVANIA: COUNTY OF CUMBERI~AND MYERS CYNTHIA L VS AGWAY PETROLEUM CORP ET AL REGULAR HAROLD WEARY Cumberland County, Pennsylvania, Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon on the 26th day. of March the by handing to together with says, the within WRIT OF SUMMONS NLANWEILER A_ND M3~NWEILER ADD'TL DEFEND , at 0935:00 HOURS, at 520 EAST NORTH STREET CARLISLE, PA 17013 P~ALPH W. MANWEILER a true and attested copy of WRIT OF SUMMONS 2002 and at the same time directing His attention to the contengs thereof. Sheriff's Costs: So Answers: Docketing 6.00 ~~~~ Service ,00 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 16.00 03/27/2002 BING~2W3~NHESS COBLENTZ BELL Sworn and Subscribed to before me this ~/~ day of ' 'Prothonotary By: Deputy Sheri/f f Stephen E. Geduldig, Esquire Attorney LO. No. 43530 THOMAS, THOMAS & HAFER, LLP Post Office Box 999 Harrisburg, Pennsylvania 17108-0999 (717) 237-7100 E-uail: seg@tthlaw.com Attorneys for Defendant: REX D, MANWEILER and RALPH W. MANWEILER, Individually and t/a MANWEILER and MANWEILER CYNTHIA L. MYERS, : Plaintiff : AGWAY PETROLEUM CORPORATION : and AGWAY ENERGY PRODUCTS, LLC: Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -- LAW NO. 01-1424 REX D. MANWEILER and RALPH W. MANWEILER, : Individually, and t/a : MANWEILER and MANWEILER, : Additional Defendants : JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Stephen E. Geduldig, Esquire, and Thomas, Thomas & Hafer, LLP, as attorneys for Additional Defendants, Rex D. Manweiler and Ralph W. Manweiler, Individually, and t/a Manweiler and Manweiler, in the above- captioned matter, reserving our right to answer or otherwise plead to Defendant's joinder Complaint. Respectfully submitted, :165349. By: THOMAS, THOMAS & HAFER, LLP STEPHEN E. GEDULDIG, ESQUIRE Attorney I.D. NO. 43530 Attorneys for Additional Defendant, REX D. MANWEILER and RALPH W. MANWEILER, Individually and t/aMANWEILER and MANWEILER CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on the ~ day of April, 2002, on all counsel of record as follows: Marcus A. McKnight, III, Esquire 60 West Pomfret Street Carlisle, Pennsylvania 17013 Attorneys for Plaintiff Harry D. McMunigal, Esquire BINGAF~a.N, HESS, COBLEI~TZ & BELL Treeview Corporate Center Two Meridian Boulevard Suite 100 Wyomissing, Pennsylvania 19610 Attorneys for Defendants, Agway Petroleum Corporation and Agway Energy Products, LLC :165351.1 THOMAS, THOMAS & F~AFER, LLP Stephen E. ig, CYNTHIA L. MYERS Plaintiff AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-1424 CIVIL ACTION - LAW PRAECIPE TO SETTLE AND DISCONTINUE To Curtis R. Long, Prothonotary: Please mark the above-captioned case settled and discontinued and issue a Settlement Certificate to Marcus A. McKnight, III, Esquire, at 60 West Pomfret Street, Carlisle, Pennsylvania 17013. By: Respectfully submitted, IRWIN, Mc~HT & HUGHES 60 West Pomfr~Street Carlisle, Pennsylvania 17013 (717) 249-2353 Date: '~ 13~ .~Og2, CYNTHIA L. MYERS Plaintiff AGWAY PETROLEUM CORPORATION and AGWAY ENERGY PRODUCTS, LLC, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-1424 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Praecipe to Settle and Discontinue was served upon the following by depositing a hue and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Elizabeth D. McMunigal, Esq. Bingaman, Hess, Coblentz & Bell Treeview Corporate Center Suite 100, 2 Meridian Boulevard Wyomissing, PA 19610 Carlisle, PA 17013 IRWIN, Mclf~GHT & HUGHES Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476