Loading...
HomeMy WebLinkAbout01-2241REALM R. R. AVENUE, LLP, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. pl - ?QYI Clio<< NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants 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 is 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 document 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. As provided by Pennsylvania Rules of Civil Procedure No. 1018. 1, the following officer is designated to be named in the Notice to Defend in order to find out where legal help can be obtained. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 REALM R. R. AVENUE, LLP, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. l91- 2 .Z i f C ux'i e,(? NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants CIVIL ACTION - LAW COMPLAINT AND NOW, comes Plaintiff, Realm R. R. Avenue, LLP, by and through its attorneys, Wix, Wenger & Weidner, and files this Complaint, stating the following in support: Count I 1. Plaintiff is a Pennsylvania Limited Liability Partnership whose business address is 1000 North Front Street, Suite 503, Wormleysburg, PA 17043. 2. Defendant, Norman Hoffer, is an adult individual whose current business or residence address is 1010 Sunset Avenue, Harrisburg, PA 17112. 3. Defendant, Matthew Hoffer, is an adult individual whose current business or residence address is 1010 Sunset Avenue, Harrisburg, PA 17112. 4. Defendant, 4660 Associates is a Pennsylvania general partnership whose current business address is 1010 Sunset Avenue, Harrisburg, PA 17112, and whose general partners are Norman Hoffer and Matthew Hoffer. 5. Jurisdiction is proper in this Court because the real estate that is the subject of this action is situate in Cumberland County and Plaintiff's cause of action arose in Cumberland County. 6. The amount in controversy does not exceed $25,000 as required by the local rules regarding compulsory arbitration. 7. Plaintiff is the owner of real estate located on the eastern side of Railroad Avenue in Shiremanstown, Cumberland County (herein, the "Realm Property"). 8. Defendants are the owners of real estate located at the corner of Trindle Road and Railroad Avenue in Shiremanstown, Cumberland County (herein, the "Hoffer Property"), having purchased it on or about September 13, 1999. 9. There is located on the Realm Property a pump house (herein, the "Pump House") that serves both the Realm Property and the Hoffer Property for fire suppression and related services. 10. On or about September 7, 1999, Plaintiff and Rite Aid Corporation (herein, "Rite Aid"), then the beneficial owner of the Hoffer Property, entered into a written agreement regarding the Pump House (herein, the "Agreement"). A true and correct copy of the Agreement is attached hereto as Exhibit A and is incorporated herein by reference. 11. Pursuant to the Agreement, Plaintiff was responsible for the costs of an annual inspection/maintenance contract maintained on the Pump House. 2 12. Paragraph 2 of the Agreement states: The expense of any non-routine maintenance or repairs (in excess of routine annual inspections pursuant to the above-referenced contract) or replacement (less proceeds of any casualty insurance) will be divided equally between [Plaintiff] and [Rite Aid]. 13. When Defendants purchased the Hoffer Property, they were aware of the existence of the Agreement. 14. Defendants purchased the Hoffer Property subject to the Agreement and succeeded to the rights and obligations of Rite Aid under and pursuant to the Agreement. 15. On or about April 24, 2000, Plaintiff obtained a proposal from Diamond Automatic Sprinklers, Inc, (herein, "Diamond") for non-routine repairs that were necessary to the Pump House (herein, the "Diamond Repairs"). 16. On or about the same day, Plaintiff provided Defendants a copy of Diamond's proposal. 17. Thereafter, Defendants indicated to Plaintiff that they wanted to obtain a second proposal for the repairs. 18. On or about May 25, 2000, Plaintiff inquired of the status of the second proposal that Defendants indicated they were going to obtain. 19. In this same memo, Plaintiff informed Defendants that it would authorize Diamond to conduct the required repairs in accordance with its proposal unless Defendants objected prior to May 30, 2000. 20. Defendants did not object prior to May 30, 2000 to Diamond's proposal, and Plaintiff authorized Diamond to proceed with the repairs. 3 21. At no time prior to the Diamond Repairs, did Defendants notify Plaintiff that they would not share in the cost of the Diamond Repairs. 22. Defendants' failure to object to Diamond's proposal constituted an acceptance thereof. 23. Diamond completed the Diamond Repairs on or about August 1, 2000 and submitted an invoice to Plaintiff for $19,266.00. A true and correct copy of Diamond's invoice is attached hereto as Exhibit B and is incorporated herein by reference as if fully set forth. 24. Plaintiff paid Diamond's invoice in full (i.e., $19,266.00) on or about August 7, 2000. 25. By letter dated August 14, 2000, Plaintiff forwarded a copy of Diamond's invoice to Defendants and asked that Defendants issue a check in the amount of $9,633.00 (one-half of the Diamond invoice) to Plaintiff for their share of the cost of the Diamond Repairs. 26. Defendants did not respond to Plaintiff's request, and did not pay their share of the costs of the Diamond Repairs. 27. By letter dated October 23, 2000, Plaintiff again requested reimbursement from Defendants for their share of the cost of the Diamond Repairs. 28. Again, Defendants did not respond to Plaintiff's request, and did not pay their share of the costs of the Diamond Repairs. 29. By letter dated November 28, 2000, Plaintiff, through its counsel, demanded that Defendants pay their share of the cost of the Diamond Repairs. 4 30. Defendants, through their counsel, responded to this demand denying liability for any portion of the cost of the Diamond Repairs. 31. To date, and despite repeated demands, Defendants have failed and refused to reimburse Plaintiff for one-half of the Diamond invoice (i.e., $9,633.00). 32. From September 13, 1999 (when Defendants purchased the Hoffer Property) through the time of the filing of this Complaint, the Pump House has serviced, and continues to service, the Hoffer Property. 33. On various occasions from September 19, 1999 through approximately September 28, 2000, Defendants reimbursed Plaintiff for one-half of the costs of repairs to the Pump House, with the exception of the repairs that are the subject of this action. 34. Defendants, as successor to Rite Aid's rights and obligations under the Agreement, are liable to Plaintiff for one-half of all non-routine maintenance and repairs to the Pump House. 35. Defendants, as successor to Rite Aid's rights and obligations under the Agreement, have acknowledged this obligation on various occasions by reimbursing Plaintiff for repairs to the Pump House, as set forth above. 36. Defendants are liable to Plaintiff for the sum of $9,633.00, one-half of the cost of the Diamond Repairs. 37. Defendants are also liable to Plaintiff for prejudgment interest on Plaintiff's claim. Prejudgment interest has accrued on Plaintiff's claim in the amount of $505.73 through March 31, 2001, and continues to accrue at the per diem rate of $1.5835. 5 WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally, in the amount of $10,138.73, plus pre-judgment interest at the legal rate from April 1, 2001 until the date of judgment and post-judgment interest thereafter, costs of this action, and such other relief as this Court deems just and appropriate. Count II 38. Paragraphs 1 through 37 hereof are incorporated herein by reference as if fully set forth. 39. Defendants have benefited from the Pump House in that it has provided fire suppression services to the Hoffer Property since Defendants purchased it. 40. As set forth more fully above, at no time prior to the Diamond Repairs being started did Defendants object to Diamond's proposal or indicate that they would not pay their share of the Diamond Repairs. 41. Defendants' failure to object to Diamond's proposal constituted an acceptance thereof. 42. Prior to the Diamond Repairs being completed and Plaintiff demanding payment therefor, Defendants have never notified Plaintiff that they are no longer using the fire suppression system. 43. Prior to the Diamond Repairs being completed and Plaintiff demanding payment therefor, Defendants have never notified Plaintiff that they are no longer benefiting from the Pump House. 6 44. Prior to the Diamond Repairs being completed and Plaintiff demanding payment therefor, Defendants have never notified Plaintiff that they no longer wish to be responsible for maintenance and repairs to the Pump House. 45. With the exception of the Diamond Repairs, Defendants have paid their one-half share of all maintenance and repair costs for the Pump House since the date they purchased the Hoffer Property, even paying one invoice after the Diamond Repairs had been completed and Plaintiff had billed Defendants therefor. 46. Defendants are obligated to Plaintiff for their one-half share of the Diamond invoice, i.e., $9,633.00. 47. Defendants are also liable to Plaintiff for prejudgment interest on Plaintiff's claim. Prejudgment interest has accrued on Plaintiff's claim in the amount of $505.73 through March 31, 2001, and continues to accrue at the per diem rate of $1.5835. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally, in the amount of $10,138.73, plus pre-judgment interest at the legal rate from April 1, 2001 until the date of judgment and post-judgment interest thereafter, costs of this action, and such other relief as this Court deems just and appropriate. 7 Respectfully WIX, WENGERA.WEIDNER B illiasquire, I.D.# 62051 08 Necond Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff Date: will/01 F:\srw\3238 (ALEX GRASS)\10488 (REALM R.R. AVE)\DOCUMENTS\COMPLAINT.doc 8 EXHIBIT A \k 3S-88o W nal.re?1mis???,np nenm"L ue:eN H1AS ' c t CL of W AGREEMENT made this _L t , 1999, - ? between REALM R.R. AVE., with an address of No Ale G sss444 P. O. Box 3165, Harrisburg, Pennsylvania ("Grantor and RITE AID COR RATION, with an address of 30 Hunter Lane, Camp Hill, Pennsylvania ('Grantee") WHEREAS, Grantor is the owner of property on the eastern side of Railroad Avenue (the "Realm Property) on which is located a building known as 301 Railroad Avenue, Shiremanstown, Pennsylvania (the 'Realm Warehouse Property); and WHEREAS, Grantee Is the beneficial owner of property located at the comer of Trindle Road and Railroad Avenue, Shiremanstown, Pennsylvania (the'Trindle Road Propety), on which Is situated a building known as 4660 Trindle Road, Shiremanstown, Pennsylvania (the "Trindle Road Building'); and WHEREAS, certain equipment services both the Realm Warehouse and the Trindle Road Building, such equipment being commonly referred to as the pump house c for fire suppression systems and related equipment (collectively, the 'Pump Housel; CO = rrl l o and rc ) m n t ?oLo WHEREAS, the Pump House Is located on the Realm Property. rV v ri s ? Co , -4 NOW for $1.00 and other good and valuable consideration the receipt and o "u -^ sufficiency of which Is hereby acknowledged, and Intending to be legally bound hereby, 3 0 ° nr Grantor and Grantee agree as follows: t-+ C v rn 1. Grantee shall pay the costs of the annual inspectlontmaintenance contract O -'1 rn m p o kept by Grantee on the Pump House. z o ') co 2 The expense of any non-roullne maintenance or repairs (In excess of the n cost of routine annual inspections pursuant to the above-referenced contract) or replacement (less proceeds of any casualty insurance) will be divided equally between Grantor and Grantee. 3. An easement Is hereby granted to the owner of the Trindle Road Property over the Realm Property, for the benelit of the Trindle Road Property, exclusively for use of and maintenance of the Pump House, which easement shall automatically terminate should the Tdndle Road Building no longer require the equipment and services provided by the Pump House. 4. Should Grantor or Grantee elect to alarm the Pump House to check for running of pumps, freezing, and low battery, the party Installing such alarm will monitor and maintain such alarm. Trite costs of alarming the Pump House and the cost of monitoring and maintaining such alarm shall be divided equally between Grantor and Grantee. 5. This Agreement may be recorded, at the expense of the party seeking recordation. WITNESS: /7? (?., 4?? GRANTOR: RFALR. AVE/J?J) y: t' ras , Partner9lra/ss! yPartner GRANTEE: RITE AID CORPORATION nox 626 PACE 59 CO n Co 3C A Q, m b rn ?' o rV a ? ? :t y N 0 c o r 0 4 m r 00 03:0 D. a C, azL' By: UIII A. Binder Assistant Secretary COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF CUMBERLAND ) On the l day of ? -11999, before me, the undersigned officer, personally appeared ALEX GRASS, who acknowledged himself to be the Manager of REALM R.R. AVE., and he as such Manager, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the t name of the corporation by himself as Manager, µ IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal. i.n COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND MyCom *1nrF?lr?a• gH?,ha,c Notarial Seal Lisa J. Dickerson, Notary Publ Wormleysburg Doro, Cumberland C My Commisslon Explres Mar. 17, Member, YennsylVanla AeSOO.10 of P ) t? On the day cf 1999, before me, the undersigned officer, personalty appeared LILLI A. BINDER, who acknowledged herself to be the Assistant Secretary and Authorized Representative of RITE AID CORPORATION, a corporation, and that she as such Assistant Secretary and Authorized Representative, being authorized to do so, executed the foregoing Instrument for the purposes therein contained by signing the name of the corporation by herself as Assistant Secretary and Authorized Representative. IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal. I 1111?Ip? ataeta I My Commission E pirqW: 3?i4i O aphttAlanhsM MM 17, t0?r BOOK ,626 PACE GO EXHIBIT B 02/16/01 10:49 FAIL R015 4993 • I PHONE DATE OF Cornea DIAMOND AUTOMATIC SPRINKLERS1 INC. 975-9886 Mailing Address Shippin ORDER TAKEN BY CUSTOMER ORDER NUMBER g Address P.O. Box 604 518 N. Walnut Street M. Gwozdecki Boiling Springs, PA 17007 Mt. Holly Springs, PA 17065 DAY WORK © CONTRACT F-1 EXTRA (717) 486.5755 FAX (717) 486-7211 _L TO: Realm Railroad Ave Partnership Attn: Alex Grass 1000 N. Front Street Suite 503 Wormleysburg, PA 17043 QUANTITY UNITPRICE AMOUNT TOTAL MATERIALS ? :RMS DATE COMPLETED Net 30 8/01/00 ORK ORDERED BY Alex Grass JTHORIZED SIGNATURE JOB NAME INUMBER Old Rite Aid #2 Pump House JOB LOCATION Shiremanstown, PA DSO-54 JOB PHONE STARTING DATE DESCRIPTION OF WORK Replacement of the Existing Diesel Fire Pump Controller with a New Joslyn Clark`Diesel Fire Pump Controller, As per Our Proposal #2250, Dated 4/26/00. Encolsed is an Installation & Maintenance Bulletin for your files. An additional copy has been left inside the New Controller. OTHER CHARGES AMOUNT 1008 Contract Amount 19,266:0 TOTAL OTHER ? 19,266.( LABOR IHRS.I RATE AMOUNT TOTALLABOR ? TOTAL MATERIALS TOTAL OTHER TOTALLABOR TAX 19,266, TOTALD 19,266. i mmnv aetnwnndne the sellslaelorv eomAlellan of 111e ebova dAaedbed work. VERIFICATION I, Alex Grass, General Partner of Plaintiff in the foregoing Complaint, have read the foregoing Complaint and hereby affirm and verify that it is true and correct to the best of my personal knowledge, information and belief. I verify that all of the statements made in the foregoing Complaint are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. REALM R. R. AVENUE, LLP By: Alex G ass General Partner Date: ht S??/ z 9 a N X o 00 c n 0 M z ro y - v F a ' Y O A hy-7? x N m !v '? ° < w z a Gm n N z O? c? C N V p e m n ? m d z o to r ? v C r C ? SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2001-02241 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND AVENUE REALM R R LLP VS HOFFER NORMAN 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: HOFFER NORMAN INDIVIDUALLY AND T/A 4660 ASSOCIATES but was unable to locate Him deputized the sheriff of DAUPHIN in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On May 10th , 2001 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So answe s: Docketing 18.00 Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep. Dauphin Co 42.50 Sheriff of Cu erland County .00 79.50 05/10/2001 WIX, WENGER & WEIDNER Sworn and subscribed to before me this .2,2/K,,( day of 0 av-v/ A. D. C?r, r, aw; Prothonotdr SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2001-02241 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND AVENUE REALM R R LLP VS HOFFER NORMAN 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: HOFFER MATHEW INDIVIDUALY AND T/A 4660 ASSOCIATES but was unable to locate Him deputized the sheriff of DAUPHIN in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On May loth , 2001 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So answe Docketing 6.00 Out of County .00 Surcharge 10.00 R. Tomas Kline .00 Sheriff of Cumberland County .00 16.00 05/10/2001 WIX, WENGER & WEIDNER Sworn and subscribed to before me this .2,2,E day of -Ik ? o24Gu A. D. d J Prothonotary' SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2001-02241 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND AVENUE REALM R R LLP VS HOFFER NORMAN 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 4660 ASSOCIATES but was unable to locate Them deputized the sheriff of DAUPHIN serve the within COMPLAINT & NOTICE to wit: He therefore County, Pennsylvania, to On May 10th , 2001 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So answer Docketing 6.00 - Out of County .00 Surcharge 10.00 R. Thomas Kline / .00 Sheriff of Cumberland County .00 16.00 05/10/2001 WIX, WENGER & WEIDNER Sworn and subscribed to before me this ;202 day of A.D. nn Prothonotary in his bailiwick In The Court of Common Pleas of Cumberland County, Pennsylvania Realm R.R. Avenue LLP vs. 4660 Associates No. 2001 2241 Civil NOW, April 18 , 201, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a and made known to , 20`, at o'clock M. served the copy of the original So answers, the contents thereof. Sheriff of County, PA Sworn and subscribed before me this _ day of 20 COSTS SERVICE $ MILEAGE AFFIDAVIT In The Court of Common Pleas of Cumberland County, Pennsylvania Realm R.R. Avenuv& LLP Matthew Hoffer Ind. and t/a Ol 2241 Civil 4660 Associates No. Now, April 18 20 01 I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a and made known to , 20_, at o'clock M. served the copy of the original the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this _ day of 20 COSTS SERVICE $ MILEAGE AFFIDAVIT In The Court of Common Pleas of Cumberland County, Pennsylvania Realm R.R. Avenud?S. LLP Norman Hoffer Ind. and t/a 4600 Ay. sociates 2241 Civil 2001 Now, April 18 20 oi, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. -?? " X?ZZ Sheriff of Cumberland County, PA Affidavit of Service Now, within , 20-, at o'clock M. served the upon at by handing to a and made known to copy of the original the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this day of 20 COSTS SERVICE $ MILEAGE AFFIDAVIT (pill ce of E Sherfff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 tax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania REALM R R AVENUE LLP vs County of Dauphin HOFFER MATTHEW & 4660 ASSOCIATES Sheriff's Return No. 1222-T - - -2001 OTHER COUNTY NO. 01-2241 AND NOW: May 4, 2001 CIVIL ACTION COMPLAINT HOFFER MATTHEW & 4660 ASSOCIATES at 12:56PM served the within upon by personally handing to NORMAN HOFFER, GENERAL MANAGER, 2 COPIES 2 true attested copy(ies) of the original CIVIL ACTION COMPLAINT and making known to him/her the contents thereof at 1010 SUNSET AVE. HBG, PA 17112-0000 Sworn and subscribed to before me this 7TH day of MAY, 2001 ij]J I I T I PROTHONOTARY So Answers, )(41c- Sheriff of Dauphounty, Pa. By De ty eriff Sheriff's Costs: $42.50 PD 05/03/2001 RCPT NO 149413 CANTREL (Of fitrQ of tht ?hrriff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph:(717)255-2660 fax:(717)255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania REALM R R AVENUE LLP Vs County of Dauphin HOFFER MATTHEW & 4660 ASSOCIATES Sheriff's Return No. 1222-T - - -2001 OTHER COUNTY NO. 01-2241 AND NOW: May 4, 2001 at 12:56PM served the within CIVIL ACTION COMPLAINT upon HOFFER NORMAN by personally handing to NORMAN HOFFER, GENERAL MANAGER 1 true attested copy(ies) of the original CIVIL ACTION COMPLAINT and making known to him/her the contents thereof at 1010 SUNSET AVE. HBG, PA 17112-0000 Sworn and subscribed to before me this 7TH day of MAY, 2001 n,- PROTHONOTARY So Answers, k zShe 'ff of Daup n ounty, Pa. NW By De heriff Sheriff's Costs: $42.50 PD 05/03/2001 RCPT NO 149413 CANTREL REALM R. R. AVENUE, LLP, Plaintiff V. NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants To: Realm RR Avenue, LLP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 01-2241 CIVIL TERM CIVIL ACTION - LAW NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Preliminary Objection within twenty (20) days from service hereof or a judgment may be entered against you. Dilworth Paxson LLP ictor P. a ' e, Esq. 305 N. Front Street, Suite 403 Harrisburg, PA. 17101 (717) 236-4812 Date: May 24, 2001 REALM R. R AVENUE, LLP, Plaintiff V. NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 01-2241 CIVIL TERM CIVIL ACTION - LAW PRELIMNARY OBJECTION OF DEFENDANTS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendants, Norman Hoffer and Matthew Hoffer, individually and t/a 4660 Associates ("Hoffer") and file the following preliminary objections to the Complaint of the Plaintiff, Realm R.R. Avenue, LLP ("Realm") as follows: This action arises out of Plaintiff's claim that the Defendants are liable to it for one-half the cost of repairs to a Pump House pursuant to a written Agreement to which Plaintiff claims Defendants are a party as a successor in interest. Plaintiff asserts two unnamed Counts in its Complaint. Count I of the Complaint appears to assert liability based upon the Agreement itself, but additionally, suggests language that Defendants may be liable as a result of action on their part constituting an acceptance of the Agreement. 4. Count II of the Plaintiff s Complaint incorporates all previous averments, avers the same allegation as Count I that by their conduct Defendants accepted the Agreement, and further, that the Defendants never notified the Plaintiff that they were no longer using the Pump House. 5. Pa R.C.P. 1020(a) provides that each cause of action shall be stated in a separate count containing a demand for relief. 6. Pa.R.C.P. 1019(a) provides that the material facts on which a cause of action is based be stated in a concise and summary form. 7. It is not possible to determine from Plaintiff's Complaint the specific causes of action being asserted, and further, whether multiple causes of action have been asserted (improperly so) in each of the two Counts asserted. 8. Plaintiff s Complaint should be stricken for failure to conform to rules of Court and for insufficient specificity under Pa. R.C.P. 1028(2) and (3) respectively. 9. Alternatively, Plaintiff should be ordered to file an amended complaint specifically identifying in separate counts the nature of the causes of action it asserts and the factual basis supporting each count. WHEREFORE, the Defendants respectfully request that this Court strike Plaintiff's Complaint for failure to comply with rules of Court and/or for insufficient specificity, or alternatively, order that the Plaintiff file an amended complaint that specifically identifies each cause of action it asserts and the factual basis supporting each action. Dfl orth Paxson LLP *ictor. XaMC/ilsq. 305 N. Front Street, Suite 403 Harrisburg, PA. 17101 (717) 236-4812 Date; May 24, 2001 CERTIFICATE OF SERVICE I hereby certify that I have caused the foregoing to be served by first class mail this 24 h day of May 2001, upon the following: Steven R. Williams, Esq. Wix, Wenger & Weidner 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 t AlIctorp. it , REALM R. R. AVENUE, LLP, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 2001 - 02241 CIVIL TERM NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants : 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 Amended Complaint is 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 document 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. As provided by Pennsylvania Rules of Civil Procedure No. 1018. 1, the following officer is designated to be named in the Notice to Defend in order to find out where legal help can be obtained. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 REALM R. R. AVENUE, LLP, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2001 - 02241 CIVIL TERM NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants : CIVIL ACTION - LAW AMENDED COMPLAINT AND NOW, comes Plaintiff, Realm R. R. Avenue, LLP, by and through its attorneys, Wix, Wenger & Weidner, and files this Amended Complaint, stating the following in support: Facts Applicable to All Counts 1, Plaintiff is a Pennsylvania Limited Liability Partnership whose business address is 1000 North Front Street, Suite 503, Wormleysburg, PA 17043. 2. Defendant, Norman Hoffer, is an adult individual whose current business or residence address is 1010 Sunset Avenue, Harrisburg, PA 17112. 3. Defendant, Matthew Hoffer, is an adult individual whose current business or residence address is 1010 Sunset Avenue, Harrisburg, PA 17112. 4. Defendant, 4660 Associates is a Pennsylvania general partnership whose current business address is 1010 Sunset Avenue, Harrisburg, PA 17112, and whose general partners are Norman Hoffer and Matthew Hoffer. 5. Jurisdiction is proper in this Court because the real estate that is the subject of this action is situate in Cumberland County and Plaintiff's cause of action arose in Cumberland County. 6. The amount in controversy does not exceed $25,000 as required by the local rules regarding compulsory arbitration. 7. Plaintiff is the owner of real estate located on the eastern side of Railroad Avenue in Shiremanstown, Cumberland County (herein, the "Realm Property'). 8. Defendants are the owners of real estate located at the corner of Trindle Road and Railroad Avenue in Shiremanstown, Cumberland County (herein, the "Hoffer Property"), having purchased it on or about September 13, 1999. 9. There is located on the Realm Property a pump house (herein, the "Pump House") that serves both the Realm Property and the Hoffer Property for fire suppression and related services. 10. On or about September 7, 1999, Plaintiff and Rite Aid Corporation (herein, "Rite Aid"), then the beneficial owner of the Hoffer Property, entered into a written agreement regarding the Pump House (herein, the "Agreement"). A true and correct copy of the Agreement is attached hereto as Exhibit A and is incorporated herein by reference. 11. Pursuant to the Agreement, Plaintiff was responsible for the costs of an annual inspection/maintenance contract maintained on the Pump House. 2 12. Paragraph 2 of the Agreement states: The expense of any non-routine maintenance or repairs (in excess of routine annual inspections pursuant to the above-referenced contract) or replacement (less proceeds of any casualty insurance) will be divided equally between [Plaintiff] and [Rite Aid]. 13. When Defendants purchased the Hoffer Property, they were aware of the existence of the Agreement. 14. Defendants purchased the Hoffer Property subject to the Agreement and succeeded to the rights and obligations of Rite Aid under and pursuant to the Agreement. 15. On or about April 24, 2000, Plaintiff obtained a proposal from Diamond Automatic Sprinklers, Inc, (herein, "Diamond") for non-routine repairs that were necessary to the Pump House (herein, the "Diamond Repairs"). 16. On or about the same day, Plaintiff provided Defendants a copy of Diamond's proposal. 17. Thereafter, Defendants indicated to Plaintiff that they wanted to obtain a second proposal for the repairs. 18. On or about May 25, 2000, Plaintiff inquired of the status of the second proposal that Defendants indicated they were going to obtain. 19. In this same memo, Plaintiff informed Defendants that it would authorize Diamond to conduct the required repairs in accordance with its proposal unless Defendants objected prior to May 30, 2000. 20. Defendants did not object prior to May 30, 2000 to Diamond's proposal, and Plaintiff authorized Diamond to proceed with the repairs. 3 21. At no time prior to the Diamond Repairs, did Defendants notify Plaintiff that they would not share in the cost of the Diamond Repairs. 22. Defendants' failure to object to Diamond's proposal constituted an acceptance thereof. 23. Diamond completed the Diamond Repairs on or about August 1, 2000 and submitted an invoice to Plaintiff for $19,266.00. A true and correct copy of Diamond's invoice is attached hereto as Exhibit B and is incorporated herein by reference as if fully set forth. 24. Plaintiff paid Diamond's invoice in full (i.e., $19,266.00) on or about August 7, 2000. 25. By letter dated August 14, 2000, Plaintiff forwarded a copy of Diamond's invoice to Defendants and asked that Defendants issue a check in the amount of $9,633.00 (one-half of the Diamond invoice) to Plaintiff for their share of the cost of the Diamond Repairs. 26. Defendants did not respond to Plaintiff's request, and did not pay their share of the costs of the Diamond Repairs. 27. By letter dated October 23, 2000, Plaintiff again requested reimbursement from Defendants for their share of the cost of the Diamond Repairs. 28. Again, Defendants did not respond to Plaintiff's request, and did not pay their share of the costs of the Diamond Repairs. 29. By letter dated November 28, 2000, Plaintiff, through its counsel, demanded that Defendants pay their share of the cost of the Diamond Repairs. 4 30. Defendants, through their counsel, responded to this demand denying liability for any portion of the cost of the Diamond Repairs. 31. To date, and despite repeated demands, Defendants have failed and refused to reimburse Plaintiff for one-half of the Diamond invoice (i.e., $9,633.00). 32. From September 13, 1999 (when Defendants purchased the Hoffer Property) through the time of the filing of this Complaint, the Pump House has serviced, and continues to service, the Hoffer Property. 33. On various occasions from September 19, 1999 through approximately September 28, 2000, Defendants reimbursed Plaintiff for one-half of the costs of repairs to the Pump House, with the exception of the repairs that are the subject of this action. 34. By making these payments, Defendants have acknowledged their obligations under and pursuant to the Agreement. Count I - Breach of Contract 35. Paragraphs 1 through 34 hereof are incorporated herein by reference as if fully set forth. 36. The Agreement constitutes a valid and binding contract under which Defendants, as successor to Rite Aid's rights and obligations, are obligated to perform. 37. As set forth above, Defendants' obligations under and pursuant to the Agreement are to pay the one-half of the costs of all non-routine maintenance and repairs to the Pump House. 5 38. Defendants' refusal to reimburse Plaintiff for the Diamond Repairs constitutes a breach of the Agreement. 39. Plaintiff has been damaged as a result of Defendants' breach in the amount of $9,633.00, one-half of the cost of the Diamond Repairs. 40. Defendants are liable to Plaintiff for the sum of $9,633.00. 41. Defendants are also liable to Plaintiff for prejudgment interest on Plaintiff's claim. Prejudgment interest has accrued on Plaintiff's claim in the amount of $505.73 through March 31, 2001, and continues to accrue at the per diem rate of $1.5835. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally, in the amount of $10,138.73, plus pre-judgment interest at the legal rate from April 1, 2001 until the date of judgment and post-judgment interest thereafter, costs of this action, and such other relief as this Court deems just and appropriate. Count II - Breach of Implied/Quasi Contract/ Uniust Enrichment 38. Paragraphs 1 through 37 hereof are incorporated herein by reference as if fully set forth. 39. Defendants have benefited from the Pump House in that it has provided fire suppression services to the Hoffer Property since Defendants purchased it. 40. As set forth more fully above, at no time prior to the Diamond Repairs being started did Defendants object to Diamond's proposal or indicate that they would not pay their share of the Diamond Repairs. 6 41. Defendants' failure to object to Diamond's proposal constituted an acceptance thereof. 42. Plaintiff had the Diamond Repairs completed in reliance of Defendants' failure to object to the Diamond proposal, as well as Defendants' history of paying their share of other repairs to the Pump House. 43. At no time while Diamond was doing its work on the Pump House did Defendants object either to the work being done or the expected costs thereof. 44. Prior to the Diamond Repairs being completed and Plaintiff demanding payment therefor, Defendants have never notified Plaintiff that they are no longer using the fire suppression system. 45. Prior to the Diamond Repairs being completed and Plaintiff demanding payment therefor, Defendants have never notified Plaintiff that they are no longer benefiting from the Pump House. 46. Prior to the Diamond Repairs being completed and Plaintiff demanding payment therefor, Defendants have never notified Plaintiff that they no longer wish to be responsible for maintenance and repairs to the Pump House. 47. With the exception of the Diamond Repairs, Defendants have paid their one-half share of all maintenance and repair costs for the Pump House since the date they purchased the Hoffer Property, even paying one invoice after the Diamond Repairs had been completed and Plaintiff had billed Defendants therefor. 48. There existed between Plaintiff and Defendant an implied/quasi contract that required that Defendants pay one-half of the costs of the Diamond Repairs. 7 49. Defendants would be unjustly enriched if they were allowed to enjoy the benefits of the Diamond Repairs without paying their share of the costs. 50. Defendants are obligated to Plaintiff for their one-half share of the Diamond invoice, i.e., $9,633.00. 51. Defendants are also liable to Plaintiff for prejudgment interest on Plaintiff's claim. Prejudgment interest has accrued on Plaintiff's claim in the amount of $505.73 through March 31, 2001, and continues to accrue at the per diem rate of $1.5835. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally, in the amount of $10,138.73, plus pre-judgment interest at the legal rate from April 1, 2001 until the date of judgment and post-judgment interest thereafter, costs of this action, and such other relief as this Court deems just and appropriate. Respectfully WIX, WENG5P & WEIDNER : -t d Wk- By teve Williams, I.D.# 62051 508 N h Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff Date: -7' 20/01 FAsm\3238 (ALEX GRASS)\10488 (REALM R.R. AVE)\DOCUMENTSWMENDED COMPLAINT.doc 8 EXHIBIT A k 3t?Bgo ue:ar nsss . ,? C -k ? AGREEMENT made this 7 day of j.f t .1999, between REALM R. R. AVE., with an address of do Ale GGG ek P. 0. Box 3195, Harrisburg, Pennsylvania ("Grantor') and RITE AID COR RATION, with an address of 30 Hunter Lane, Camp Hill, Pennsylvania ('Grantee' WHEREAS, Grantor is the owner of property on the eastern side of Railroad Avenue (the "Realm Property) on which Is located a building known as 301 Railroad Avenue, Shiremanstown, Pennsylvania (the'Realm Warehouse Property); and WHEREAS, Grantee b the beneficial owner of property located at the corner of Tdndle Road and Railroad Avenue, Shiremanstown, Pennsylvania (the "Tdndle Road Propety"), on which Is situated a building known as 4990 Tdndle Road, Shiremanstown, Pennsylvania (the "Tdndle Road Bullding')1 and WHEREAS, certain equipment services both the Realm Warehouse and the C. Trindle Road Building, such equipment being commonly referred to as the pump house CO c for fire suppression systems and related equipment (collectively, the'Pump Housel; ED mi m a and rn m C? o r WHEREAS, the Pump House Is located on the Realm Property. i N "cmr = Cc x m NOW for $1.00 and other good and valuable consideration the receipt and sufficiency of which Is hereby acknowledged, and Intending to be legally bound hereby, 3 0 o r`r Grantor and Grantee agree as follows: cz M 1. Grantee shall pay the costs of the annual InspecliorJmainlenance contract o o Z "I -1 m Q c m - kept by Grantee on the Pump House. r N a C31) ) 2 -fire expense of any non-routine maintenance or repairs (In excess of the a cost of routine annual inspections pursuant to the above-referenced contract) or replacement (less proceeds of any casualty insurance) will be divided equally between Grantor and Grantee. 3. An easement is hereby granted to the owner of the Tdndle Road Property over the Realm Property, for the benefit of the Tdndle Road Property, exclusively for use of and maintenance of the Pump House, which easement shall automatically terminate should the Tdndle Road Building no longer require the equipment and services provided by the Pump House. 4. Should Grantor or Grantee elect to alarm the Pump House to check for running of pumps, freezing, and low battery, the party Installing such alarm will monitor and maintain such alarm. Tthe costs of alarming the Pump House and the cost of monitoring and maintaining such alarm shall be divided equally between Grantor and Grantee. 5. This Agreement may be recorded, at the expense of the party seeking retardation. WITNESS: GRANTOR: REAL A.AVE By: Ale rasa; Partner G X03 rr, © yM1 y A .9 a. GRANTEE: RITE AID CORPORATION a C, 6'' By: LIIII A. Binder Assistant Secretary COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF CUMBERLAND On the / day of -oar? . 1999, before me, the undersigned officer, personally appeared ALEX GRASS, who acknowledged himself to be the Manager of REALM R.R. AVE., and he no such Manager, being authorized to do so, .i executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by himself as Manager. lt"•? IN WITNESS WHEREOF, I have hereunto sat my hand and Notarial Seal.., ?,.j•' .. ,4PoI?i fit; My Com el nn Fvpiroe•,?p,a,/ .yam Notarial Seal Lisa J. Dickerson Notary Public Wormleysburg On,% t:umberland County My Commission Expires Mar. 17, 2008 Member, Pennsylvania Assooispon of Notaries COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF CUMBERLAND j ti On the day of 1999. before me, the undersigned officer, personally appeared LILLI A. BINDER, who acknowledged herself to be the Assistant Secretary and Authorized Representative of RITE AID CORPORATION, a corporation, and that she as such Assistant Secretary and Authorized Representative, being authorized to do so, executed the foregoing Instrument for the purposes therein contained by signing the name of the corporation by herself as Assistant Secretary and Authorized Representative. IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal. N ML {U I My Commission E pira: 3 O M/ MAW Mad 11, 20W 5001( fi?G PACE 60 EXHIBIT B 02/16/01 10:49 FAX PIAONF, DIAMOND AUTOMATIC SPRINKLERS, INC. 975-9886 ORDER TAKEN BY Mailing Address Shipping Address M. Gwazdecki P.O. Box 604 516 N. Walnut Street Boiling Springs, PA 17007 Mt. Holly Springs, PA 17065 'O DAY WORK (717) 486.5755 FAX (717) 486-7211 _LTO: Realm Railroad Ave Partnership Attn: Alex Grass 1000 N. Front Street Suite 503 Wormleysburg, PA 17043 QUANTITY 'MATERIA4'?" UNIT PRICE Z015 4993 1 GATEOFORDEM I CUSTOMER ORDER NUMBER © CONTRACT F-JEXTRA JOB NAME/NUMBER Old Rite Aid #2 Pump House JOB LOCATION Shiremanstown, PA DSO-54 JOB PHONE I STARTING DATE AMOUNT DESCRIPTION OF WORK Replacement of the Existing Diesel Fire Pump Controller with a New Joslyn Clark Diesel Fire Pump Controller, As per our Proposal #2250, Dated 4/26/00. Encolsed is an Installation & Maintenance Bulletin for your .files. An additional copy has been left inside the New Controller. OTHER CHARGES AMOUNT 100% Contract Amount 19,266;00 TOTAL OTHER ) 19,266.0( LABOR I HRS.I RATE AMOUNT :RMS Net 30 OAK ORDERED BY Alex Grass 1THORIZED SIGNATURE TOTAL MATERIALS DATE COMPLETED 8/01/00 TOTAL LABOR TOTAL MATERIALS TOTALOTHER TOTAL LABOR TAX 19,266,( K VERIFICATION I, Steven R. Williams, attorney for Plaintiff in the foregoing Amended Complaint, have read the foregoing Amended Complaint and hereby affirm and verify that it is true and correct to the best of my personal knowledge, information and belief. Plaintiff's representative is outside the jurisdiction of the Court, and the verification of him can be obtained within the time allowed for filing the pleading. I verify that all of the statements to which I have personal knowledge, information and belief are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. The information as to matters not stated upon my own persorypl knowledge, information and belief has been provided to me ;byPlaintiff* ve illiams, Attorney for ntiff DATE: 7I 70)0 REALM R. R. AVENUE, LLP, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2001 - 02241 CIVIL TERM NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that the foregoing Amended Complaint was sent by first class mail, postage prepaid this day to the following: Victor P. Stable, Esquire 305 North Front Street Suite 403 Harrisburg, PA 17101 DATE: f1 I aO? ?? WIX, WENGER & WEIDNER Je ette L. Roberts, Paralegal 50 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiffs a a X N 0 a 0 z > m n s i 0 1 z 9 p? z°x?r m .. N I Z N T V > '? M n N 4 1 u m Y O ? { ('y' ^ z x a N V p c Amy OD T v z ° m L z ? ' O r N W a 00 w :r i REALM R. R. AVENUE, LLP, Plaintiff V. NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants To: Realm R.R. Avenue, LLP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 01-2241 CIVIL TERM CIVIL ACTION - LAW NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Preliminary Objection within twenty (20) days from service hereof or a judgment may be entered against you. Dilworth Paxson LLP icto ile, Esq. 305 N. Front Street, Suite 403 Harrisburg, PA. 17101 (717) 236-4812 Date: August 9, 2001 REALM R. R. AVENUE, LLP, Plaintiff V. NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 01-2241 CIVIL TERM CIVIL ACTION - LAW PRELIMNARY OBJECTIONS OF DEFENDANTS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, comes the Defendants, Norman Hoffer and Matthew Hoffer, individually and t/a 4660 Associates ("Hoffer") and file the following preliminary objections to the Amended Complaint of the Plaintiff, Realm R.R. Avenue, LLP ("Realm") as follows: 1. This action arises out of Plaintiff s claim that the Defendants are liable to it for one-half the cost of repairs to a Pump House pursuant to a written Agreement to which Plaintiff claims Defendants are a party as a successor in interest. Additionally, Plaintiff further asserts that the Defendants are liable for these costs based upon an "implied/quasi contract" and that the Defendants have been "unjustly enriched". 2. Plaintiff again asserts its claims under two Counts in its Amended Complaint; Count I for "Breach of Contract" and Count II for "Breach of Implied/Quasi Contract/Unjust Enrichment". Count I - Demurrer/Uniust Enrichment A claim for unjust enrichment presupposes the absence of an agreement between the parties. 4. Plaintiff in Count I plead its claim based upon a written agreement attached as Exhibit "A" to its Amended Complaint. Since Plaintiff has pled the existence of a written contact between the parties as the basis for contractual liability, it cannot state a cause of action for unjust enrichment. WHEREFORE, the Defendants respectfully request that the Plaintiff's claim for unjust enrichment be dismissed from Plaintiff's Amended Complaint. Count II - Motion to Strike 6. Count II of the Amended Complaint seeks relief for "Breach of Implied/Quasi Contract/Unjust Enrichment". 7. Implied contracts are not quasi contracts and further, are different from quasi contracts based upon unjust enrichment. 8. Count II speaks both in terms of an "implied/quasi contract" and "unjust enrichment". 9. Pa R.C.P. 1020(a) provides that each cause of action shall be stated in a separate count containing a demand for relief 10. Pa.R.C.P. 1019(a) provides that the material facts on which a cause of action is based be stated in a concise and summary form 11. Again, it is not possible to determine from Count II of Plaintiff's Amended Complaint the facts that support these multiple causes of actions. 12. Further, it is apparent Plaintiff has pled more than one cause of action in a single count of its Amended Complaint. 13. Plaintiffs Amended Complaint should be stricken for failure to conform to rules of Court and for insufficient specificity under Pa. R.C.P. 1028(2) and (3) respectively. WHEREFORE, the Defendants respectfully request that this Court strike Count II of Plaintiff's Amended Complaint for failure to comply with rules of Court and/or for insufficient specificity, or alternatively, order that the Plaintiff again amend its pleading to specifically identify each cause of action and to plead the factual basis supporting each. DilwortPaxson LLP Victor abile, Esq. 305 N. Front Street, Suite 403 Harrisburg, PA. 17101 (717) 236-4812 Date: August 9, 2001 CERTIFICATE OF SERVICE I hereby certify that I have caused the foregoing to be served by first class mail this 9"' day of August 2001, upon the following: Steven R. Williams, Esq. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and Submitted in duplicate) TO THE PROTHONOT_#RY,'OF CUMBERLAND COUNTY: Please list the within matter for the next: rl L_: Pre-Triai Argument C ,4uT R Arstrmeat Court CAPTION OF CASE (entire caption must be stated in full) REALM R.R. AVENUE, LLP (Plaintiff) vs. NORMAN HOFFER AND MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, (Defendant) vs. 2241 2001 No. Civil 19 1. State matter to be argued (i. e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): DEFENDANTS' PRELIMINARY OBJECTION TO AMENDED COMPLAINT 2. Identify counsel who will argue case: (a) for plaintiff: STEVEN R. WILLIAMS, ESQ., 508 N. SECOND ST., BOX 845 HARRISBURG, PA 17108-0845 (717) 234^4182 (b) for defendant: VICTOR P. STABILE, E SQ., 305 N. FROM ST., HARRISBURG, PA 17 1 (717) 236-4812 3. I will notify all parties in writing within two day at this ease has been listed for argument. _ n l? ittor iey for PLAINTIFF STEVEN R. WILLIAMS, ESQ., I.D. # 62051 Dated: REALM R. R. AVENUE, LLP, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2001 - 02241 CIVIL TERM NORMAN HOFFER and MATTHEW HOFFER, individually and Va 4660 ASSOCIATES, Defendants : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that the foregoing Praecipe for Listing Case for Argument was sent by first class mail, postage prepaid this day to the following: Victor P. Stable, Esquire 305 North Front Street Suite 403 Harrisburg, PA 17101 Attorney for Defendants WIX, WENGER & WEIDNER By: ?G L nn Crider, Paralegal 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 DATE: Attorneys for Plaintiffs 3 A) SO 8 a 0 0 REALM R. R. AVENUE, LLP, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2001 - 02241 CIVIL TERM NORMAN HOFFER and MATTHEW HOFFER, individually and Va 4660 ASSOCIATES, Defendants : 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 Amended Complaint is 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 document 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. As provided by Pennsylvania Rules of Civil Procedure No. 1018.1, the following officer is designated to be named in the Notice to Defend in order to find out where legal help can be obtained. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 REALM R. R. AVENUE, LLP, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO, 2001 - 02241 CIVIL TERM NORMAN HOFFER and MATTHEW HOFFER, individually and Ua 4660 ASSOCIATES, Defendants CIVIL ACTION - LAW SECOND AMENDED COMPLAINT AND NOW, comes Plaintiff, Realm R. R. Avenue, LLP, by and through its attorneys, Wix, Wenger & Weidner, and files this Second Amended Complaint, stating the following in support: Facts Applicable to All Counts 1. Plaintiff is a Pennsylvania Limited Liability Partnership whose business address is 1000 North Front Street, Suite 503, Wormleysburg, PA 17043. 2. Defendant, Norman Hoffer, is an adult individual whose current business or residence address is 1010 Sunset Avenue, Harrisburg, PA 17112. 3. Defendant, Matthew Hoffer, is an adult individual whose current business or residence address is 1010 Sunset Avenue, Harrisburg, PA 17112. 4. Defendant, 4660 Associates, is a Pennsylvania general partnership whose current business address is 1010 Sunset Avenue, Harrisburg, PA 17112, and whose general partners are Norman Hoffer and Matthew Hoffer. 5. Jurisdiction is proper in this Court because the real estate that is the subject of this action is situate in Cumberland County and Plaintiff's cause of action arose in Cumberland County. 6. The amount in controversy does not exceed $25,000 as required by the local rules regarding compulsory arbitration. 7. Plaintiff is the owner of real estate located on the eastern side of Railroad Avenue in Shiremanstown, Cumberland County (herein, the "Realm Property"). 8. Defendants are the owners of real estate located at the corner of Trindle Road and Railroad Avenue in Shiremanstown, Cumberland County (herein, the "Hoffer Property"), having purchased it on or about September 13, 1999. 9. There is located on the Realm Property a pump house (herein, the "Pump House") that serves both the Realm Property and the Hoffer Property for fire suppression and related services. 10. On or about September 7, 1999, Plaintiff and Rite Aid Corporation (herein, "Rite Aid"), then the beneficial owner of the Hoffer Property, entered into a written agreement regarding the Pump House (herein, the "Agreement"). A true and correct copy of the Agreement is attached hereto as Exhibit A and is incorporated herein by reference. 11. Pursuant to the Agreement, Plaintiff was responsible for the costs of an annual inspection/maintenance contract maintained on the Pump House. 2 12. Paragraph 2 of the Agreement states: The expense of any non-routine maintenance or repairs (in excess of routine annual inspections pursuant to the above-referenced contract) or replacement (less proceeds of any casualty insurance) will be divided equally between [Plaintiff] and [Rite Aid]. 13. When Defendants purchased the Hoffer Property, they were aware of the existence, and accepted the terms, of the Agreement. 14. Defendants purchased the Hoffer Property subject to the Agreement and succeeded to the rights and obligations of Rite Aid under and pursuant to the Agreement. 15. On or about April 24, 2000, Plaintiff obtained a proposal from Diamond Automatic Sprinklers, Inc, (herein, "Diamond") for non-routine repairs that were necessary to the Pump House (herein, the "Diamond Repairs"). 16. On or about the same day, Plaintiff provided Defendants a copy of Diamond's proposal. 17. Thereafter, Defendants indicated to Plaintiff that they wanted to obtain a second proposal for the Diamond Repairs. 18. On or about May 25, 2000, Plaintiff inquired of the status of the second proposal that Defendants indicated they were going to obtain. 19. In this same memo, Plaintiff informed Defendants that it would authorize Diamond to perform the Diamond Repairs in accordance with its proposal unless Defendants objected prior to May 30, 2000. 20. Defendants did not object prior to May 30, 2000 to Diamond's proposal, and Plaintiff authorized Diamond to proceed with the repairs. 3 21. At no time prior to the Diamond Repairs, did Defendants notify Plaintiff that they would not share in the cost of the Diamond Repairs. 22. Defendants' failure to object to Diamond's proposal constituted an acceptance thereof. 23. Diamond completed the Diamond Repairs on or about August 1, 2000 and submitted an invoice to Plaintiff for $19,266.00. A true and correct copy of Diamond's invoice is attached hereto as Exhibit B and is incorporated herein by reference as if fully set forth. 24. Plaintiff paid Diamond's invoice in full (i.e., $19,266.00) on or about August 7, 2000. 25. By letter dated August 14, 2000, Plaintiff forwarded a copy of Diamond's invoice to Defendants and asked that Defendants issue a check in the amount of $9,633.00 (one-half of the Diamond invoice) to Plaintiff for their share of the cost of the Diamond Repairs. 26. Defendants did not respond to Plaintiff's request, and did not pay their share of the costs of the Diamond Repairs. 27. By letter dated October 23, 2000, Plaintiff again requested reimbursement from Defendants for their share of the cost of the Diamond Repairs. 28. Again, Defendants did not respond to Plaintiff's request, and did not pay their share of the costs of the Diamond Repairs. 29. By letter dated November 28, 2000, Plaintiff, through its counsel, demanded that Defendants pay their share of the cost of the Diamond Repairs. 4 30. Defendants, through their counsel, responded to this demand denying liability for any portion of the cost of the Diamond Repairs. 31. To date, and despite repeated demands, Defendants have failed and refused to reimburse Plaintiff for one-half of the Diamond invoice (i.e., $9,633.00). 32. From September 13, 1999 (when Defendants purchased the Hoffer Property) through the time of the filing of this Complaint, the Pump House has serviced, and continues to service, the Hoffer Property by providing fire suppression protection thereto. 33. On various occasions from September 19, 1999 through approximately September 28, 2000, Defendants reimbursed Plaintiff for one-half of the costs of repairs to the Pump House, with the exception of the Diamond Repairs. 34. By making these payments, Defendants have acknowledged their obligations under and pursuant to the Agreement. 35. Prior to the Diamond Repairs being completed and Plaintiff demanding payment therefor, Defendants had never notified Plaintiff that they did not desire the protection of the Pump House. 36. Prior to the Diamond Repairs being completed and Plaintiff demanding payment therefor, Defendants had never notified Plaintiff that they were no longer benefiting from the Pump House. 37. Prior to the Diamond Repairs being completed and Plaintiff demanding payment therefor, Defendants had never notified Plaintiff that they did not wish, and did not intend, to be responsible for maintenance and repairs to the Pump House. 5 Count I - Breach of Contract 38. Paragraphs 1 through 37 hereof are incorporated herein by reference as if fully set forth. 39. The Agreement constitutes a valid and binding contract under which Defendants, as successor to Rite Aid's rights and obligations, are obligated to perform. 40. Asset forth above, Defendants' obligations under and pursuant to the Agreement are to pay the one-half of the costs of all non-routine maintenance and repairs to the Pump House. 41. Defendants' refusal to reimburse Plaintiff for the Diamond Repairs constitutes a breach of the Agreement. 42. Plaintiff has been damaged as a result of Defendants' breach in the amount of $9,633.00, one-half of the cost of the Diamond Repairs. 43. Defendants are liable to Plaintiff for the sum of $9,633.00. 44. Defendants are also liable to Plaintiff for pre-judgment interest on Plaintiff's claim. Prejudgment interest has accrued on Plaintiff's claim in the amount of $987.38 through January 31, 2002, and continues to accrue at the per diem rate of $1.5835. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally, in the amount of $10,620.38, plus pre-judgment interest at the legal rate from February 1, 2002 until the date of judgment and post-judgment interest thereafter, costs of this action, and such other relief as this Court deems just and appropriate. 6 Count II - Breach of Implied Contract 45. Paragraphs 1 through 37 hereof are incorporated herein by reference as if fully set forth. 46. For all of the reasons set forth above in Plaintiff's Facts Applicable to All Counts, there exists an implied contract between Plaintiff and Defendants that requires that Defendants pay one-half of the costs of all non-routine maintenance and repairs to the Pump House. 47. At no time prior to the Diamond Repairs being started did Defendants object to Diamond's proposal or indicate that they would not pay their share of the Diamond Repairs. 48. Defendants' failure to object to Diamond's proposal constituted an acceptance thereof. 49. Plaintiff had the Diamond Repairs completed in reliance on Defendants' failure to object to the Diamond proposal, as well as Defendants' history of paying their share of other repairs to the Pump House. 50. At no time while Diamond was performing the Diamond Repairs to the Pump House did Defendants object either to the work being done or the expected costs thereof. 51. There exists between Plaintiff and Defendants an implied contract that required that Defendants pay one-half of the costs of the Diamond Repairs. 52. Defendants are obligated to Plaintiff for the their one-half share of the Diamond invoice, i.e., $9,633.00. 7 53. Defendants are also liable to Plaintiff for pre-judgment interest on Plaintiff's claim. Prejudgment interest has accrued on Plaintiffs claim in the amount of $987.38 through January 31, 2002, and continues to accrue at the per diem rate of $1.5835. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally, in the amount of $10,620.38, plus pre-judgment interest at the legal rate from February 1, 2002 until the date of judgment and post-judgment interest thereafter, costs of this action, and such other relief as this Court deems just and appropriate. Count III - Quasi Contract - Uniust Enrichment 54. Paragraphs 1 through 37 hereof are incorporated herein by reference as if fully set forth. 55. Defendants have benefited from the Pump House in that it has provided fire suppression services to the Hoffer Property since Defendants purchased it. 56. Defendants have benefited from the Diamond Repairs in that if they had not been completed, the Pump House may not function properly in providing the fire suppression services to the Hoffer Property. 57. Defendants are and always have been fully aware of, and appreciate and always have appreciated, the benefits they have received and continue to receive as a result of the fire suppression service provided by the Pump House. 58. Defendants are and always have been fully aware of, and appreciate and always have appreciated, the benefits they received and continue to receive as a result of the Diamond Repairs. 8 59. Defendants would be unjustly enriched if they were allowed to enjoy the benefits of the Diamond Repairs without paying their share of the costs. 60. The reasonable value of the Diamond Repairs, as evidenced by the Diamond invoice, is $19,266.00. 61. Defendants are obligated to Plaintiff for one-half of such value, i.e., $9,633.00. 62. Defendants are also liable to Plaintiff for pre-judgment interest on Plaintiff's claim. Prejudgment interest has accrued on Plaintiff's claim in the amount of $987.38 through January 31, 2002, and continues to accrue at the per diem rate of $1.5835. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally, in the amount of $10,620.38, plus pre-judgment interest at the legal rate from February 1, 2002 until the date of judgment and post-judgment interest thereafter, costs of this action, and such other relief as this Court deems just and appropriate. Respectfully WIX, WENGEP/tyWEIDNER By: tev n .Williams, I,D.# 62051 508 rth Second Street P. 0. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff Date:,,718/oL FASrw\3238 (ALEX GRASS)\11654 (REALM R.R. AVE v. HOFFER)\DOCUMENTS\2D AMD COMPLAINT.doc 9 EXHIBIT A 3S•B8D ?N,.al.lerMlx.?.mp ro,w..v 1.19;OIr NJ9r ??l..(,rt C ,? ? AGREEMENT made this 7 "" day of _yY Y/.' . 1999, between REALM R.R. AVE., with an address of do Alez GG a4 P. O. Box 3195, Harrisburg, Pennsylvania ("Grantor? and RITE AID COR RATION, with an address of 30 Hunter Lane, Camp 1-110, Pennsylvania ('Grantee") WHEREAS, Grantor is the owner of property on the eastern side of Railroad Avenue (the "Realm Property) on which is located a building known as 301 Railroad Avenue, Shiremanstown, Pennsylvania (the'Realm Warehouse Property'); and WHEREAS, Grantee Is the beneficial owner of property located at the corner of Trindle Road and Railroad Avenue, Shiremanstown, Pennsylvania (the °Trindle Road Propety), on which Is situated a building known as 4660 Trindle Road, Shiremanstown, Pennsylvania (the "Trindle Road Building'); and WHEREAS, certain equipment services both the Realm Warehouse and the C, Trindle Rood Building, such equipment being commonly referred to as the pump house CO C for fire suppression systems and related equipment (collectively, the 'Pump House"); m m and rn rn a o ?qtv WHEREAS, the Pump House to located on the Realm Property. rV rn ?n ti i NOW for $1.00 and other good and valuable consideration the receipt and '^' . n sufficiency of which Is hereby acknowledged, and Intending to be legally bound hereby, 3 0 0 =r Grantor and Grantee agree as follows: o rn 1. Grantee shall pay the costs of the annual Inspsctlon/mainlenance contract c? o _r m m ° kept by Grantee on the Pump House, r° A m 2 The expense of any non-routine maintenance or repairs (In excess of the D cost of routine annual inspections pursuant to the above-referenced contract) or replacement (less proceeds of any casualty insurance) will be divided equally between Grantor and Grantee. 3. An easement Is hereby granted to the owner of the Trindle Road Property over the Realm Property, for the benefit of the Trindle Road Property, exclusively for use of and maintenance of the Pump House, which easement shall automatically terminate should the Trindle Road Building no longer require the equipment and services provided by the Pump House. 4, Should Grantor or Grantee elect to alarm the Pump House to check for running of pumps, freezing, and low battery, the party Installing such alarm will monitor and maintain such alarm. Tthe costs of alarming the Pump House and the cost of monitoring and maintaining such alarm shall be dlvided equally between Grantor and Grantee. 5. This Agreement may be recorded, of the expense of the party seeking recordation. WITNESS: GRANTOR: REAL AVE J r /-? Ely. Ale ras , Pa tner GRANTEE: RITE AID CORPORATION CO C? co X :0 CO W n1 D rn ? a o r10 s CA n --1 -7 n N 0 C 6 r © 4rmr to K•y a, By: LIM A. Binder Assistant Secretary COMMONWEALTH OF PENNSYLVANIA j COUNTY OF CUMBERLAND ) On the /?^ day of ?6*%'? . 1999, before me, the undersigned officer, personally appeared ALEX GRASS, who acknowledged himself to be the Manager of REALM R.R. AVE., and he as such Manager, being authorized to do so. Y, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by himself as Manager. 'w. jdl Y IN W ITNESS W HEREOF, I have hereunto set my hand and Notarial Seal '• r)aa?r My Com dnn Fvplrna• gyL,,,h n/_ l7, Notarial Seal Lisa J. Dickerson Notary Public Wormleysburg awo, ?umbedand County My Commission Expires Mar. 17, 2003 Member, Pennsylvania AeaOClaZ 01 Netaitur COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF CUMBERLAND ) ti On the R day of As.{++LJ.x? 1999, before me, the undersigned officer, personally appeared LILLI A. BINDER, Who acknowledged herself to be the Assistant Secretary and Authorized Representative of RITE AID CORPORATION, a corporation, and that she as such Assistant Secretary and Authorized Representative, being authorized to do so, executed the foregoing Instrument for the purposes therein contained by signing the name of the corporation by herself as Assistant Secretary and Authorized Representative. IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seat. Mwelvp w "M My Comte miS to 0ptrbd: 3 O KINpsIC F?Yn wl 17, 204! rtD Boa 676 PACE GO EXHIBIT B 02/16/01 10:49 FAX J) ?. z? )11 ? \ ?1 L? AI`? d DIAMOND AUTOMATIC SPRINKLERS, INC. Mailing Address Shippln Address P.O. Box 604 518N. Walnut Street Boiling Springs, PA 17007 Mt. Holly Springs, PA 17065 (717) 4865755 FAX (717) 486.7211 _LTO: Realm Railroad Ave Partnership Attn: Alex Grass 1000 N. Front Street Suite 503 Wormleysburg, PA 17043 PHONR 975-9886 ORDER TAKEN BY M. Gwozdecki DAY WORK Q015 4993 1 DATE OP DaDEM 1 I CUSTOMER ORDER NUMBER I © CONTRACT EXTRA JOB NAMEI NUMBER Old Rite Aid #2 Pump House JOB LOCATION Shiremanstown. PA DSO-54 JOB PHONE I STARTING DATE QUANTITY ;`MATERIAL " `;`'• ' '. UNIT PRICE AMOUNT DESCRIPTIONOPWORK Replacement of the Existing Diesel Fire Pump Controller with a New Joslyn Clark `Diesel Fire Pump Controller, As per our Proposal #2250, Dated 4/26/00. Encolsed is an Installation & Maintenance Bulletin for your .files. An additional copy has been left inside the New Controller. OTHER CHARGES AMOUNT 100% Contract Amount 19,266.01 TOTAL OTHER (? 19,266-C ' LABOR I HRS. I RATE AMOUNT TOTAL MATERIALS TOTAL LABOR J• iRMS DATE COMPLETED TOTAL MATERIALS Net 30 8/01/00 TOTAL OTHER. 19,266 ORK ORDERED BY TOTAL LABOR Alex Grass TAX ITLIf1Gl>C11 AIRNpT11gC VERIFICATION I, Alex Grass, General Partner of Plaintiff in the foregoing Second Amended Complaint, have read the foregoing Amended Complaint and hereby affirm and verify that it is true and correct to the best of my personal knowledge, information and belief. I verify that all of the statements made in the foregoing Amended Complaint are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. REALM R. R. AVENUE, LLP By: Al4Gr Genera Partner Date: REALM R. R. AVENUE, LLP, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2001 - 02241 CIVIL TERM NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that the foregoing Second Amended Complaint was sent by first class mail, postage prepaid this day to the following: Victor P. Stabile, Esquire Dilworth Paxson, LLP 305 North Front Street Suite 403 Harrisburg, PA 17101 Attorneys for Defendants Respectfully Submitted, WIX, WENGER & WEIDNER By: Alison M. Zortman, Paral I 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff Date: r: XXrlo. T D F N Gx m N O C C 0 1 X4 y z m ° ion p= zTZm =' a I < m f1 ti W N D O O { p a Z X O N V a" Amy L m y z Cn 6. Realm R.R. Avenue, LLP V Norman Hoffer and Matthew Hoffer, individually, and tea 4660 Associates IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-2241 CIVIL TERM ORDER OF COURT AND NOW, February 13, 2002, by agreement of counsel, the above-captioned matter is continued from the February 13, 2002 Argument Court list. Counsel is directed to relist the case when ready. By the Court, teven R. Williams, Esquire For the Plaintiff /letictor P. Stabile, Esquire For the Defendant Court Administrator Ge ge Xoer . oz-i?-az Id ,, ?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REALM R. R. AVENUE, LLP, Plaintiff No. 2001-02241 CIVIL TERM V. NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants CIVIL ACTION - LAW NOTICE TO PLEAD TO: PLAINTIFF You are hereby notified to file a written response to the within New Matter and Counterclaim within twenty (20) days of service upon you or a judgment may be entered against you. ictor P. Sta i s . Attorney Id. No. 37449 Dilworth Paxson LLP 305 N. Front Street, Suite 403 Harrisburg, PA 17101 March 15, 2002 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REALM R. R. AVENUE, LLP, Plaintiff No. 2001-02241 CIVIL TERM V. NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants CIVIL ACTION - LAW ANSWER, NEW MATTER AND COUNTERCLAIM OF DEFENDANTS TO PLAINTIFFS' SECOND AMENDED COMPLAINT AND NOW, comes the Defendants Norman Hoffer and Matthew Hoffer, individually and t/a 4660 Associates (hereinafter "Hoffer") and files the following answer, new matter and counterclaim to plaintiff's second amended complaint as follows: 1. Denied in that after reasonable investigation the defendants are without sufficient information to form a belief as to the truth of the averments and strict proof thereof is demanded at time of trial. 2. Admitted and denied. Admitted that Norman Hoffer is an adult individual who has interests in businesses at 110 Sunset Avenue, Harrisburg, PA 17112. The remaining averments are denied. 3. Admitted and denied. Admitted that Matthew Hoffer is an adult individual who has interests in businesses at 110 Sunset Avenue, Harrisburg, PA 17112. The remaining averments are denied. 4. Admitted, with the exception that the business address is 110 Sunset Avenue. 5. Denied as legal conclusions requiring no response. 6. Denied as legal conclusions requiring no response. 7. Denied in that after reasonable investigation the defendants are without sufficient information to form a belief as to the truth of the averments 8. Admitted and denied. Admitted that Hoffer bought real estate under a purchase agreement dated June 3, 1999 between the Hoffer and Rite Aid Realty Corporation. The remaining averments are denied. 9. Admitted upon information and belief that a Pump House is located on the Realm property as defined by plaintiff. Denied that the Pump House serves both the Realm and Hoffer properties. Rather, the Hoffer property has no use for the Pump House. 10. Admitted only, and without admitting the validity of same, that the agreement attached as Exhibit A is a document which speaks for itself. All remaining averments are denied. 11. Denied in that the document speaks for itself. 12. Denied in that the document speaks for itself. 13. Denied. To the contrary, when the Hoffer property was purchased on June 3, 1999 the aforesaid agreement did not even exist. Therefore, Hoffer was not only unaware of the agreement, but obviously could not have agreed to its terms as well. 14. Denied as legal conclusions requiring no response. 15. Admitted and denied. Admitted that a proposal dated April 26, 2000, was received by Hoffer. The remaining averments are denied in that Hoffer is without sufficient information to form a belief as to the truth of these averments and strict proof thereof is demanded at time of trial. 16. Admitted that Hoffer at some time received a copy of the April 26, 2000 proposal. The remaining averments are denied. 17. Admitted and denied. Admitted that Hoffer had a discussion with Mr. Alex Grass, at which time he expressed his displeasure at the proposal and indicated his belief that this work could be performed much less by another company. At no time, however, did Hoffer agree that the proposed repairs were his legal responsibility. 18. Admitted that by memo dated May 25, 2000 Mr. Grass informed Mr. Hoffer unilaterally that he was going to proceed with the repair after not having been able to speak with Mr. Hoffer. The remaining averments are denied and further, the memo is a document that speaks for itself. 19. Denied in that the memo is a document which speaks for itself. 20. Denied. To the contrary, Hoffer indicated to Mr. Grass prior to May 30, 2000 that he felt the Diamond proposal was excessive. This was all without admission that Hoffer had any legal responsibility for these repairs. 21. Denied. To the contrary, see Hoffer's answer to paragraph 19 and 20. 22. Denied as legal conclusions requiring no response. 23. Admitted that Exhibit B is a document that speaks for itself and proports to be a bill for services in the amount of $19,266.00. All remaining averments are denied in that Hoffer is without sufficient information to form a belief as to the truth of these averments and strict truth thereof is demanded at time of trial. 24. Denied in that after reasonable investigation the defendants are without sufficient information to form a belief as to the truth of the averments 25. Admitted that the letter dated August 14, 2000 with attachments are documents which speak for themselves. All remaining averments are denied. 26. Denied as stated. Admitted that Hoffer has not paid half of this invoice, but denied that Hoffer has not responded to this request. To the contrary, in subsequent correspondence, Hoffer has made plaintiff aware of the fact that it contests its liability for these repairs. 27. Denied in that the October 23, 2000 letter is a document which speaks for itself. 28. Denied. By way of answer, see response to paragraph 26. 29. Denied in that the November 28, 2000 letter is a document which speaks for itself. 30. Admitted. By way of further averment, the letter sent by Hoffer's counsel is a document which speaks for itself. 31. Admitted that Hoffer has not paid one-half of the Diamond invoice. The remaining averments are denied. 32. Denied. To the contrary, very shortly after Hoffer acquired the property, the fire suppression system was drained and never used. It is further averred that at no time was the fire suppression system ever necessary for the Hoffer property. All remaining averments are denied as stated. 33. Denied as stated. It is admitted that a couple of small bills were processed through Hoffer's business and paid. It is admitted that Hoffer has not paid one-half of the invoice for $19, 266.00. The remaining averments are denied as stated. 34. Denied as legal conclusions requiring no response. 35. Denied as stated. No request was ever made of Hoffer "Prior to the Diamond repairs being completed and Plaintiff demanding payment". By way of further averment, Hoffer has notified plaintiff that the fire suppression system is not necessary for its property. 36. Denied that Hoffer never notified plaintiff that it was no longer benefiting from the Pump House "Prior to the Diamond repairs being completed and Plaintiff demanding payment". 37. Denied that Hoffer never notified plaintiff that it did not wish and did not intend to be responsible for maintenance or repairs to the Pump House "Prior to the Diamond repairs being completed and Plaintiff demanding payment". COUNT I - Breach of Contract 38. By way of response, Hoffer incorporates its answers to paragraphs 1 through 37 as though the same were fully set forth herein at length. 39. Denied as legal conclusions requiring no response. 40. Denied as legal conclusions requiring no response. 41. Denied as legal conclusions requiring no response. 42. Denied as stated. To the contrary, it is averred plaintiff has paid for services which it alone required and has had the benefit of. Therefore, plaintiff has suffered no damage. 43. Denied as legal conclusions requiring no response. 44. Denied as legal conclusions requiring no response. WHEREFORE, Hoffer respectfully requests that judgment be entered in its favor and against plaintiff and for such other and further relief as this Court deems appropriate. COUNT II - Breach of Implied Contract 45. By way of response, Hoffer incorporates its answers to paragraphs 1 through 37 as though the same were fully set forth herein at length. 46. Denied as legal conclusions requiring no response. 47. Denied. To the contrary, Hoffer at no time admitted any legal liability for these repairs and further, objected to the amount of Diamond's proposal prior to the repairs being made. 48. Denied as legal conclusions requiring no response. 49. Denied in that after reasonable investigation the defendants are without sufficient information to form a belief as to the truth of the averments and strict proof thereof is demanded at time of trial. 50. Denied. To the contrary, prior to the last repairs being completed, Hoffer objected to the amount of the Diamond proposal. Remaining averments are denied. 51. Denied as legal conclusions requiring no response. 52. Denied as legal conclusions requiring no response. 53. Denied as legal conclusions requiring no response. WHEREFORE, Hoffer respectfully request that judgment be entered in its favor and against plaintiff, and for such other and further relief as this Court deems appropriate. COUNT III - Quasi Contract - Unjust Enrichment 54. By way of response, Hoffer incorporates its responses to paragraphs 1 through 37 as though the same were fully set forth herein at length. 55. Denied. To the contrary, the fire suppression system has not been used by the Hoffer property and further, has not been necessary for use by the Hoffer property. 56. By way of response, see response to paragraph 55. 57. By way of the response, see responses to paragraphs 55 and 56. 58. By way of response, see responses to paragraphs 55 and 56. 59. Denied as legal conclusions requiring no response. 60. Denied. It is believed by Hoffer that the amount of this invoice is excessive. 61. Denied as legal conclusions requiring no response. 62. Denied as legal conclusions requiring no response. WHEREFORE, Hoffer respectfully requests that judgment be entered in its favor and against plaintiff, and for such other and further relief as this Court deems appropriate. NEW MATTER 63. Plaintiff fails to state any causes of actions against Hoffer. 64. Plaintiff fails to state any cause of action for breach of contract. 65. Plaintiff fails to state any cause of action for implied contract. 66. Plaintiff fails to state any cause of action for quasi contract or unjust enrichment. 67. The September 7, 1999 agreement between Realm R.R. Ave., and Rite Aid Corporation referenced in plaintiff's complaint is not valid or legal. 68. To the extent the September 7, 1999 agreement is valid, it does not obligate Hoffer to pay for the repairs complained of in plaintiff's complaint. 69. The September 7„ 1999 agreement provides that the "easement shall automatically terminate should the Trindle Road Building no longer require the equipment and services provided by the Pump House." 70. The September 7, 1999 agreement did not constitute a part of the purchase agreement between Hoffer and Rite Aid Realty Corporation. 71. The September 7, 1999 agreement fails for lack of consideration. 72. Hoffer committed no acts upon which the plaintiff may justifiably rely for any of its claims. 73. Hoffer has received no benefit from the Pump House. 74. To the extent Hoffer is found liable for the repairs complained of, it is averred that the amount claimed is unreasonable and excessive. COUNTERCLAIM 75. Hoffer incorporates by reference its responses to paragraphs 1 through 74 as though the same were set forth herein at length. 76. At all times material hereto, Hoffer took at face value the representations by Plaintiff that Hoffer was liable for one-half the repairs to the Pump House when Hoffer was presented with invoices for payment. 77. Prior to refusing to pay one-half of the invoice for $19,266.00, Hoffer, made the following payments based upon demands by Plaintiff: a) March 27, 2000, $2,145.31; b) May 9, 2000, $1,199.00 ; and c) September 25, 2000, $2332.13. 78. In fact, the Plaintiff did not possess the authority to execute the September 7, 1999 Agreement attached as Exhibit "A" to its Second Amended Complaint, as Plaintiff did not possess the requisite legal title or authority to encumber the property. 79. The September 7, 1999 Agreement is not valid. 80. Since the September 7, 1999 Agreement is not valid, Hoffer was not obligated to make any payments. 81. Even assuming the September 7, 1999 Agreement is valid, which Hoffer denies, Hoffer further, was not obligated to pay for any of the repairs to the Pump House, as the agreement itself does not require payment. 82. Almost immediately after Hoffer assumed possession of the Hoffer property, the fire suppression system was drained and rendered inoperative. 83. Further, inter alia, the Hoffer property was not required then or now to have a fire suppression property. 84. By the terms of the agreement, Hoffer was not legally obligated to make any payments to Plaintiff. 85. By virtue of the invalidity of the September 7, 1999 Agreement and the terms of the agreement itself, the Plaintiff has been unjustly enriched by the payments made by Hoffer. 86. It would be inequitable for the Plaintiff to retain the payments made by Hoffer that Plaintiff was not entitled to demand. 87. As a result of the foregoing, inter alia, Plaintiff has been unjustly enriched by Hoffer. 88. As a result of the foregoing, Hoffer is entitled to make demand for restitution from the Plaintiff for the amounts already paid in the amount of $5,676.44, plus interest and costs as provided by law. WHEREFORE, Hoffer respectfully requests that judgment be entered in its favor and against the Plaintiff in the amount of $5,676.44, plus interests and costs and for such other and further relief as deemed appropriate by this Court. submitted, actor P. St i , Dilworth Paxson LLP 305 N. Front Street, Suite 403 Harrisburg, PA 17101 (717) 236-4812 DATED: March 15, 2002 VERIFICATION I do hereby affirm that the averments in the foregoing are true and correct to the best of my knowledge, information and belief and further state that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Norman K.A. Hoffer CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing upon the following by first-class mail: Steven R. Williams, Esq. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 Victor P. Stabi Dated: March 15, 2002 o9 a 0 -Lo 2 mcc 9 U a? o OW U V c LL OE U I? 4 i \L N n d? Q?kl O c o Q .y d y FL- s Ca 2 o? I N 7 t E 0 0 o E N d R J ¢ '_ o' o` U N g c y •- 0 ' h N 0 a? ?-jr R i0 o Uacin Cc: aci o 9 J O ir J H Z ?O N 'O ?Cc a r o ? r ?a Z N C. U N LL G 0 OU V c LL O E m U C d m L Q J a L O T C ! O - N (? N 1 L r rrT N N i ..0 ? O N N a r i T ? Q V:3; N ? mE J >> d Q T ? Vi r y v U N p1? 1S ? m M :3 15 0 c °7 4) Vo 7 ? rn o Q y r ? O O r d 7 V1 N U Y Q C O d N Co d E of w U y a Z J C/) 0 C-i 3 S L l LY 1 ? Y O S J` a ce'l a yZ1?- f? ?o w? S ? N 3T mmnp'? m? m• -+m COy L1 oy 3S-/ (d ommoo o?' £m9 =0 yN 9 T N ? ?OTSNi 9 O,j N 9 OD 11 REALM R. R. AVENUE, LLP, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 2001 - 02241 CIVIL TERM NORMAN HOFFER and MATTHEW HOFFER, individually and Va 4660 ASSOCIATES, Defendants CIVIL ACTION - LAW PLAINTIFF'S REPLY TO NEW MATTER AND COUNTERCLAIM AND NOW, comes Plaintiff, Realm R. R. Avenue, LLP, by and through its attorneys, Wix, Wenger & Weidner, and files this Reply to New Matter and Counterclaim, stating the following, incorporating by reference as if fully set forth paragraphs 1-62 of its second amended complaint: Reply to New Matter 63. Defendants' paragraph 63 states a conclusion of law to which no reply is required. 64. Defendants' paragraph 64 states a conclusion of law to which no reply is required. 65. Defendants' paragraph 65 states a conclusion of law to which no reply is required. 66. Defendants' paragraph 66 states a conclusion of law to which no reply is required. 67, Defendants' paragraph 67 states a conclusion of law to which no reply is required. 68. Defendants' paragraph 68 states a conclusion of law to which no reply is required. 69. It is admitted only that Defendants have accurately recited a portion of the 1999 agreement. 70. Defendants' paragraph 70 states a conclusion of law to which no reply is required. 71. Defendants' paragraph 71 states a conclusion of law to which no reply is required. 72. Defendants' paragraph 72 states a conclusion of law to which no reply is required. 73. Defendants' paragraph 73 states a conclusion of law to which no reply is required. By way of further reply, Plaintiff incorporates herein by reference as if fully set forth paragraphs 9, 32, 55-58 of its Second Amended Complaint. 74. Defendants' paragraph 74 states a conclusion of law to which no reply is required. To the extent that a reply is required, it is specifically denied that the amounts claimed due in Plaintiff's Second Complaint are unreasonable or excessive, and strict proof is demanded. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter Judgment in its favor and against Defendants on Plaintiff's claims, set forth in the Second Amended Complaint. Reply to Counterclaim 75. Plaintiff incorporates herein by reference as if fully set forth paragraphs 1-62 of its Second Amended Complaint and paragraphs 63-74 hereof. 76. After a reasonable investigation, Plaintiff is without knowledge or information sufficient to reply to this paragraph, the same therefore being specifically denied and strict proof is demanded. 77. Admitted in part and denied in part. Plaintiff admits that Defendants made payments in the amounts set forth in Defendants' paragraph 77. Plaintiff specifically denies that the dates set forth therein are the dates on which such payments were made, and strict proof is demanded. By way of further reply, the payments made by Defendants, as alleged, were for repairs/maintenance that are unrelated to the claim of Plaintiff set forth herein. 78. Defendants' paragraph 78 states a conclusion of law to which no reply is required. 79. Defendants' paragraph 79 states a conclusion of law to which no reply is required. 80. Defendants' paragraph 80 states a conclusion of law to which no reply is required. To the extent that a reply is required, it is specifically denied that Defendants are not obligated to pay for the repairs set forth in Plaintiff's Second Amended Complaint, and strict proof is demanded. 81. Denied. Defendants' paragraph 81 states a conclusion of law to which no reply is required. To the extent that a reply is required, the 1999 Agreement is a writing which speaks for itself. Defendants' allegations are specifically denied to the extent they are not wholly consistent with the expressed terms of the Agreement. 82. Denied. It is specifically denied that at anytime, other than temporarily for repairs and/or maintenance, the fire suppression system was drained and rendered inoperative, and strict proof is demanded. 83. Defendants' paragraph 83 states a conclusion of law to which no reply is required. To the extent that this Court deems a reply is necessary, Defendants' paragraph 83 is specifically denied, and strict proof is demanded. To the contrary, upon information and belief, at all times relevant to Plaintiff's claim, the fire suppression system was in place, operable and serviced Defendants' property. By way of further reply, notwithstanding Defendants' allegation, Defendants paid their share of the repair and maintenance costs associated with the Pump House on each occasion requested by Plaintiff, except for the occasion that is the subject of this case. 84. Defendants' paragraph 84 states a conclusion of law to which no reply is required. 85. Defendants' paragraph 85 states a conclusion of law to which no reply is required. 86. Defendants' paragraph 86 states a conclusion of law to which no reply is required. 87. Defendants' paragraph 87 states a conclusion of law to which no reply is required. 88. Defendants' paragraph 88 states a conclusion of law to which no reply is required. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter Judgment in its favor and against Defendants on both Plaintiff's claims, set forth in the Second Amended Complaint, and upon Defendants' Counterclaims herein. Respectfully Wix, Wenger 4eyVeidner, P.C. gy: k-?- teven . Williams, I.D.#62051 508 IJ rth Second Street P.O. ox 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff Date: SI2loZ F:\srw\3238 (ALEX GRASS)\11654 (REALM R.R. AVE v. HOFFER)\DOCUMENTS\REPLY TO NM & CNTRCLM.doc VERIFICATION I, Alex Grass, General Partner of Plaintiff in the foregoing Complaint, have read the foregoing Complaint and hereby affirm and verify that it is true and correct to the best of my personal knowledge, information and belief. I verify that all of the statements made in the foregoing Complaint are true and correct and that false statements made therein may subject me to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. REALM R. R. AVENUE. LLP By: Ale r ss, eneral Partner Date: REALM R. R. AVENUE, LLP, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2001 - 02241 CIVIL TERM NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that the foregoing Reply of Plaintiff to Defendants' New Matter and Counterclaim was sent by first class mail, postage prepaid this day to the following: Victor P. Stabile, Esquire Dilworth Paxson 305 North Front Street Suite 403 Harrisburg, PA 17101 Attorneys for Defendants Wix, Wenger & Weidner By:?/(?_V?( tit Isadora Delgado, Legal Assist 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 DATE: Attorneys for Plaintiff 1l 5 ! Z ? crZ--- REALM R. R. AVENUE, LLP, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001 - 02,241 CIVIL TERM NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants CIVIL ACTION - LAW ORDER OF COURT AND NOW,, this day of ?)04, in consideration of the foregoing Petition, `7i Z6 a *& X a44/Esq. Esq., and Esq., are appointed arbitrators in the above-captioned action as prayed for. By the Court, G rg I side t Judge MWAU,SNNE.Id t? £Z :5 14V ' Z J3S h00Z A:dal0Pdc`7i UC`cid -3Hi d0 REALM R. R. AVENUE, LLP, Plaintiff V. NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001 - 02241 CIVIL TERM CIVIL ACTION - LAW PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Steven M. Williams, counsel for the Plaintiff in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the Plaintiff in the action is $9,633, plus pre- and post-judgment interest from May 14, 2000. The counterclaim of the Defendants in the action is $5,676.44, plus interest. The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Steven M. Williams, Esquire, of the firm, Wix, Wenger & Weidner and Victor P. Stabile, of the firm, Dilworth Paxson. WHEREFORE, Your Petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. i Respectfully S itted, WIX, WEN= & WEIDNER Date: c?lzato? # 62051 (717) 234-4182 ?Steveh M. Williams, I.D. 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 F:lIrIW238 (ALEX GRASS)\11654 (REALM R.R. AVE v. HOFFER)\DOCU ENT S\PET to LIST AARBITRATION.doc REALM R. R. AVENUE, LLP, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001 - 0,2241 CIVIL TERM NORMAN HOFFER and MATTHEW HOFFER, individually and t/a 4660 ASSOCIATES, Defendants CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that the foregoing Petition for Appointment of Arbitrators was sent by first class mail, postage prepaid this day to the following: Victor P. Stabile, Esquire Dilworth Paxson, LLP 112 Market Street 8"' Floor Harrisburg, PA 17101 Attorneys for Defendants Respectfully Submitted, WIX, WENGER & WEIDNER BY r *1ison Zortman ralegal 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff Date: ?•4f-(f N ? ?? L `^ P J (? r? l -TI .,ir. c., Curtis R. Long Prothonotary UlPffiCC of the Protbonotarp Cumberianb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor 01 + .22y! CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA RCP230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573