HomeMy WebLinkAbout11-3648 f TA i
Ronald L. Finck, Esquire (. {
Sup. Ct. I.D. #89985
METTE, EVANS & WOODSIDE
C0CINT Y
3401 North Front Street C ?' k .. t ?1
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P.O. Box 5950 1 •
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Harrisburg, PA 17110-0950
Phone: (717) 232-5000
Fax: (717) 236-1816
rlfinck@mette.com
RIVERSIDE CARDIOLOGY I, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. No. 1 ?. 3b 4 00 ckv^k
DIGITAL-INK, INC.,
Defendant
: CIVIL ACTION - LAW
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and Notice
are served, by entering a written appearance personally or by attorney and filing in writing with
the court your defenses or objections to the claims set forth against you. You are warned that if
you fail to do so the case may proceed without you and a judgment may be entered against you
by the court without further notice for any money claimed in the Complaint or for any other
claim or relief requested by the Plaintiff. You may lose money or property or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION
ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Cumberland County Bar Association
34 S. Bedford St.
Carlisle, PA 17013
Telephone: (717) 249-3166
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Ronald L. Finck, Esquire
Sup. Ct. I.D. #89985
METTE, EVANS & WOODSIDE
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
Phone: (717) 232-5000
Fax: (717) 236-1816
rlfinckgmette.com
RIVERSIDE CARDIOLOGY I,
Plaintiff
V.
DIGITAL-INK, INC.,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
CIVIL ACTION - LAW
COMPLAINT
The Plaintiff, Riverside Cardiology I ("Plaintiff') by and through its attorneys, METTE,
EVANS & WOODSIDE, files this Complaint against the Defendant, Digital-Ink, Inc.
("Defendant"), averring as follows:
Parties
1. Plaintiff is a Pennsylvania general partnership with a principal place of business at
1000 North Front Street, Wormleysburg, PA 17043.
2. Defendant is a Pennsylvania business corporation conducting business at 230
Gettysburg Street, Dillsburg, PA 17019.
Jurisdiction and Venue
3. Jurisdiction and venue are appropriate in this Court because the events and
transactions out of which Plaintiff's cause of action arose occurred in Cumberland County,
Pennsylvania..
BACKGROUND
4. Plaintiff is the owner of a commercial building located at 1000 North Front Street,
Wormleysburg, PA 17043 (the "Building").
5. By Lease Agreement dated July 7, 2003 as amended April 1, 2008 (the "Lease
Agreement") Plaintiff leased to Defendant 1182 square feet in the Building (the "Premises"). A
true and correct copy of the Lease Agreement is attached hereto as Exhibit "A" and made a part
hereof by reference.
6. The Lease Agreement provided for annual base rent in the amount of $18.50 per
square foot ($18.50 x 1182 = $21,867) for the period beginning July 1, 2008 until either party
gave the other 180 days' notice to quit.
7. Rent was to be paid in equally monthly installments of $1,822.25.
8. Rent was due on the first day of each month.
9. Pursuant to paragraph 25 of the Lease Agreement, interest accrues at the prime
rate plus one (I%) percent from the date due.
10. The Defendant fell behind in its monthly rental payments beginning with the
October 1, 2010 payment.
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11. Upon demand, Defendant failed to bring its rental payments current.
12. On March 25, 2011, Plaintiff served the Defendant with a Notice to Quit. A true
and correct copy of the Notice to Quit is attached hereto as Exhibit `B' and made a part hereof by
reference.
13. Defendant vacated the Premises on or about April 5, 2011.
14. As of April 30, 2011, the Defendant owes $12,945.19 for monthly rent due for the
period beginning October 1, 2010 and ending March 31, 2011.
COUNT I - BREACH OF CONTRACT
15. The allegations of all paragraphs above are incorporated herein by reference as if
fully set forth.
16. The Lease Agreement is a binding contract between Plaintiff and Defendant that
is supported by adequate consideration.
17. Defendant's failure to pay its monthly rent for the period beginning October 1,
2010 until March 31, 2011 constitutes a breach of the Lease Agreement.
18. The prime rate from October 1, 2010 until March 31, 2011 was 3.5%.
19. Pursuant to the terms of the Lease Agreement, interest accrued on each monthly
payment from the first of the month until paid at the rate of 4.5% per month.
20. Plaintiff has suffered damages as a direct and proximate result of Defendant's
breach of the Lease Agreement.
21. Paragraph 25 of the Lease Agreement provides that if the Plaintiff consults an
attorney for the collection of any sums due from Defendant, Defendant is responsible for
reimbursement of reasonable attorneys' fees and court costs.
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22. To date, Plaintiff has incurred or expects to incur approximately $2,000.00 in
attorneys' fees and other costs in attempting to compel payment from the Defendant. Said fees
and costs are continuing.
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in its favor
and against the Defendant, in the amount of $14,945.19, together with pre judgment interest at
the rate of 4.5% and post judgment interest at the legal rate, additional attorneys' fees, costs and
such other relief as this Court shall deem just and appropriate.
Respectfully submitted,
METTE, EVANS & WOODSIDE
By: ?,qaxc d. "?
Ronald L. Finck, Esquire
Sup. Ct. I.D. No. 89985
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - Phone
(717) 236-1816 - Fax
rlfinck@mette.com
Attorneys for Plaintiff
Date: April 13, 2011
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VERIFICATION
I, William Strouse, am an authorized agent of Riverside Cardiology I and am authorized
to make this verification. I have read the foregoing document and verify that the facts set forth
therein are true and correct to the best of my knowledge, information and belief. To the extent
that the foregoing document and/or its language is that of counsel, I have relied upon counsel in
making this Verification.
I understand that any false statements made herein are subject to the penalties of 18 Pa.
C.S.A. §4904 relating to unsworn falsification to authorities.
DATED: 5"
LLIAM STROUSE
?X?BiT
LEASE AGREEMENT
Dated July 7, 2003
Between
RIVERSIDE CARDIOLOGY 1,
a Pennsylvania General Partnership
and
DIGITAL-INK, INC
The submission of this Lease to Tenant shall not be construed as an offer,
nor shall Tenant have any rights with respect thereto, unless and until Landlord shall
execute a copy of this Lease and deliver the same to Tenant.
COMMERCIAL LEASE
THIS COMMERCIAL LEASE, made this 7TH day of July, 2003 and
effective July 7, 2003, by and between RIVERSIDE CARDIOLOGY 1, a Pennsylvania
general partnership, with its principal place of business at 1000 North Front Street,
Wormleysburg, Cumberland County, Pennsylvania (hereinafter called "Landlord").
AND
DIGITAL-INK, INC., a Pennsylvania corporation (hereinafter called
"Tenant"), with its principal place of business at 1000 North Front Street,
Wormleysburg, Pennsylvania 17043.
WITNESSETH:
WHEREAS, Landlord is the legal owner of Unit No. 2, Front Street Office
Condominium, situate in the Borough of Wormleysburg, Cumberland County,
Pennsylvania; and
WHEREAS, Landlord and Tenant agree that Landlord shall lease to
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Tenant and Tenant shall lease from Landlord, a portion of Unit No. 2 more fully
described on Exhibit A, attached hereto and made a part hereof consisting of 1,182
square feet, together with a portion of the Common Elements appurtenant to said
Units, upon terms and conditions hereinafter provided; and
WHEREAS, Landlord and Tenant desire to confirm their understanding in
writing.
NOW, THEREFORE, the parties hereto, each intending to be legally
bound hereby, agree as follows:
1. Leased Premises. The premises hereby demised (hereinafter called
"Leased Premises") consisting of that portion of Unit No. 2 , described on Exhibit A
attached hereto and made a part hereof, consisting of 1,182 square feet, together with
the Common Elements appurtenant thereto, situate on the 2nd floor of a five-story
office building ("Building"). Further, Tenant shall have the right, in common with
Landlord, other tenants, guests and invitees to the uninterrupted right of access
thereto by means of all passageways, corridors, stairways, entrances and elevators in
the Building and all doorways necessary or convenient to affect such access, together
with the right in common with Landlord, its tenants, guests and invitees to the
uninterrupted right of access to North Front Street in the Borough of Wormleysburg.
2. Term. This lease shall commence on the date hereof and shall
continue for five (5) years, unless sooner terminated pursuant to the provisions hereof.
The term of this lease may be terminated by either party by giving written notice to the
other party at least one hundred eighty (180) days prior to the date of termination.
3. Rent and Effective Date.
A. Effective Date. Rent shall commence for the Leased Premises on July
7, 2003.
B. Rent. The annual base rent payable for the Leased Premises during
the term hereof shall be as follows:
(1) The annual base rent payable for the Leased Premises effective
July 7, 2003 shall be the sum of $17.50 per square foot x 1,182 square feet =
$22,685 per year, which said annual base rent shall be payable in consecutive
equal monthly installments of $1,723.75, which said monthly installments shall be
paid in advance on the 1 st day of each month to Landlord or Landlord's duly
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authorized agent or representative.
(2) Effective July 1, 2004 the rent shall increase to $18.00 per
square foot. Effective July 1, 2005 the rent shall increase to $18.50 per square
foot and shall remain at that level until July 1, 2008.
Tenant shall pay all rent herein provided without demand or without
abatement, deduction or setoff. Annual base rent for any period of a partial month,
including the first month or final month of the term, shall be apportioned based on the
number of actual calendar days in the month.
4. Services. Landlord reserves the right to stop or suspend any or all
utility services for the purpose of repair, alterations, or improvements and shall not be
liable for any loss or damage suffered by Tenant as a result thereof. Except in case of
emergency, such stoppage or suspension shall only be for such a period or periods of
time as is reasonably necessary to make repairs, replacements and improvements
and inspections. Except in the case of emergency, Landlord shall give Tenant
forty-eight (48) hours prior notice of its intention to discontinue any service. Any
discontinuance of service shall be at the lease possible interference with Tenant's
enjoyment and use of the Leased Premises and the conduct of its business thereon.
Landlord shall pay all utilities including, but not limited to, water, electricity,
gas, if applicable, and other utilities or service used or consumed by Tenant on the
Premises except the Tenant shall be responsible for and shall pay for all costs
associated with providing telephone services to the Leased Premises.
5. Subordination. This Lease is expressly subject to all present and future
mortgages or other security instruments encumbering Unit No. 2. Upon written
request from Landlord, Tenant agrees, within five (5) days, to execute such documents
as may be required by Landlord or Landlord's mortgagee shall warrant that as long as
Tenant does not wrongfully withhold the payment of rent or fail in the performance of
any of the terms, covenants and conditions of this Lease that said future mortgagee
will not disturb Tenant's possession of the Leased Premises and that Tenant shall and
may peacefully and quietly have, hold and enjoy the Leased Premises for the term of
this Lease or any renewal thereof.
6. Maintenance and Repair. Landlord, through the Unit Owners'
Association, shall keep and maintain the Building, together with the adjoining walks,
parking areas, access drives and grounds in good and serviceable repair and
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condition, including snow removal, ordinary wear and tear accepted. The
maintenance responsibility of Landlord, through the Unit Owners' Association, for the
Building, together with the adjoining walks, parking areas, access drives and grounds,
shall be the same standard as other first-class office buildings located within the
Harrisburg area. Interior decoration of the Leased Premises, to include wall coverings,
Floor coverings and the like, shall, however, be the responsibility of Tenant, after the
Occupancy Date; provided, however, that damage to the Buildings, together with the
adjoining walks, parking areas, access drives and grounds, occasioned by negligence
of Tenant, its agents, contractors, guests, subtenants or invitees shall be repaired by
Landlord as a charge to Tenant and payment thereof shall be collectable as additional
rent hereunder. Landlord shall be responsible for the negligence of its agents,
employees and contractors. Landlord, through the Unit Owners Association shall be
responsible for constructual components of the Building. Landlord shall repair any
latent or patent defects discovered during the first year of occupancy and reported to
Landlord by Tenant.
7. Rules and Regulations. The Executive Board of the Unit Owners'
Association reserves the right pursuant to the Declaration and Bylaws to promulgate
rules and regulations in connection with the use of the Building. This Lease is
specifically subject to all future rules and regulations promulgated by the Executive
Board.
8. Assignment and Subletting. Tenant shall not have the right, except as
hereinafter provided, to assign this Lease or sublet the Leased Premises or any
portion thereof without the prior written consent of Landlord which said consent may
be withheld in Landlord's sole discretion. The use or occupancy of the Leased
Premises or the assignment of this Lease to an affiliate or subsidiary of Tenant shall
be permitted without Landlord's prior approval.
9. Use of the Leased Premises. Tenant shall use the Leased Premises
as a business office together with related administrative functions or any other lawful
purpose provided that said use does not violate the permitted use requirements within
the zoning district of the Borough of Wormleysburg.
10. Default by Tenant. If Tenant (regardless of the pendency of any
bankruptcy, reorganization, receivership, insolvency or other legal or administrative
proceeding which may prevent Tenant from complying with the terms of this Lease)
shall allow the rent or additional rent to be in arrears more than five (5) days after
written notice of such delinquency, or shall remain in default of any other covenant,
agreement or obligations, including, without limitation, violation of any Rules and
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Regulations, for a period of fifteen (15) days after written notice from Landlord, or
should any person other than Tenant secure possession of the Leased Premises, or
any part thereof, except in accordance with the terms and provisions of this Lease,
Landlord may, at its option, without notice to Tenant, terminate this Lease, or in the
alternative, Landlord may re-enter and take possession of the Leased Premises and
remove all persons and property therefrom, without being deemed guilty of any
manner of trespass, and relet the Leased Premises or any part thereof, for all or part
of the remainder of said term, to a party satisfactory to Landlord, and at such monthly
rental as Landlord may, with reasonable diligence, be able to secure. Should Landlord
be unable to relet after reasonable efforts to do so, or should such monthly rental be
less than the rental Tenant was obligated to pay under this Lease, or any renewal
thereof, plus the expenses of reletting, then Tenant shall pay the amount of such
deficiency to Landlord.
11. Default by Landlord. If Landlord defaults in the performance of any
term, covenant or condition required to be performed by Landlord under the terms of
this Lease, Tenant may elect either of the following:
A. After not less than five (5) days written notice to Landlord,
Tenant may remedy such default by any necessary action and in connection with
such remedy may pay any costs thereof; all sums expended or obligations
incurred by Tenant in connection therewith shall be paid by Landlord to Tenant
on demand or, if not paid within then five (5) days of demand, Tenant may abate
rent thereof, or
B. Elect to terminate this Lease by giving at least thirty (30) days
prior written notice to Landlord of such intention, thereby terminating this Lease
on the date designated in such notice, unless Landlord shall have cured such
default prior to the expiration of the thirty (30) day period.
12. Certificates. Tenant shall, without charge, at the request of Landlord,
from time to time, execute certificates to any mortgagee, assignee or purchasers of
Landlord:
A. That this Lease is unmodified and in full force and effect or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modification or modifications;
B. The dates, if any, to which rent or other changes, if any,
hereunder have been paid in advance;
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C. Whether Landlord is or is not, as the case may be, in default of
the performance of any of the covenants or conditions on Landlord's part to be
performed;
D. Such other pertinent information with respect to this Lease as
Landlord may reasonably request.
13. Quiet Enioyment. Landlord covenants to allow Tenant to quietly and
peacefully enjoy the possession of the Leased Premises, during the term or any
renewals thereof, free from interference or interruption of Landlord or any other person
claiming through or under Landlord.
14. Insurance. Landlord shall, through the Unit Owners' Association and
by Landlord, provide adequate insurance against damage to or destruction of the
Building, and Unit, including the leased Premises, by or on account of the elements,
fire, wind or other peril commonly insured against under coverage known as "extended
coverage," but all personal property of any kind or description whatsoever in the
Leased Premises shall be at Tenant's sole risk and Landlord shall not be liable for
damage done to or loss of such personal property or damage or loss suffered by the
business or occupation of Tenant arising from the acts or negligence of co-tenants or
other occupants of the Building, or of employees of Tenant or of other persons or from
bursting, overflowing, or leaking of water pipes, sewer or steam pipes or from the
heating or plumbing fixtures or from electric wires, or from gas or odors, or caused in
any other manner whatsoever except in case of gross negligence on the part of
Landlord.
Tenant shall provide, at Tenant's expense, liability insurance, with
coverage acceptable to Landlord, for death or bodily injury within the Leased
Premises.
15. Destruction of Leased Premises - Partial. If the Leased Premises
shall be totally or partially damaged by fire or other cause, this lease shall terminate
and Tenant shall be released from any further obligations under this Lease.
16. Notice of Damage to Leased Premises. If the Leased Premises shall
be damaged or destroyed by fire, flood or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
17. Condemnation. If, during the term of this Lease or any extension
thereof, all or any portion of the Leased Premises shall be taken for any public or
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quasi-public use under any governmental law, ordinance or regulation, or by right of
eminent domain, or should be sold to the condemning authority under threat or
condemnation, this Lease shall terminate, effective as of the date of the actual taking
of possession of said premises by the condemning authority and Tenant shall be
released from any further obligations under this Lease.
18. Indemnity. Tenant agrees to indemnify and hold Landlord harmless
against any and all claims, demands, damages, costs and expenses, including
reasonable attorney's fees for the defense thereof, arising from the conduct or
management of Tenant's business in the Leased Premises or from any act or
negligence of Tenant, its agents, contractors, employees or subtenant in or about the
Leased Premises. In case of any action or proceedings brought against Landlord by
reason of any such claim, Tenant, on notice from Landlord, covenants to defend such
action or proceedings by counsel acceptable to Landlord. The foregoing
indemnification provision shall not apply to negligence by Landlord, its agents,
employees, contractors, other tenants or invitees.
19. Landlord's Right of Entry. Tenant shall permit Landlord and its agents
to enter into and upon the Leased Premises as reasonable times for the purpose of
inspecting the same, cleaning windows and performing other janitorial services, or for
the purpose of maintaining the Building, or for the purpose of making repairs to any
other portion of said building, including the erection of scaffolding, props or other
mechanical devices, or for the purpose of posting notice of non-liability for repairs,
without any rebate of rent to Tenant for damages for any loss of occupation or quiet
enjoyment of the Leased Premises thereby occasioned; and shall permit Landlord, at
any time within thirty (30) days prior to the expiration of this Lease, to put upon the
windows and doors of the Leased Premises any usual or ordinary "to let" or "to lease"
signs. Landlord and its agents may, during said last mentioned period, at reasonable
hours, enter upon the Leased Premises and exhibit the same to prospective tenants.
Landlord shall employ reasonable care and shall not disturb Tenant's business.
20. No Merger. The voluntary or other surrender of this Lease by Tenant,
or a mutual cancellation thereof, shall not work a merger and shall operate as an
assignment to Landlord of any or all such permitted subleases or subtenancies.
21. No Waiver. The waiver by Landlord of any breach of any term,
covenant or condition herein contained shall not be deemed to be a waiver of such
term, covenants or conditions or any subsequent breach of the same or any other
term, covenant or condition herein contained. The subsequent acceptance of rents
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hereunder by Landlord shall not be deemed to be a waiver by Landlord of any
preceding breach of any term, covenant or condition of this. Lease, other than the
failure of Tenant to pay the particular rental so accepted, regardless of Landlord's
knowledge or such preceding breach at the time of acceptance of such rent.
22. Hold Over. If Tenant holds possession of the Leased Premises after
the term of this Lease or any extension thereof, Tenant shall become a tenant for
month-to-month upon the terms herein specified, at a monthly rent equal to one
hundred fifty (150%) percent of the monthly rental payable for the. month next
preceding the month of such termination, which said rent shall be payable in advance
on the first day of each month and said tenancy shall continue until terminated by
either Landlord or Tenant by at lease thirty (30) days prior written notice and the date
of termination shall be the last day of the month following the requisite notice.
23. Remedies Cumulative. It is understood and agreed that the remedies
herein given to Landlord shall be cumulative and the exercise of any one remedy by
Landlord shall not be to the exclusion of any other remedy. Each and all of said
remedies shall be exercisable repeatedly and as often as may be necessary.
24. Surrender of Leased Premises. Tenant shall, upon the expiration or
sooner termination of the original term or any extension thereof, promptly surrender
and deliver the Leased Premises to Landlord without demand thereof in good
condition, ordinary wear and tear excepted. Tenant shall remove or cause to be
removed all personal property from the Leased Premises.
25. Interest and Collection Expenses. Interest shall accrue on any
monies due from Tenant to Landlord from the date the same are due (including
Minimum Rent and monies advanced by Landlord to others on account of the failure of
Tenant to perform hereunder) at the annual prime interest rate as established from
time to time by M&T Bank, Harrisburg, Pennsylvania, plus one (1 %) percent per
annum for a period of thirty (30) days. If Landlord consults any attorney for the
collection of any sums due from Tenant or others in connection with Tenant's
performance hereunder, Tenant shall, whether or not proceedings are instituted,
reimburse Landlord the reasonable attorney's fees and court costs, if any.
26. Estoppel Certificates. At any time and from time to time, each party
agrees, upon request in writing from the other party, to promptly and without delay
execute, acknowledge and deliver to such party a statement in writing certifying that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and stating the
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modifications) and the date to which the Rent and other charges hereunder have been
paid. In addition, Tenant agrees to furnish Landlord, upon request a letter addressed
to Landlord's mortgagee or financial institution, giving the following information or any
part thereof requested by Landlord: (i) that Tenant has accepted possession of the
Leased Premises, that the Lease term has commenced, that Tenant is occupying the
Leased Premises and that Tenant knows of no default under the Lease by the
Landlord, and (ii) the actual commencement date of the Lease and the expiration date
of the Lease. In the event the Tenant fails to provide such letter as above-described
within ten (10) days after Landlord's written request thereof, Tenant does hereby
make, constitute and irrevocably appoint Landlord as its attorney-in-fact and in its
name, place and stead so to do.
27. Waiver of Subrogation. Landlord and Tenant hereby release the other
from any and all liability or responsibility to the other or anyone claiming through or
under them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any of the extended coverage or supplementary contract casualties,
even if such fire or other casualty shall have been caused by the fault or negligence of
the other party, or any one for whom such party may be responsible, provided,
however, that this release shall be applicable and in force and effect only with respect
to loss or damage occurring during such time as the releasor's policies shall contain a
clause or endorsement to the effect that any such release shall not adversely affect or
impair said policies or prejudice the right of the releasor to recover thereunder. Each
party shall obtain insurance policies containing such waiver of subrogation clause(s)
for all insurance policies which relate to the Premises or use of the Premises.
28. Mortgagees' Right to Cure Landlord's Default. Tenant agrees that in
the event the Landlord is in default under this Lease, any mortgagee or trustee under a
deed of trust of Landlord's interest in the Leased Premises, and the landlord under any
ground or underlying lease which includes the Leased Premises, shall be permitted
(but not required) to enter the Leased Premises during normal business hours for the
purpose of correcting or remedying such default, and Tenant agrees to accept
performance by such mortgagee, trustee, or ground or underlying landlord in lieu of
performance by the Landlord. Tenant further agrees that, from and after specific
written request by Landlord to do so (which request sets forth the name and address
of any mortgagee, trustee or ground or underlying landlord), Tenant will,
simultaneously with the giving of any notice to Landlord as required or permitted
hereunder, give a copy of such notice to such mortgagee, trustee or ground or
underlying landlord and that any such notice to Landlord shall not be effective unless
Tenant has simultaneously given such notice to such mortgagee, trustee or ground or
underlying landlord.
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29. Financing. Tenant agrees to consent to, and to execute and deliver
promptly upon each request from Landlord, such reasonable amendments to this
Lease as may be requested by any bank, savings and loan association, insurance
company or other institutional lender providing bona fide mortgage loans to Landlord in
connection with the Leased Premises, or by any ground landlord (if any) of the land
appurtenant thereto, provided, however, that such amendments do not impair or
otherwise materially affect Tenant's leasehold interest in the Leased Premises, or
Tenant's option to purchase the Premises, and provided further that such amendments
do not reduce, increase or change the term of this Lease, nor affect the rate or cost of
rental and other obligations of Tenant hereunder, nor create any material obligations,
liabilities, duties or responsibilities of any nature whatsoever upon the Tenant greater
than those to which Tenant is herein committed.
30. Additional Instruments. Tenant shall, at the request of Landlord,
execute such additional instruments that Landlord or Landlord's mortgagee may
request from time to time or as may be required or convenient hereunder, not
inconsistent herewith.
31. Landlord's Covenant of Title and Quiet Eniovment. Landlord
covenants and warrants that, upon the Term of the Lease commencing, Landlord shall
have full right and lawful authority to enter into this Lease for the full Term hereof; that
Landlord will be lawfully seized of the entire Leased Premises and will have good title
thereto; and that, at all times when Tenant is not in default under the terms and during
the term of this Lease, Tenant's quiet and peaceable enjoyment of the Leased
Premises shall not be disturbed or interfered with by anyone. Landlord, in person or
by agent, shall be permitted to enter upon the Leased Premises at reasonable times to
examine the same or to make such repairs as are required hereunder.
32. Successors and Permitted Assigns. This Lease shall inure to the
benefit of and shall bind the respective successors and permitted assigns of the
parties to the extent that the parties' rights hereunder may succeed and be assigned
according to the terms hereof.
33. Waiver. No waiver of any condition or legal right or remedy shall be
implied by the failure of Landlord to declare a forfeiture, or for any other reason, and
no waiver of any condition or covenant shall be valid unless it be in writing signed by
the Landlord. No waiver by Landlord in respect to one tenant of the building in which
the Leased Premises are located shall constitute a waiver in favor of any other tenant,
nor shall the waiver of a breach of any condition be claimed or pleased to excuse a
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future breach of the same condition or covenant. The mention in this Lease of any
specific right or remedy shall not preclude Landlord from exercising any other right or
from having any other remedy or from maintaining any action to which it may be
otherwise entitled either at law or in equity; and for the purpose of any suit by Landlord
brought or based on this Lease, this Lease shall be construed to be a divisible
contract, to the end that successive actions may be maintained as successive periodic
sums shall mature under this Lease, and it is further agreed that failure to include in
any suit or action any sum or sums then matured shall not be a bar to the maintenance
of any suit or action for the recovering of said sum or sums so omitted.
34. Service of Notice. If, at any time after the execution of this Lease, it
shall become necessary or convenient for one of the parties hereto to serve any
notice, demand or communication upon the other party, such notice, demand or
communication shall be in writing signed by the parties serving the same, sent by
United States certified mail, return receipt requested, postage prepaid, or by Federal
Express, Purolator, Emery Air Freight, UPS, U. S. Express Mail, or other similar
overnight courier which delivers only upon the signed receipt of the addressee. The
time of giving of any notice shall be the time of receipt thereof by the addressee or any
agent of the addressee.
Notice to Landlord
Riverside Cardiology I
1000 North Front Street
Wormleysburg, PA 17043
Notice to Tenant
Digital-Ink, Inc.
1000 North Front Street
Wormleysburg, PA 17043
36. Corporate Compliance. The persons executing this Lease on behalf
of Tenant hereby covenant and warrant that: Tenant is a duly-constituted corporation
qualified to do business in the State of Pennsylvania; all Tenant's franchises and
corporate taxes have been paid to date; all future forms, reports, fees and other
documents necessary for Tenant to comply with applicable laws will be filed by Tenant
when due; and such persons are duly authorized by the board of directors of such
corporation to execute and deliver this Lease on behalf of the corporation.
37. Pennsylvania Law. This Lease shall be construed and governed
under the laws of the Commonwealth of Pennsylvania.
38. Entire Agreement. This Lease represents the entire agreement between the
parties hereto. There are not agreements, negotiations or representations, oral or written, other
than as set forth herein.
11
39. Parking. Tenant shall have a right to a number of reserved parking spaces as
assigned by the building's condo association. Landlord will not take away
tenant's currently assigned parking spaces.
IN WITNESS WHEREOF, Riverside Cardiology I and the DIGITAL-INK, Inc., each by their
duly authorized representatives, have caused this Lease to be executed on the day and year
first above written.
LANDLORD:
RIVERSIDE CARDIOLOGY I, a
Pennsylvania General Partnership
7 /,
game: Date
Title:
TENANT
DIGITAL-INK, INC.
Na Date
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Amendment to Lease
On this, the l' Day of April, 2008, between Riverside Cardiology I, a Pennsylvania
General Partnership, and Digital-Ink, a Pennsylvania corporation, both parties agree
to continue the commercial lease for Suite 280, at 1000 N. Front Street,
Wormleysburg, PA 17043, under the terms of the original lease dated July 7, 2003
with the following two exceptions:
3) The term of the lease shall not end upon the fifth anniversary of the original
lease, but rather shall continue indefinitely until terminated by either party
with 180 days notice.
4) The lease rate shall remain at $18.50/sq. ft. unless both parties agree to change
it at a future date with 180 days notice.
LANDLORD:
Riverside Cardiology 1, a Pennsylvania General Partnership
Aril 1 2008
William Strouse Date
TENANT:
Digital-Ink, a Pennsylvania Corporation
<?? April 1. 2008
Jo issley Date
?xth??'?
NOTICE TO QUIT
Name of Landlord: RIVERSIDE CARDIOLOGY I
Name of Tenant: DIGITAL-INK, INC
Date of Lease: July 7, 2003, amended April 1, 2008
Leased Premises: 1000 North Front Street, Unit 2
Wormleysburg, PA 17043
Date of NOTICE TO QUIT: MARCH 25, 2011
To: Digital-Ink, Inc.
1000 North Front Street, Unit 2
Wormleysburg, PA 17043
YOU HAVE VIOLATED THE CONDITIONS OF YOUR LEASE AGREEMENT BY
REPEATEDLY FAILING TO MAKE PAYMENT IN THE AMOUNT OF $1,822.25 PER
MONTH.
YOU MUST VACATE THE LEASED PREMISES WITHIN FIFTEEN (15) DAYS OF
THE DATE OF THIS NOTICE.
IF YOU DO NOT GIVE POSSESSION OF THE LEASED PREMISES TO THE
LANDLORD WITHIN FIFTEEN (15) DAYS, LANDLORD WILL BEGINA LAWSUIT IN
COURT TO HAVE YOU REMOVED FROM THE LEASED PREMISES.
METTE, EVANS & WOODSIDE
By: (9M&Lk -J. eJA14,Z.1t
Ronald L. Finck, Esquire
Sup. Ct. I.D. No. 89985
3401 North Front Street
P. 0. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - Phone
(717) 236-1816 - Fax
rlfinck@mette.com
Attorneys for Riverside Cardiology I
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IN THE COURT OF COMMON PLEAS OF -10 TA
CUMBERLAND COUNTY, PENNSYLVANIA
?,a, P V, 2 FRi ! v 4
RIVERSIDE CARDIOLOGY 1,
-,UHB:ERLAND COUNT""
Plaintiff No. 11-3648 Civil Term E'EI°I41SYLVANIA
V.
CIVIL ACTION - AT LAW
DIGITAL-INK, INC.,
Defendant
NOTICE TO PLEAD
TO: Riverside Cardiology I
c/o Ronald L. Finck, Esq.
Mette, Evans & Woodside
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
YOU ARE HEREBY NOTIFIED TO PLEAD TO
THE ENCLOSED ANSWER WITH NEW
MATTER WITHIN TWENTY (20) DAYS FROM
THE DATE OF SERVICE HEREOF OR A
DEFAULT JUDGMENT MAY BE ENTERED
AGAINST YOU.
CUNNINGHAM & CHERNICOFF, P.C.
By
Robert E. Chernicoff, Esquire
PA Supreme Court ID# 23380
Nicholas A. Fanelli, Esquire
PA Supreme Court ID# 308136
CUNNINGHAM & CHERNICOFF, P.C.
2320 North Second. Street
Harrisburg, PA 17110
Date: May / , 2011 Telephone: (717) 238-6570
1
Robert E. Chernicoff, Esquire
PA Supreme Court ID #23380
Nicholas A. Fanelli, Esquire
PA Supreme Court ID# 308136
CUNNINGHAM & CHERNICOFF, P.C.
2320 North Second Street
Harrisburg, PA 17110
Telephone: (717) 238-6570
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY PENNSYLVANIA
RIVERSIDE CARDIOLOGY I,
Plaintiff No. 11-3648 Civil Term
V.
CIVIL ACTION - AT LAW
DIGITAL-INK, INC.,
Defendant
ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT
NOW COMES the Defendant, Digital-Ink, Inc.., by and through its attorneys,
Cunningham & Chernicoff, P.C., and states as its Answer with New Matter to Plaintiff's
Complaint as follows:
Parties
1. Admitted, upon information and belief.
2. Admitted.
Jurisdiction and Venue
3. Admitted.
Background
4. Admitted, upon information and belief.
2
5. Admitted. By way of further reply, the averments of this paragraph refer to a writing,
which is the best evidence concerning such averments.
6. Admitted. By way of further reply, the averments of this paragraph refer to a writing,
which is the best evidence concerning such averments.
7. Admitted. By way of further reply, the averments of this paragraph refer to a writing,
which is the best evidence concerning such averments.
8. Admitted. By way of further reply, the averments of this paragraph refer to a writing,
which is the best evidence concerning such averments.
9. Admitted. By way of further reply, the averments of this paragraph refer to a writing,
which is the best evidence concerning such averments.
10. Denied as stated.
11. Denied as stated.
12. Admitted. By way of further reply, the averments of this paragraph refer to a writing,
which is the best evidence concerning such averments.
13. Admitted.
14. This allegation is a conclusion of law to which no response is required. To the
extent that a response is judicially deemed to be required, it is specifically denied. By way of
further answer, Defendants believe, and therefore aver, that all payments made to date may not
have been properly credited and a strict accounting thereof is hereby demanded, if relevant, at the
time of trial. Furthermore, Defendants specifically deny the amount set forth for as being owed,
as Plaintiff has not set forth how such amount was calculated.
3
Count I - Breach of Contract
15. Defendant hereby incorporates by reference all of the above paragraphs as if more
fully set forth herein at length.
16. The averments of this paragraph are legal conclusions to which no response is
required.
17. The averments of this paragraph are legal conclusions to which no response is
required. If, and to the extent a response is judicially deemed to be required, Defendant
specifically denies the averments of this paragraph.
18. Denied.
19. Denied.
20. The averments of this paragraph are legal conclusions to which no response is
required. If, and to the extent a response is judicially deemed to be required, Defendant
specifically denies the averments of this paragraph.
21. Admitted. By way of further reply, the averments of this paragraph refer to a
writing, which is the best evidence concerning such averments.
22. After reasonable investigation, Defendant is without sufficient knowledge or
information to form a belief as to the truth of the averments of this paragraph.
WHEREFORE, Defendant, Digital-Ink, Inc., respectfully requests that this Honorable
Court dismiss Plaintiff s Complaint with prejudice and grant Defendant such other relief as may
be just and proper.
4
NEW MATTER
23. Paragraphs 1-16, inclusive, of Defendant's Answer are incorporated herein by
reference.
24. Plaintiffs Complaint fails to state a claim upon which relief may be granted.
25. Plaintiffs Complaint may be barred by the applicable statute of limitations.
26. Plaintiffs Complaint maybe barred by the doctrine of accord and satisfaction.
27. Plaintiffs Complaint may be barred by the doctrine of release.
28. Plaintiffs Complaint maybe barred by the doctrine of estoppel.
29. Plaintiffs Complaint may be barred by the doctrine of waiver.
WHEREFORE, Defendant, Digital-Ink, Inc.., respectfully requests that this Honorable
Court dismiss Plaintiff's Complaint with prejudice and grant Defendant such other relief as may
be just and proper.
Respectfully submitted,
CUNNINGHAM & CHERNICOFF, P.C.
By:
Robert E. Chernicoff, Esquire
PA ID No: 23380
Nicholas A. Fanelli, Esquire
PA ID No: 308136
2320 North Second Street
Harrisburg, PA 17110
Date: May 2011 Telephone: (717) 238-6570
5
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
RIVERSIDE CARDIOLOGY 1,
Plaintiff No. 11-3648 Civil Term
V.
CIVIL ACTION - AT LAW
DIGITAL-INK, INC.,
Defendant
VERIFICATION
I, Jack Nissley, authorized agent of Digital-Ink, Inc., the Defendant in the foregoing
action do hereby affirm that the statements made in the foregoing are true and correct to the best
of my knowledge, information and belief. I understand that this Verification is made subject to
the penalties of 18 Pa. C.S.A., Section 4904, relating to unsworn falsification to authorities.
C?r':Z ?X? -
By: Jac ssley
For: D' tal-Ink, Inc.
Date: May 10, 2011
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
RIVERSIDE CARDIOLOGY I,
Plaintiff
V.
DIGITAL-INK, INC., :
Defendant
CUNNINGHAM & CHERNICOFF, P.C.
CERTIFICATE OF SERVICE
I, Julieanne Ametrano, Legal Assistant with the law firm of Cunningham & Chernicoff,
P.C., certify a true and correct copy of the ANSWER WITH NEW MATTER TO
PLAINTIFF'S COMPLAINT will be served by first class U.S. Mail and/or electronic means
on the following:
Riverside Cardiology I
c/o Ronald L. Finck, Esq.
Mette, Evans & Woodside
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
Date: May It , 2011
F:\Home\NFANELLI`,Documents\Digital Ink, Inc\Answer.wpd
No. 11-3648 Civil Term
CIVIL ACTION - AT LAW
By:
6
Julieanne Ametrano
1
4' r
d fiW10{r'nf
Ronald L. Finck,Esquire ,
Sup.Ct. I.D.#899851F" ��' +'T
METTE,EVANS&WOODSIDE CUMBERL.4NU
3401 North Front Street PE1Ys YL VA Jq1A ''
P.O.Box 5950
Harrisburg,PA 17110-0950
Phone: (717)232-5000
Fax: (717)236-1816
rlfinck @mette.com
RIVERSIDE CARDIOLOGY I, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
VS. NO. 11-3648 CIVIL TERM
DIGITAL-INK, INC., CIVIL ACTION - LAW
Defendant
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Please mark the above-captioned matter as settled and discontinued, with prejudice.
Respectfully submitted,
METTE, EVANS & WOODSIDE
By: �l
Ronald L. Finck, Esquire
Sup. Ct. I.D. No. 89985
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - Phone
(717) 236-1816—Fax
rlfinck @mette.com
Attorneys for Plaintiff
Date: July 12, 2013
CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document upon the persons
and in the manner indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Civil Procedure, by facsimile and depositing a copy of same in the United States Mail,
Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows:
Robert E. Chernicoff, Esquire
Cunningham& Chernicoff, P.C.
P.O. Box 60457
Harrisburg, PA 17106-0457
Attorneys for Defendant
Respectfully submitted:
METTE, EVANS & WOODSIDE
By: A_� 2_4't-�.
Ronald L. Finck, Esquire
Sup. Ct. I.D. No. 89985
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
Phone: (717) 232-5000
Attorneys for Plaintiff
Dated: July 12, 2013
I
539925v1