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11-3968
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW Civil Action - Law and TRUST INVESTMENT GROUP, LLC, Plaintiffs -- v. No. :;a 'o c-n r r N MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Hon. 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, 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. Pennsylvania Bar Association Lawyer Referral Service (800) 692-7375 (PA only) (717) 238-6715 9?G0 ?y r? of 8 /via ?Ct1 ?s? s?1? IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW Civil Action - Law and TRUST INVESTMENT GROUP, LLC, Plaintiffs V. No. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Hon. COMPLAINT COME NOW the above named Plaintiffs, by and through their undersigned attorneys, and for their Complaint in the above captioned matter state to the Court as follows: 1. Plaintiff Albert L. Kirkner is a sui juris adult resident of the Commonwealth of Virginia, having an address of 190 Green Spring Court, Winchester, Virginia, 22603. 2. Plaintiff Brian C. McNew is a sui juris adult resident of the Commonwealth of Pennsylvania, having an address of 1658 Black Gap Road, Fayetteville, Franklin County, Pennsylvania, 17222. 3. Plaintiff Trust Investment Group, LLC is a Pennsylvania limited liability company having a mailing address of 95 Brim Boulevard, Chambersburg, Franklin County, Pennsylvania, 17201. 4. Defendant Michael S. Glass is a sui juris adult resident of the Commonwealth of Pennsylvania, having an address of 1529 Ridge Road, Lancaster, Lancaster County, Pennsylvania, 17603-1998. 5. Defendant Margery Dana is a sui juris adult resident of the Commonwealth of Pennsylvania, having an address of 1529 Ridge Road, Lancaster, Lancaster County, Pennsylvania, 17603-1998. 6. Defendant DGK Properties, LP is a Pennsylvania limited partnership, having an address of 701 Creekside Lane, Lititz, Lancaster County, Pennsylvania, 17543. Count I -Breach of Contract -Plaintiffs v. DGK Properties. LP 1. - 6. Plaintiffs hereby incorporate Paragraphs 1 through 6 above as if fully set forth herein. 7. Plaintiffs hold a Mortgage and a Mortgage Note in the amount of $2,200,000.00, which were executed by Defendant DGK Properties, LP on November 3, 2009. A copy of said Mortgage and Mortgage Note are attached hereto and by this reference made a part hereof as Exhibit "A." 8. Defendant DGK Properties, LP has defaulted on the Mortgage Note by failing to make the monthly interest payments of six (6%) percent of the principal per annum, which payments have not been made to Plaintiff McNew for the months of June, 2010 through April, 2011, and have not been made to Plaintiff Kirkner for the months of March, 2011 through April, 2011. 9. Despite Plaintiffs' demands for payment, Defendant DGK Properties, LP has failed and refused and continues to fail and refuse to make said payment, and the Mortgage Note remains in default. 10. The amount currently due and owing under the Mortgage and Mortgage Note is $1,943,354.09. -2- WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter judgment against Defendant DGK Properties, LP and in favor of Plaintiffs in the amount of $1,943,354.09 plus interest and reasonable costs, and grant such other relief as the Court may deem just and equitable in the premises. Count H - Breach of Contract - Plaintiffs v Michael S Glass & Margery Dana 1. - 10. Plaintiffs hereby incorporate Paragraphs 1 through 10 above as if fully set forth herein. 11. Plaintiffs Kirkner and McNew also hold a Guaranty of the aforementioned Mortgage Note, which Guaranty was executed by Defendant Glass on November 3, 2009. A copy of said Guaranty is attached hereto and by this reference made a part hereof as Exhibit "B." 12. Pursuant to said Guaranty, Defendant Glass is personally indebted to Plaintiffs in the amount of $1,943,354.09, plus reasonable costs and attorney fees. 13. Plaintiff Trust Investment Group, LLC held a Guaranty of the mortgage indebtedness secured by a mortgage dated October 12, 2007, the interest in which Plaintiff Trust Investment Group, LLC subsequently assigned to and is currently held by Plaintiffs Kirkner and McNew. Said Guaranty was executed by Defendants Glass and Dana on October 12, 2007. A copy of said Guaranty is attached hereto and by this reference made a part hereof as Exhibit "C." 14. Pursuant to the Guaranty referenced in Paragraph 13 above, Defendants Glass and Dana are personally indebted to Plaintiffs in the amount of $1,943,354.09, plus reasonable costs and attorney fees. 15. Despite Plaintiffs' demands for payment, the Defendants have failed and refused and continue to fail and refuse to make payment on said Guaranties. -3- WHEREFORE, Plaintiffs respectfully request that the Court enter judgment against Defendants Glass and Dana and in favor of Plaintiffs in the amount of $1,943,354.09 plus interest, reasonable costs and attorney fees, and grant such other relief as the Court may deem just and equitable in the premises. Respectfully submitted, Date: ylz 7/11 Paul T. Schemel, Attornor Plaintiffs Dick, Stein, Schemel, Wine & Frey, LLP 119 East Baltimore Street Greencastle, Pennsylvania 17225 (717) 597-0200 PA Bar No. 83958 Date: y/x 7 / James M. Stein, Attorney for Plaintiffs Dick, Stein, Schemel, Wine & Frey, LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 PA Bar No. 84026 -4- VERIFICATION I verify that the statements made in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S., Section 4904, relating to unsworn falsification to authorities. Date: q1,;L/I ( - r Brian C. McNew, Plaintiff -6- MORTGAGE NOTE $ 2,200,000.00 Lancaster, Pennsylvania November 3, 2009 For Value Received, DGK PROPERTIES, LP, a Pennsylvania limited partnership, having a mailing address of 701 Creekside Lane, Lititz, PA 17543 (hereinafter called "Mortgagor") promises to pay to the order of ALBERT KIRKNER and BRIAN McNEW, both adult individuals having a mailing address of 95 Brim Blvd., Chambersburg, PA 17201 (hereinafter called "Mortgagee"), their heirs, personal representatives or assigns, in lawful money of the United States of America, the sum of TWO MILLION TWO HUNDRED THOUSAND DOLLARS ($2,200,000.00) and any additional moneys loaned or advanced by any holder hereof as hereinafter provided, as follows: The foregoing principal sum, along with interest calculated at a rate of 6% per annum, payable in four Installments: $250,000.00, on or before November 3, 2009, $300,000 on or before January 1,2010, $1,300.000.00 on or before October 15, 2011, and the remaining $350,000.00 on or before October 15, 2013; all payments to be made at 95 Brim Blvd., Chambersburg, Pennsylvania 17201 or elsewhere as shall be directed by any holder hereof. Interest shall accrue until June 1, 2010 and be payable monthly thereafter. This Note shall evidence, and the Mortgage given to secure its payment, shall cover and be security for any future loans or advances that may be made to or on behalf of the Mortgagor by any holder hereof at any time or times hereafter and intended by the Mortgagor and the then holder to be so evidenced and secured, as well as any sums paid by any holder hereof pursuant to the terms of said Mortgage, and any such loans, advances or payments shall be added to and shall bear interest at the same rate as the principal debt. In case default be made for the space of thirty (30) days in the payment of any installment of principal, or interest, or in the performance by the Mortgagor of any of the other obligations of this Note or said Mortgage, the entire unpaid balance of the principal debt, additional loans or advances and all other sums paid by any holder hereof to or on behalf of the Mortgagor pursuant to the terms of this Note or said Mortgage, together with unpaid interest thereon, shall at the option of the holder and without notice become Immediately due and payable, and one or more executions may forthwith issue on any judgments obtained by virtue hereof; and no failure on the part of any holder hereof to exercise any of the rights hereunder shall be deemed a waiver of any such rights or of any default hereunder. This obligation shall bind the Mortgagor and the Mortgagor's successors and assigns, and the benefits hereof shall Inure to the Mortgagee hereof and their heirs, personal representatives or assigns. This Note is assignable by the Mortgagee. This Note is secured by a Mortgage of even date herewith upon real estate described therein. Witness: DGK Properties, LP, by DGK RE, LLC, Its General Partner S. Glass Member 30?z e- MORTGAGE AJe Made this day of November, 2009, 3 9- /a? - 03 a0 - 00 a O/S 39., /Q -0 3O0 y?/ ICI DISK PROPERT11% LP, a Pennsylvania limited partnership, having a mailing address of 701 C eekside Lane, Utitz, PA 17543, (hareinafter called "Mortgagor') And ALBERT KIRKNER and BRIAN MCNEW, both adult Individuals, having a mailing address of 95 Brim Blvd., Chembersburg, PA 17201 (hereinafter calks! "Mortgagee"). WMEREAB, Mortgagor has executed and delivered to Mortgagee's predecessor, Tnast Investment Group, LLC, a certain Mortgage dated May 160 2007, and recorded in the Office of the Recorder of Deeds for Cumberland County on May 16, 2007 at Instrument No. 200739597, In the principal sum of Two Million, Two Hundred Thousand Dollars (#2,200,000.00); and WHEREAS, That Investment Group, U.C, subsequently assigned its interest in the mm1gage to ALBERT KIRKNER and BRIAN IftNEW on or about October 12, 2007, and n+eeorded M the Office of the Recorder of Deeds for Cumberland County on November 7, 2002 at Instrument No. 200742201; and WHEREAS, Mortgagor has partially paid down the original mortgage amount, and Mortgagor and Mortgagee have revised the payment structure under a revised Mortgage Nob for d1ft payment of the debt secured by this Mortgage to be In the prNxlpsi sum of TWO MILLION, TWO HUNDRED THOUSAND DOLLARS (x)2,200,000.00) lawful money of the United Stabs of America, and has provided therein for payment of any addltionsi moneys loaned or advanced thereunder by Mortgagee, together with Must thereon at the rate provided In the Note, in the manner and at the times therein set forth, and containing certain other toms and conditions, all of which are specifically incorporated herein by reference; and WHEREAS, this Mortgage replaces and supersedes the mortgage and the assignment Identified above; NOW, THEREFOR!, Mortgagor, intending to be legally bound, and in consideration of said debt and as security for the payment of the some and Interest as aforesaid, together with all other sums payable hereunder or under the terms of the Note, does grant and convey unto Mortgagee, their helm, personal representatives and assigns: ALL the following described real estate lying and being situate In Cumberland county., Prnesi?hrinta1 bounded and described as follows: See Attached EXhlbit "Am TOGUNI t with the buNdings and Improvements erected thereon, the appurtenances thereunto belonging and the reversions, remainders, rents, Issues and profits thereof. TO HAVE AND TO HOLD tM same unto Mortgagee, their heirs, personal representatives and assigns, forever. 'ROVMD, HOI 1Mk That If Mortgagor shall pay to Mortgagee the aforesaid debt or principal sum, IndudkV additional loans or advances and all other sums payable by Mortgagor to Mortgagee hereunder and under the terms of the Note, together with interest thereon, and W*N keep and perform each of the other covenants, conditions and agreements hereinafter set forth, then this Mortgage and the estate hereby granted and conveyed shall become void. Tmn i4oKMAOR is executed and delivered subject to the following covenants, conditions and agreements: (i) The Mortgagor shall pay the said debt together with Interest thereon at the rate provkied in the Mote in the manner and at the times set forth in the Note. (2) The Note secured hereby shaN evidence, and this Mortgage shall cover and be security for, any future loam or advances that may be made by Mortgagee to Mortgagor at any time or tunes hereafter and intended by Mortgagor and Mortgagee to be so evkkoced and secured, and such loam and advances shall be added to the principal debt. (3) From time to time until said debt and interest are fully paid, Mortgagor shah: (a) pay and discharge, when and as the same shall become due and payable, all taxes, assessmentss serer and water rents, and all other charges and claims assessed or levied from time to time by any lawful authority upon any part of the mortgaged premises and which shaN or might have priority in lien or payment to the debt secured hereby, (b) pay all ground rents reserved from the mortgaged premises and pay and discharge aN mechanks' Hens which may be filed against sold premises and which shall or might have priority In Nan or payment to the debt secured hereby, (c) pay and discharge any documentary stamp or other tax, including Interest and penalties thereon, If any, now or hereafter becoming payable on the Note evidencing the debt secured hereby. (d) provide, renew and keep alive by paying the necessary premiums and charges thereon such polk m of hazard and Na iNty Insurance as Mortgagee may from time to time require upon the buildings and improvements now or hereafter erected upon the mortgaged premises, with loss payable clauses In favor of Mortgagor and Mortgagee as their respective Interest may appear, such policies to be deposited as collateral secured with the Mortgagee, and (a) promptly submit to Mortgagee evidence of the due and punctual payment of all the foregoing charges; provided, however, that Mortgagee may, at It's option, require that sums sufficient to discharge the foregoing charges to be paid In Installments to Mortgagee. (4) Mortgagor shah maintain all buildings and improvements subject to this Mortgage in good and substantial repair, as determined by Mortgagee. Mortgagee shall have the right to enter upon the mortgaged premises at any reasonable hour for the purpose of Inspecting the order, condition and repair of the buildings and Improvements erected thereon. Mortgagor warrants title to the mortgaged premises. (S) In the event Mortgagor neglects or refuses to pay the charges mentioned at (3) above, or gills to maintain the buildings and Improvements as aforesaid, Mortgagee may do so, add the cost thereof to the principal debt secured hereby, and collect the same as part of sold principal debt. (6) Mortgagor covenants and agrees not to create, nor permit to accrue, upon all or any part of the mortgaged premises, any debt, lien or charge which would be prior to, or on a parity with, the Nan of this Mortgage. Mortgagor shall comply with ail lays, ordinances, regulations, and orders of all Federal, State, Municipal and other governmental authorities relating to the Mortgaged premises. (7) In can default be made for the space of thirty (30) days in the payment of any instaNrnant of principal, or Interest pursuant to the terms of the Note, or In the performance by Mortgagor of any of the other obligations of the Note or this Mortgage, the entire unpaid balance of said principal sum, additional loans or advances and ail other sums paid by Mortgagee pursuant to the terns of the Note or this Mortgage, together with unpaid Interest thereon shall at the option of Mortgagee and without notice become Immedistaty due and payable, and an action of mortgage foreclosure may be brought forthwith on this Mortgage and prosecuted to judgment, execution and sale for the collection of the same, together with costs of suit and attorney's commission for collection of tan per test (10%) of the total Nndebtsdrws or fifteen hundred ($1,SOO.00) dollars, whichever Is greater. To the extent permed by law, Mortgagor hereby forever waives (a) the necessity of filing any affidavit of non-mil" service; (b) all notice of levy as well as any right to request a release from levy from any and abl real and personal property levied upon or attached; and (c) the benefit of all appralsement, stay and exemption laws and all bankruptcy or Insohrenq lows now In force or hereinafter passed, any law, usage or custom to the contrary notwithstanding. (8) From time to time upon notice given by Mortgagor, Mortgagee will release from this mortgage certain parcels included within the Real Estate upon the condition that the fair market value, as reasonably determined by the holder of the Mortgage Note, of the remaining parcels described above, is at least equal to 120% of the remaining balance due under the Mortgage Note. THIS mortgage and the note executed and delivered to mortgagee herewith Is not assignable and may not be assumed by any other person or legal entity. Except as described and allowed in Section 8, above, It all or part of the real estate described herein, or an interest therein, Is sold, transferred or conveyed by the Mortgagor, or upon any transfer of possession of the real estate described herein by the Mortgagor whether by conveyance, long-term lease, installment sales agreement, or otherwise, the entire unpaid balance of the said principal sum and all other sums pale by Mortgagee pursuant to the terms of the note or this mortgage, together with unpaid Interest thereon, shall become Immediately due and payable to Mortgagee. The provisions of this paragraph shall not apply to (a) transfer by devise, descent, or by operation of law upon death of a joint tenant or tenant by the entiretles, or (b) grant of any leasehold Interest of three years or less not containing an option to purchase. THIS mortgage is taken by the Mortgagee to secure the repayment of money actually advanced by the Mortgagee to or on behalf of the Mortgagor at the time the Mortgagor acquires title to the property herein described, and used by the Mortgagor at that time to pay all or part of the purchase price of said real estate, and this mortgage is expressly stated to be a purchase money mortgage. AND It is expressly cartifled and declared that this Indenture of mortgage Is subject, in both lien and priority of payment, to certain mortgages given by said Mortgagor to First Commonwealth Bank to secure the payment of the principal loan sums of Eight Million Dollars ($8,000,000.00) and Six Hundred and Fifty Thousand Dollars ($650,000.00), and a mortgage given to Fulton Bank to secure the payment of the principal loan sum of Three Million Dolloars ($3,000,000.00). This Mortgage shall be subordinate In both Nan and priority of from time tto time payment Mortgagor's Mortgagee lender or Its agents` and afrilt' lenders providing acqulsitlon, development and construction funds, and as refinanced from time to time. THE covenants, condition and agreements contained in this Mortgage shall bind, and the benefits thereof shall inure to, the respective parties hereto and their respective heirs, executors, admlnistrators, successors and assigns, and If this Mortgage is executed by more than one person, the undertakings and liability of each shall be joint and several. WITNM the due execution hereof the day and year first above written. Wltness: DGK Properties, LP, by DGK R LLC, Its Gerseral Partner sy COMMONWRALTH OF PRNKSYLVANIAs Sol COUNTY OF Lancaster. On 04 day A=", before me, a notary public, personalty Michael IL Glen, member of DGK RR, LLC, a Pennsylvania Nndted NebNN,y an*sey, known is me or satisifteWily proven to be the persons whose named are subscribed to the within Instrument and acknowledged that they executed the same In the capacities therein stated and for purposes therein tamed, In Wanes Whereof, I hereunto at my hand and official sell. I I& L W6,02 Notary PubNC C4>wMAOI?WEALTH OF PENKnVANtA NoWIM 9MI Chabro ft Cher, Nolwy Pubk I hereby certify that Mortgagee's precise address Is:LW0WM*WME*MNW.%2Q11 95 Brim Boulevard, Chambersburg, PA 17201 M6160, F""vv**4 k*wW n o NNatems Date: -;24e Agent for ortgagee ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 209938972 Recorded On 11/19/2099 At 3:39:35 PM * Instrument Type - MORTGAGE Invoice Number - 5" User ID - RZ * Mortgagor - DGK PROPERTIES LP * Mortgagee - KIRKNER, ALBERT * Customer - BRIAN MCNEW *MEN STATE WRIT TAX $0.50 STATE SCS/ACCESS TO $10.00 M"TICE RECORDING TEES - $11.50 RECORDER or DEEDS PARCEL CERTxrxcATION $20.00 MIS APPORDAS&Z EOU3INO $11.50 CotAi y ARCurm ME $2.00 ROD ARCEIVES ME $3.00 TOTAL PAID $38.50 I Certify this to be recorded in Cumberland County PA RECORDER OF DEEDS * Total Pages - 5 Certification Page DO NOT DETACH This page is now part of this legal document. • - Information denoted by an asterisk may cheap during the verification process and may not be reflected on this pap. GUARANTY The words "I", "we", "me" and "my" mean each signer of this guaranty. The words "Lender", "you" and "your" mean the Lender and anyone else who becomes the owner of this guaranty. A. GUARANTY To persuade the Lender: Albert Kirkner and Brian McNew, (Lender) to lend money or give credit to DGK Properties, LP (the "Borrower"), I absolutely guarantee to you, the Lender, that the Borrower will pay when it Is due wratever the Borrower now or later owes you, including, but not limited to that certain mortgage note from the Borrower to you of even date herewith In the amount of This ?^? dj ?JZ,, OOC) ( , means, if the Borrower does not make payment on time or otherwise defaults, I will h t h , , Y repay w a ever t e Borrower owes you immediately after you make demand on me for payment. You do not have to sue or take any action against the Borrower or p against any property you hold as security for the Borrower's debts that I am V guaranteeing before enforcing this guaranty against me. If I sign another guaranty agreement for the Borrower with you, the other agreement shall not terminate this agreement, but shall be an additional guaranty unless It specifically provides otherwise. B. INTEREST: COLLECTION COSTS In addition to the basic guaranty for credit extended, I promise to pay any interest the Borrower owes or may later owe you. I also promise to pay all legal and other expenses of collection as may be set forth In the applicable loan documents. C. UNLIMITED GUARANTY My total obligation to the Lender under this guaranty is unlimited. D. NO NOTICE REQUIRED The Lender need not get my approval or notify me if: 1. You lengthen the time to make payment; or 2. You change the manner or terms of payment; or 3. You sell or take any other action relating to the security you hold for any of the Borrower's debts; or 4. You accept renewals; or 5. You accept different notes or contracts for money you lend or credit you give to the Borrower; or 6. The Borrower is in default. I understand that I will still be liable on this guaranty even if you do any or all of these things. E. THE LENDER'S ACTS OR OMISSIONS No act or failure to act on your part will change or lessen my responsibility on this guaranty. Examples of acts which will not change my guaranty are in paragraph D. EFFECTIVE DATE This guaranty will become effective upon its delivery and acceptance by you. You will show that you have accepted this guaranty by loaning money to the Borrower. You will nQJ notify me of your acceptance. G. SUBORDINATION OF BORROWER'S DEBTS TO ME. I agree that all the amounts owed by Borrower to Lender, whether now existing or hereafter created, shall be superior to any claim that I may now have or hereafter acquire against Borrower, whether or not Borrower becomes Insolvent. I hereby expressly subordinate any claim Guarantor may have against Borrower, upon any account whatsoever, to any claim that Lender may now or hereafter have against Borrower. In the event of Insolvency and consequent liquidation of the assets of Borrower, through bankruptcy, by an assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets of Borrower applicable to the payment of the claims of both Lender and me shall be paid to Lender and shall be first applied by Lender to the amounts owed by Borrower to Lender. I do hereby assign to Lender all claims which I may have or acquire against Borrower or against any assignee or trustee in bankruptcy of Borrower, provided however, that such assignment shall be effective only for the purpose of assuring to Lender full payment in legal tender of the amounts owed by Borrower to Lender. If Lender so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of Borrower to me shall be marked with a legend that the same are subject to this Guaranty and shall be delivered to Lender. I agree, and Lender Is hereby authorized, in my name, from time to time to file financing statements and continuation statements and to execute documents and to take such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty. H. WHO IS RESPONSIBLE I understand that I am responsible for the full amount of this guaranty. I intend this guaranty to bind my executor or administrator - that is, the person or company that takes care of my affairs if I die. LEGAL ACTION FOR RECOVERY I agree that Lender may institute legal action against me under this Guaranty in Cumberland or Lancaster Counties, Pennsylvania, or any United States District Court and that this Guaranty shall be governed by and construed in accordance with the laws of the State of Pennsylvania, without regard for principles of conflict of laws. I agree that I may be served legal process, unless I otherwise notify you In writing with proof of receipt, as follows: Michael S. Glass 701 Creekside Lane Lititz, PA 17543 November , 2009. Intending to be legally bouu d, I have executed this Guaranty. Witnessed by: Guarantor 1 ?Q , SM31ass ACCEPTANCE November , 2009. Lender hereby accepts this guaranty and in reliance thereon has or will advance credit to the Borrower. Lender: Brian McNew Brian C. McNew, Member Albert Kirkner Albert L. Kirkner, Member COMMONWEALTH OF PENNSYLVANIA SS COUNTY OF LANCASTER . On this day of , 2009, before me, a notary public, personally appeared Michael S. Glass, known to me or satisfactorily proven to be the persons whose names are subscribed to the within instrument (Guaranty) and acknowledged that they executed the same for the purposes therein contained. In Witness Whereof, I hereunto set my hand and official seal. Notary Public GUARANTY The words "I", "we", "me" and "my" mean each signer of this guaranty. The words "Lender", "you" and "your" mean the Lender and anyone else who becomes the owner of this guaranty. A. GUARANTY To persuade the Lender (Trust Investment Group, LLC) to lend money or give credit to DGK Properties, LP (the "Borrower"), I absolutely guarantee to you, the Lender, that the Borrower will pay when it is due whatever the Borrower now or later owes you, including, but not limited to that certain mortgage note from the Borrower to you of even date herewith in the amount of $3,200.000.00. This means, if the Borrower does not make payment on time or otherwise. defaults, I will repay whatever the Borrower owes you immediately after you make demand on me for payment. You do not have to sue or take any action against the Borrower or against any property you hold as security for the Borrower's debts that I am guaranteeing before enforcing this guaranty against me. If I sign another guaranty agreement for the Borrower with you, the other agreement shall not terminate this agreement, but shall be an additional guaranty unless it specifically provides otherwise. B. INTEREST: COLLECTION COSTS In addition to the basic guaranty for credit extended, I promise to pay any interest the Borrower owes or may later owe you. I also promise to pay all legal and other expenses of collection as may be set forth in the applicable loan documents. C. UNLIMITED GUARANTY My total obligation to the Lender under this guaranty is unlimited. D. NO NOTICE REQUIRED The Lender need not get my approval or notify me if: 1. You lengthen the time to make payment; or 2. You change the manner or terms of payment; or 3. You sell or take any other action relating to the security you hold for any of the Borrower's debts; or 4. You accept renewals; or 5. You accept different notes or contracts for money you lend or credit you give to the Borrower; or 6. The Borrower is in default. I understand that I will still be liable on this guaranty even if you do any or all of these things. E. THE LENDER'S ACTS OR OMISSIONS No act or failure to act on your part will change or lessen my responsibility on this guaranty. Examples of acts which will not change my guaranty are in paragraph D. F. EFFECTIVE DATE This guaranty will become effective upon its delivery and acceptance by you. You will show that you have accepted this guaranty by loaning money to the Borrower. You will no notify me of your acceptance. G. CONFESSION OF JUDGMENT I HEREBY IRREVOCABLY AUTHORIZE AND EMPOWER THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR AND ENTER JUDGMENT AGAINST ME FOR THE ABOVE SUM(S), WITH OR WITHOUT DECLARATION, WITH COSTS OF SUIT, RELEASE OF ERRORS, WITHOUT STAY OF EXECUTION, AND WITH TEN (10%) PERCENT ADDED FOR COLLECTION FEES, BUT IN ANY EVENT NOT LESS THAN $750.00, ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY, AND FOR SO DOING, THIS GUARANTY OR A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS GUARANTY TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS GUARANTY. I FURTHER AGREE THAT REAL, PERSONAL OR MIXED PROPERTY MAY BE SOLD UPON ANY WRIT OF EXECUTION AS NOW OR HEREAFTER PROVIDED BY LAW OR THE RULES OF CIVIL PROCEDURE GOVERNING THE ENFORCEMENT OF JUDGMENTS; AND I WAIVE AND RELEASE ALL RELIEF FROM ANY APPRAISEMENT, STAY OR EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER TO BE PASSED. H. SUBORDINATION OF BORROWER'S DEBTS TO ME. I agree that the all amounts owed by Borrower to Lender, whether now existing or hereafter created, shall be superior to any claim that I may now have or hereafter acquire against Borrower, whether or not Borrower becomes insolvent. I hereby expressly subordinate any claim Guarantor may have against Borrower, upon any account whatsoever, to any claim that Lender may now or hereafter have against Borrower. In the event of insolvency and consequent liquidation of the assets of Borrower, through bankruptcy, by an assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets of Borrower applicable to the payment of the claims of both Lender and me shall be paid to Lender and shall be first applied by Lender to the amounts owed by Borrower to Lender. I do hereby assign to Lender all claims which I may have or acquire against Borrower or against any assignee or trustee in bankruptcy of Borrower; provided however, that such assignment shall be effective only for the purpose of assuring to Lender full payment in legal tender of the amounts owed by Borrower to Lender. If Lender so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of Borrower to me shall be marked with a legend that the same are subject to this Guaranty and shall be delivered to Lender. I agree, and Lender is hereby authorized, in my name, from time to time to file financing statements and continuation statements and to execute documents and to take such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty. WHO IS RESPONSIBLE Although this guaranty may be signed by more than one person, I understand that we are each separately responsible for the full amount of this guaranty (this is referred to legally as "joint and several liability"). Each signer intends this guaranty to bind his executor or administrator - that is, the person or company that takes care of my affairs if I die. I. LEGAL ACTION FOR RECOVERY I agree that Lender may institute legal action against me under this Guaranty in Cumberland or Lancaster Counties, Pennsylvania, or any United States District Court and that this Guaranty shall be governed by and construed in accordance with the laws of the State of Pennsylvania, without regard for principles of conflict of laws. I agree that I may be served legal process, unless I otherwise notify you in writing with proof of receipt, as follows: Michael S. Glass Margery Dana 1529 Ridge Road Lancaster, PA 17603 Victor Kicera Denise Kicera 2834 Kissel Hill Road Lititz, PA 17543 October 12, 2007. Intending to be legally bound, I have executed this Guaranty. Witnessed by: Guarantor(s) Mic el S. lass Mar ry Dana ictor Kicera Denise Kicera October 12, 2007. Lender hereby accepts this guaranty and in reliance thereon has or will advance credit to the Borrower. Lender: Trust Investment Group, LLC b b ff-rian C. McNees, Member A ert L. K rkner, Member COMMONWEALTH OF PENNSYLVANIA: COUNTY OF LANCASTER: SS: On this day of Och 64", , 2007, before me, a notary public, personally appeared Michael S. Glass and Margery Dana, husband and wife, known to me or satisfactorily proven to be the persons whose names are subscribed to the within instrument (Guaranty) and acknowledged that they executed the same for the purposes therein contained. ?''?j? In Witness Whereof, I hereunto set my hand and official seal. A'k 1 v Notary Public COMMONWEALTH OF PENNSYLVANIA: COUNTY OF LANCASTER: COMMONWEALTH OF PENNSYLVANIA seal Pamela R Hostift NoWy Pubic C ky Of U ncadw LancUW Counly SS: n? EVION Sept 21,2011 Mamba, Pennsylvania AssodaNon of Notaries On this 0a day of f?G Id" e- , 2007, before me, a notary public, personally appeared Victor Kicera and Denise Kicera, husband and wife, known to me or satisfactorily proven to be the persons whose names are subscribed to the within instrument (Guaranty) and acknowl dged that they executed the same for the purposes therein contained. In Witness Whereof, I hereunto set my hand and official seal. /'z '- Notary Public COMMONWEALTH OF PENNSYLVANIA Seal P"Gis It HOskft Notary CNY Of Pub1c M!r Oanell?on E)q*a Sept 212011 Member, Pennsylvania Association of Notaries SHERIFF'S OFFICE OF CUMBERLAND COUNTY - ?' Ronny R Anderson Sheriff #x?xtr ct cow1b,r,'7114, ra ,: -A Jody S Smith Chief Deputy Richard W Stewart Solicitor Albert L. Kirkner (et al.) vs. Michael S. Glass (et al.) SHERIFF'S RETURN OF SERVICE FRS ! C' r { 1 Jr.:?iv i tii"'1 y:A Case Number 2011-3968 05/12/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Michael S. Glass, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Lancaster County, Pennsylvania to serve the within Complaint and Notice according to law. 05/12/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Margery Dana, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Lancaster County, Pennsylvania to serve the within Complaint and Notice according to law. 05/12/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: DGK Properties, LP c/o Michael S. Glass, but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Lancaster County, Pennsylvania to serve the within Complaint and Notice according to law. 06/01/2011 Lancaster County Return: And now, June 1, 2011 I, Terry Bergman, Sheriff of Lancaster County, Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for DGK Properties, LP the defendant named in the within Complaint and Notice and that I am unable to find them in the County of Lancaster and therefore return same NOT FOUND. Mail that is addressed to 1529 Ridge Road, Lancaster, Pennsylvania 17603 is addressed to M. Glass. However, after several attempts Deputies were unable to find the Defendant at the residence. 06/01/2011 Lancaster County Return: And now, June 1, 2011 I, Terry Bergman, Sheriff of Lancaster County, Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for Margery Dana the defendant named in the within Complaint and Notice and that I am unable to find her in the County of Lancaster and therefore return same NOT FOUND. Mail that is addressed to 1529 Ridge Road, Lancaster, Pennsylvania 17603 is addressed to M. Glass. However, after several attempts Deputies were unable to find the Defendant at the residence. 06/01/2011 Lancaster County Return: And now, June 1, 2011 I, Terry Bergman, Sheriff of Lancaster County, Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for Michael S. Glass the defendant named in the within Complaint and Notice and that I am unable to find him in the County of Lancaster and therefore return same NOT FOUND. Mail that is addressed to 1529 Ridge Road, Lancaster, Pennsylvania 17603 is addressed to M. Glass. However, after several attempts Deputies were unable to find the Defendant at the residence. SHERIFF COST: $69.00 SO ANSWERS, ! June 06, 2011 RON R ANDERSON, SHERIFF i Coun?y5uit? She'?Yf, ieiecsot'l Inr,. U, 1 of 3 k? 1 j SHERIFF1S OFFICE 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA, 17608-3480 - (717) 299-8200 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT of RETURN r 1. PLAINTIFF/S/ ?2. COURT DOCKET NUMBER Albert L. Kirkner, Brian C. McNew and Trust Investment Group, LLC 11 3968 Civil J. DEFENDANT/S/ 4. TYPE OF DOCUMENT TO BE SERVED Michael S. Glass, Margery Dana and DGK Properties, LP Complaint SERVE 5. NAME OF INDIVIDUAL COMPANY, CORPORATION, ETC., TO BE SERVED Michael S. Glass - 6. ADDRESS (Street or RFD, Apartment No., City, Boro, Twp., State and ZIP Code) AT 1529 Ridge Road, Lancaster, PA 17603-1998 a L- UN IL r r r urvUaUHL ItKYlk t' I ULrU 11LC I U I HLH Now, 20 .1 SHERIFF OF LANCASTER COUNTY, PA., do hereby deputize the Sheriff of County to execute the writ and make return thereof according to law. This deputation being made at the request and risk of the plaintiff Sheriff of Lancaster County _ 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: by Sheriff of Cumberland County, Pennsylvania (?R 3 N 0 NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriffs sale thereof. 9. SIGNATURE OF A 0 NEY R OTHER ORIGINATOR Print Name 10. TELEPHONE NUMBER 11. DATE 1Paul T. Schemel, Esquire (717) 597-0200 May 10, 2011 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW:(This area must be completed if notice is to be mailed) /29 , Paul T. Schemel, Esquire - Dick, Stein, Schemel, Wine & Frey, LLP -119 East Baltimore Street, Greencastle, PA 17225 13.1 acknowledge receipt of the writ NAME of authorized LCSO Deputy or Clerk 14. Date Received 15. Expiration/Hearing Date or complaint as indicated above Yvette Turco 717 723-4519 05/13/2011 05/31/2011 16.1 Hereby CERTIFY and RETURN that I have personally served, have legal evidence of service as shown in "Remarks", have executed as shown in "Remarks", the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the individual, N a= ?=- L„ aI Iu 1rtu111 d 14u 1 rvvlvv oecause l am unaule to located the individual, om an , cor oration, etc., name a ove. 18. e and title of individual Served(if not shown above) (Relationship to Defendant) 20. Address of where served (C Boro, TWP, State and ZIP Code) 23. Attempts 24. Advance Costs R#06t$ $150.00 30. Remarks: S.T.A.: 19. FNo Service See Remarks Below 21. Date of Service 22. Time AM /PM E.S.T / E.D.S.T t-m - kII Dep.lnt Date Miles Dep.lnt OR 86PUND -J-." -Z5J 771" 4?5? only it different than shown Miles Dep.lnt Date Miles DepAnt Date ?3 5 5? ??C s -7/3 i 25. Service Costs 26. Notary Costs 27. Mileage/ $82.50 „ or RFD, Apartment No., City, Ailes Dep.lnt Date Miles r 14 to NY 128. Tgta?C J IU ,04 7- .4 31. AFFIRMED and subscribed to before me this 34. day of 37. Prothonotary/Deputy/Norary Public MY COMMISSION EXPIRES 20 `. 6,6 32. Signature of Dep. Sheriff 33.D / 35. Signature of Sheriff 36. at _r A. MARK S. REESE, I OUN' PA 2 of 3 SHERIFF'S OFFICE 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA, 17608-3480 - (717) 299-8200 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT of RETURN 1. PLAINTIFF/S/ 2. COURT DOCKET NUMBER Albert L. Kirkner, Brian C. McNew and Trust Investment Group, LLC 11-3968 Civil 3. DEFENDANT/S/ 4. TYPE OF DOCUMENT TO BE SERVED Michael S. Glass, Margery Dana and DGK Properties, LP Complaint SERVE 5. NAME OF INDIVIDUAL, COMPANY CORPORATION, ETC., TO BE SERVED Margery Dana 6. ADDRESS (Street or RFD, Apartment No., City, Boro, Twp., State and ZIP Code) _ AT 1529 Ridge Road, Lancaster, PA 17603-1998 /. IIV /1 M I IIV I l M l nyl 1 I V I ILL I V 11 ILII _ Now, 20 1 SHERIFF OF LANCASTER COUNTY, PA., do hereby deputize the Sheriff of County to execute the writ and make return thereof according to law. This deputation being made at the request and risk of the plaintiff Sheriff of Lancaster County 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Deputized by Sheriff of Cumberland County, Pennsylvania NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriffs sale thereof. 9. SIGN TURE OF ATTORNEY OR OTHER ORIGINATOR print Name 10. TELEPHONE NUMBER 11. DATE IPaul T. Schemel, Esquire (717) 597-0200 May 10, 2011 12. SEND OTICE OF VICE COPY TO NAME AND ADDRESS BELOW:(This area must be completed if notice is to be mailed) Paul T. Schemel, Esquire - Dick, Stein, Schemel, Wine & Frey, LLP -119 East Baltimore Street, Greencastle, PA 17225 13.1 acknowledge receipt of the writ NAME of authorized LCSO Deputy or Clerk 14. Date Received 15. Expiration/Hearing Date or complaint as indicated above Yvette Turco 717723-4519 05/13/2011 05/31/2011 16.1 Hereby CERTIFY an RETURN that I have personally served, have legal evidence o service as shown in "Remarks", have executed as shown in "Remarks", the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the individual, 17, 1 nereo certl and return a NU f FUUND because I am unable to located the individual, om an , corporation, etc., name above. 18. Name and title of individual Served(if not shown above) (Relationship to Defendant) 19. rl. No Service See Remarks Below 20. Address of where served (Complete only it different than shown above)(Street or RFD, Apartment No., City, 21. Date of Service 22. Time AM/PM Boro, TWP, State and ZIP Code) EST/ E.D.S.T 23. Attempts Da a Miles Dep.lnt Da? Miles Dep. Int D / Miles Dep. lnt Date Miles DDate Miles Dep.lnt se 24. Advance Costs 25. Service Costs 26. Notary Costs 27. Mi age/Posta N 28. Total Costs 29. COST DUE OR REFUND •iflc -fl 9 3 G1 30. Rem4rks: S.T.A.: 31. AFFIRMED and subscribed to before me 34. day of 37. Prothonotary/Deputy/Norary Public MY COMMISSION EXPIRES 20 50 /?i/1 Signature of Dep. Sheriff Signature of Sheriff ZL- MARK S. 36. NTY PA 3 of 3 SHERIFF'S OFFICE 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA, 17608-3480 - (717) 299-820 SHERIFF SERVICE x.: PROCESS RECEIPT, and AFFIDAVIT of RETURN -, , 1. PLAINTIFF/S/ 2. COURT DOCKET NUMBER Albert L. Kirkner, Brian C. McNew and Trust Investment Group, LLC 11-3968 Civil 3. DEFENDANT/S/ 4. TYPE OF DOCUMENT TO BE SERVED Michael S. Glass, Margery Dana and DGK Properties, LP Complaint SERVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC., TO BE SERVED DGK Properties, LP (c/o Michael S. Glass) 6. ADDRESS (Street or RFD, Apartment No., City, Boro, Twp., State and ZIP Code) AT 1529 Ridge Road, Lancaster, PA 1 7603-1 998 Now, 20 ,1 SHERIFF OF LANCASTER COUNTY, PA., do hereby deputize the Sheritt of County to execute the writ and make return thereof according to law. This deputation being made at the request and risk of the plaintiff Sheriff of Lancaster County 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Deputized by Sheriff of Cumberland County, Pennsylvania NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriffs sale thereof. 9. SIGN TURE OF ATT OR OTHE ORIGINATOR print Name 10. TELEPHONE NUMBER 11. DATE 113aul T. Schemel, Esquire (717) 597-0200 May 10, 2011 12. SEND NOTICE OF SERVIC OPY TO NAME AND ADDRESS BELOW:(This area must be completed if notice is to be mailed) 113aul T. Schemel, Esquire - Dick, Stein, Schemel, Wine & Frey, LLP -119 East Baltimore Street, Greencastle, PA 17225 ........... 13.1 acknowledge receipt of the writ NAME of authorized LCSO Deputy or Clerk 14. Date Received 15. Expiration/Hearing Date or complaint as indicated above Yvette Turco 717 723-4519 05/13/2011 /31/2011 16.1 Hereby CERTIFY an RETURN that I have personally served, have legal evidence of service as shown in "Remarks", I have executed as shown in "Remarks", the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the individual, 17 1 1 hereby certity and return a NU I hUUNU because I am unable to locatea the InaIVIOUal, ompany, corporation, etc., namea above. 18. Name and title of individual Served(if not shown above) (Relationship to Defendant) 19. f-' No Service See Remarks Below P 20. Address of where served (Complete only it different than shown above)(Street or RFD, Apartment No., City, 21. Date of Service 22. Time AM/PM Boro, TWP, State and ZIP Code) E.S.T/ E.D.S.T 23. Attempts Date Miles Dep. Int Date Miles Dep. Int Dal? Miles Dep. Int Date Miles Dep. Int Date Miles Dep. Int 3S/? atAAMI? 24. Advance Costs 25. Service Costs 26. Notary Costs 27. M' eage/Pos a/N.F 28. Total Costs 29. COST DUE OR REFUND 30.Kemarks: ?/aAn, / 7 t ' S.T.A.: 31. AFFIRMED and subscribed to before me this 34. day of 20 SO 15 37. 35. Signature of Sheriff 36. Prothonotary/Deputy/Norary Public MY COMMISSION EXPIRES MARK 5. k4w ASTER PA (3 A N rt a N IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTAtAT OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH ALBERT L. KIR.KNER, BRIAN C. McNEW and TRUST INVESTMENT GROUP, LLC, Plaintiffs V. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants in r-- i\J -<> cr, Civil Action - Laws = c? No. 11-3968 Civil Hon. MOTION FOR SERVICE BY PUBLICATION COME NOW the above named Plaintiffs, by and through their undersigned attorney, and for their Motion for Service by Publication state to the Court as follows: 1. The Plaintiffs filed their Complaint in this matter on April 29, 2011. u c? ---a o? 2. Plaintiffs' counsel instructed the Cumberland County Sheriff to deputize the Lancaster County Sheriff to serve said Complaint upon all three (3) Defendants at their last known address of 1529 Ridge Road, Lancaster, Pennsylvania, 17603. 3. The Lancaster County Sheriff was unable to serve the Defendants at their last known address, despite making three (3) attempts to do so. Copies of the Returns of Service from the Cumberland County Sheriff and the Lancaster County Sheriff are attached hereto and by this reference made a part hereof, labeled as Exhibit "A." 4. On June 13, 2011, Plaintiffs' counsel submitted change of address inquiries to the Postmaster of Lancaster, Pennsylvania. Plaintiffs' counsel subsequently received replies from the Postmaster, indicating that the Defendants' last known address of 1529 Ridge Road, Lancaster, Pennsylvania, 17603 is still valid. Copies of the completed change of address inquiry forms are attached hereto and by this reference made a part hereof, labeled as Exhibit "B." Concurrently with the filing of this Motion, Plaintiffs' counsel also filed a Praecipe requesting that the Prothonotary reinstate the Complaint in this matter. 6. Pennsylvania Rule of Civil Procedure 430 allows for service by publication in the event that service cannot be made under the applicable rules. The Plaintiffs have enumerated herein their efforts to make service, as required by the Rule. 7. A copy of the Notice of Civil Action that Plaintiffs propose for publication is attached hereto and by this reference made a part hereof, labeled as Exhibit "C." WHEREFORE, Plaintiffs respectfully request that this Honorable Court order that service of process on all three (3) Defendants be carried out by publishing notice of said Complaint one (1) time in the Cumberland Law Journal and one (1) time in a newspaper of local circulation in Lancaster County, Pennsylvania, pursuant to Pa. R.C.P. 430(b)(1). Respectfully submitted, Date: Paul T. Schemel, ttorn' for Plaintiffs Dick, Stein, Schemel, Wine & Frey, LLP 119 East Baltimore Street Greencastle, Pennsylvania 17225 (717) 597-0200 PA Bar No. 83958 VERIFICATION I verify that the statements made in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S., Section 4904, relating to unsworn falsification to authorities. Date: 1 ?? Paul T. chemel, ?mAttorney for Plaintiffs -2- SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ???,tp ?t+??c?rzPrrf?b Jody S Smith Chief Deputy E<'` Richard W Stewart Solicitor OFHCE "',r THE ?+-,ERIFF Albert L. Kirkner (et al.) vs. Case Number . Michael S. Glass (et al.) 2011-3968 SHERIFF'S RETURN OF SERVICE 05/12/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Michael S. Glass, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Lancaster County, Pennsylvania to serve the within Complaint and Notice according to law. 05/12/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Margery Dana, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Lancaster County, Pennsylvania to serve the within Complaint and Notice according to law. 05/12/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: DGK Properties, LP c/o Michael S. Glass, but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Lancaster County, Pennsylvania to serve the within Complaint and Notice according to law. 06/01/2011 Lancaster County Return: And now, June 1, 2011 I, Terry Bergman, Sheriff of Lancaster County, Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for DGK Properties, LP the defendant named in the within Complaint and Notice and that I am unable to find them in the County of Lancaster and therefore return same NOT FOUND. Mail that is addressed to 1529 Ridge Road, Lancaster, Pennsylvania 17603 is addressed to M. Glass. However, after several attempts Deputies were unable to find the Defendant at the residence. 06/01/2011 Lancaster County Return: And now, June 1, 2011 I, Terry Bergman, Sheriff of Lancaster County, Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for Margery Dana the defendant named in the within Complaint and Notice and that I am unable to find her in the County of Lancaster and therefore return same NOT FOUND. Mail that is addressed to 1529 Ridge Road, Lancaster, Pennsylvania 17603 is addressed to M. Glass. However, after several attempts Deputies were unable to find the Defendant at the residence. 06/01/2011 Lancaster County Return: And now, June 1, 2011 I, Terry Bergman, Sheriff of Lancaster County, Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for Michael S. Glass the defendant named in the within Complaint and Notice and that I am unable to find him in the County of Lancaster and therefore return same NOT FOUND. Mail that is addressed to 1529 Ridge Road, Lancaster, Pennsylvania 17603 is addressed to M. Glass. However, after several attempts Deputies were unable to find the Defendant at the residence. SHERIFF COST: $69.00 SO ANSWERS, June 06, 2011 RbNl`V R ANDERSON, SHERIFF EEXHIBIT c) GanttySuite Shenff. TelFOSOft. Inc 1 of 3 DU I , SHERIFFS OFFICE 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA, 17608-3480 - (717) 299_8200 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT of RETURN f LlP 1. PLAINTIFF/S/ -A w. _ 2. COURT DOCKET NUM@ER``? Albert L. Kirkner, Brian C. McNew and Trust Investment Group, LLC 11-3968 Civil ' 3. DEFENDANT/S/ 4. TYPE OF DOCUMENT 1 Michael S. Glass, Margery Dana and DGK Properties, LP BE SERVEp Complaint SERVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC., TO BE SERVED ??- Michael S Glass 6. ADDRESS (Street or RFD, Apartment No., City, Boro, Twp., State and ZIP Code) AT [1529 Ridge Road, Lancaster, PA 17603-1998 i. INUic ALL UNUSUAL S flVl • I DEPUTIZE HER Now, _20- 1 SHERIFF OF LANCASTER COUNTY, PA., do hereby deputize the Sheriff of County to execute the writ and make return thereof faof I ceding torlaw. This deputation being nnade at the request and risk of the plaintiff 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Deputized by Sheriff of Cumberland County, Pennsylvania NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Any deputy sheriff possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein or any loss, destruction or remo al of any, such whomever is found in w ro hert n in cuss d sale thereof. P P ybefo yof 9. SIGNATURE OF A O NEY R OTHER ORIGINATOR re sheriff's Print Name _ 10. TViotice NE NUMBER 11. DATE: Paul T. Scheme), Esquire (717) 00 __ May 11 1 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW:(This area must be completis to be mailed) Paul T. Schemel, Esquire - Dick, Stein, Schel 1, Wine & Frey, LLP -119 East Baltimore Street Greencastle, PA 17225 .............. .?.ts, s o n ?n n xnr r nin?rt n i n is®? wai?rn ac?ac 13.1 acknowledge receipt of the writ NAME of authorized LCSO Deputy or Clerk 14. Date Received 15. Exp a lr? or complaint as indicated above tion/Hearing D at Yvette Turco 717 723-4519 05/13/2011 05/3 16. 1 Hereby CERTIFY an RETURN t at I 1/2011 have personally served, i have legal evidence of service as s own in "Remarks", shown in "Remarks", the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the individual, have execute as ?m n cor roorA ertl ? anth return l 11 a in rt ed below b ha sdin?ra TR?U?E anted ATTESTED COPY thereof 18. ---..._...__ .... ..... .... ..... v, e and title of individual Served(if not shown above) (Relationship to Defendant) -U! 11 cit., nan lCU i 20. Address of where served (Complete only it different than Boro, TWP, State and ZIP Code) Attempts 24. Advance Costs R#0623,$150.00 30. Remarks: S.T.A.: Miles Dep.lnt Date Miles Dep.lnt Date 25. Service Costs 26. tary Costs 27. Mileage $82.50 I 19. F_ No Service See Remarks Below et or RFD, Apartment No., City, 21. Dante of Service 22 Time qM ? PM E.S.T/fEDS.T Riles Dep. lnt Date Miles Del intAils Date Miles Date i Miles ? t t S- 14 Dep.lnt ita /N.F 28. T 7XCos 29. COST D FOR ND G /,"? G?fl® ??A"' 4AeILJ ®I? /°-j.! ' / ?, .gtafd 31. AFFIRMED and subscribed to before me this _ SO ANSWER. 34. day of 37. Prothonotary/Deputy/Norary Public MY COMMISSION EXPIRES 20 32. Signature of Dep. Sheriff 33,[) 35. Signature of Sheriff 36. at / MARK S. REESE. _ 2 of 3 SHERIFFS OFFICE 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA, 17608-3480 - (717) 299-8200 3MCKIrr,tKVILL PROCESS RECEIPT, and AFFIDAVIT of RETURN 1. PLAINTIFF/S/ 2. COURT DOCKET NUMBER Albert L. Kirkner, Brian C. McNew and Trust Investment Group, LLC 11-3968 Civil 3 J. DEFENDANT/S/ 4. TYPE OF DOCUMENT TO BE SERVED Michael S. Glass, Margery Dana and DGK Properties, LP Complaint SERVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC., TO BE SERVED ???' Margery Dana 6. ADDRESS (Street or RFD, Apartment No., City, Boro, Twp., State and ZIP Code) AT [1525; Ridge Road, Lancaster, PA 17603-1998 .......... LINDICAT IIN 1 UA S I DEPUTIZE H R _ Now, 20 1 SHERIFF OF LANCASTER COUNTY, PA., do hereby deputize the Sheriff of County to execute the writ and make return thereof according to law. This deputation being made at the request and risk of the plaintiff Sheriff of Lancaster County 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: by Sheriff of Cumberland County, Pennsylvania Nv r c vnLT ArrLl"ISLC ON W RIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriffs sale thereof. 9. SIGN TURE OF ATT N Y OR OT ER ORIGINATOR Print Name 10. TELEPHONE NUMBER 11. DATE Paul T. Schemel, Esquire (717) 597-0200 May 10, 2011 12. SEND NOTICE OF VICE COPY TO NAME AND ADDRESS BELOW:(This area must be completed if notice is to be mailed) Paul T. Schemel, Esquire - Dick, Stein, Schemel, Wine & Frey, LLP -119 East Baltimore Street, Greencastle, PA 17225 r-- 13.1 acknowledge receipt of the writ NAME of authorized LCSO Deputy or Clerk 14. Date Received 15. Expiration/Hearing Date or complaint as indicated above Yvette Turco 717723-4519 05/13/2011 05/31/2011 16.1 Hereby CERTIFY and RETURN that I have personally served, have legal evidence o service ass own in "Remarks", have execute as shown in "Remarks", the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the individual, companv corporation etc at the address inserted below by handinn a Tai lF an,1 AT r!rTrn rnov.t.,,.,...c 18. Name an title of individual Served(if not shown above) (Relationship to Defendant) 19, F. No Service See Remarks Below 20. Address of where served (Complete only it different than shown above)(Street or RFD, Apartment No., City, 21. Date of Service 22. Time AM / PM Boro, TWP, State and ZIP Code) E53 / E.D.S.T 23. Attempts Da a Miles Dep. Int Date Miles Dep.lnt Date Miles Dep. Int Date Miles Dep. Int Date Miles Dep. Int 24. Advance Costs 25. Service Costs 26. Notary Costs 27. Mi age/Post N 28. Total Costs 29. COST DUE OR REFUND y3 30. Rea,. ks: 1y7 /4 S.T.A.: 31. AFFIRMED and subscribed to before me this 34. day of _ 37. Prothonotary/Deputy/Norary Public MY COMMISSION EXPIRES s0. 20? 32. Signature of Dep. Sheriff j35:. Signature of Sheriff MARK S. REE PA of_ ? SHERIFF'S OFFICE 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA, 17608-3480 - (717) 299-820 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT of RETURN 1. PLAINTIFF/S/ 2. COURT DOCKET NUMBER Albert L. Kirkner, Brian C. McNew and Trust Investment Group, LLC 11-3968 Civil 3. DEFENDANT/S/ 4. TYPE OF DOCUMENT TO BE SERVED .Ti Michael S. Glass, Margery Dana and DGK Properties, LP Complaint y SERVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION ETC., TO BE SERVED DGK Properties, LP (c/o Michael S. Glass) 6. ADDRESS (Street or RFD, Apartment No., City, Boro, Twp., State and ZIP Code) AT [1529 Ridge Road, Lancaster, PA 17603-1998 7. IN ICATE UNUSUAL SERVICE., F PDEPUTIZE I ? OTHER Now, _20,1 SHERIFF OF LANCASTER COUNTY, PA., do hereby deputize the Sheriff of tD County to execute the writ and make return thereof according to law. This deputation being made at the rt request and risk of the plaintiff Sheriff of Lancaster County 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Deputized by Sheriff of Cumberland County, Pennsylvania NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriffs sale thereof. 9. SIGNATURE OF A OR OTHE ORIGINATOR Print Name 10. TELEPHONE NUMBER 11. DATE IPaul T.. Schemel, Esquire 7)597-0200 May 10, 2011 12. SEND NOTICE OF SERVIC OPY TO NAME AND ADDRESS BELOW:(This area must be completed if notice is to be mailed) IPaul T. Schemel, Esquire - Dick, Stein, Schemel, Wine & Frey, LLP -119 East Baltimore Street, Greencastle, PA 17225 13.1 acknowledge receipt of the writ NAME of authorized LCSO Deputy or Clerk 14. Date Received 15. Expiration/Hearing Date or complaint as indicated above Yvette Turco 717 723-4519 05/13/2011 5/31/2011 16.1 Hereby CERTIFY and RETURN that I have personally served, have legal evi ence o service ass own in "Remarks", have executed as shown in "Remarks", the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the individual, com or lion h d r in rt low ndi R A E TED PY r of. _e . at 1. y 7 ere certl an return a ecause am una a to ocate t e in ivi ua , om an , cor oration, etc., name above. 18. Name and title of individual Served(if not shown above) (Relationship to Defendant) 119. F_. No Service See Remarks Below 20. Address of where served (C Boro, TWP, State and ZIP Code) or RFD, Apartment Time AM/ PM E.S.T f E.D.S.T 23. Attempts Date Miles Dep. Int Date Miles Dep. Int DatR Miles Dep. Int Date Miles Dep. Int Date Miles Dep. Int 24. Advance Costs 25. Service Costs 26. Notary Costs 27. M' eage/Pos a/N.F 28. Total Costs 29. COST DUE OR REFUND R#06113 30. Remarks: A 7' S.T.A.: 31. AFFIRMED and subscribed to before me this _ SO AN ER. 34. day of 20/d /S /'` "z?i°i? /? • 32. Signature of Dep. Sheriff 33.D 37' 35. Signature of Sheriff 36. to Prothonotary/Deputy/Norary Public Z . LIM I MY COMMISSION EXPIRES MARK 5. H ASTER COUNTY PA Change of Address or Boxholder Request Format - Process Servers (Letterhead Optional) Postmaster Date July 13. 2011 Lancaster. PA 17603 City, State, ZIP Code REQUEST FOR CHANGE OF ADDRESS OR BOXHOLDER INFORMATION NEEDED FOR SERVICE OF LEGAL PROCESS Please furnish the new address or the name and street address (if a boxholder) for the following: Name: Michael S. Glass Address: 1529 Ridge Road Lancaster. PA 17603 Note: The name and last known address are required for change of address information. The name, if known, and post office box address are required for boxholder information. The following information is provided in accordance with 39 CFR 265.6(d)(5)(ii). There is no fee for providing boxholder or change of address information. 1. Capacity of requester (e.g., process server, attorney, party representing self): Attorney 2. Statute or regulation that empowers me to serve process (not required when requester is an attorney or a party acting pro se - except a corporation acting pro se must cite statute): 3. The names of all known parties to the litigation: Albert L. Kirkner Brian C. McNew and Trust Investment Groun LLC, Plaintiffs v. Michael S Glass, Margery Dana and DGK Properties LP Defendants 4. The court in which the case has been or will be heard: Court of Common Pleas of Cumberland County PA 5. The docket or other identifying number if one has been issued: 11-3968 Civil 6. The capacity in which this individual is to be served (e.g., defendant or witness): Defendant WARNING THE SUBMISSION OF FALSE INFORMATION TO OBTAIN AND USE CHANGE OF ADDRESS INFORMATION OR BOXHOLDER INFORMATION FOR ANY PURPOSE OTHER THAN THE SERVICE OF LEGAL PROCESS IN CONNECTION WITH ACTUAL OR PROSPECTIVE LITIGATION COULD RESULT IN CRIMINAL PENALTIES INCLUDING A FINE OF UP TO $10,000 OR IMPRISONMENT OF NOT MORE THAN 5 YEARS, OR BOTH (TITLE 18 U.S.C. SECTION 1001). I certify that the above information is true and that the address information is needed and will be used solely for service of legal process in conjunction with actual or prospective litigation. n 1 Signat r J. Edgar Wine, Esquire Printed Name l A No change of _ address order on file. -Moved. left no forwarding address. Ne such address. USE ONLY Address 119 East Baltimore Street Greencastle. PA 17225 City, State, ZIP Code NEW ADDRESS OR BOXHOLDER'S NAME AND STREET ADDRESS EXHIBIT 011 U SP ?%? 8 Change of Address or Boxholder Request Format - Process Servers (Letterhead nntiannil Postmaster Date June 10, 2011 Lancaster, PA 17603 City, State, ZIP Code REQUEST FOR CHANGE OF ADDRESS OR BOXHOLDER INFORMATION NEEDED FOR SERVICE OF LEGAL PROCESS Please furnish the new address or the name and street address (if a boxholder) for the following: Name: Michael S. Glass Address: 1529 Ridge Road. Lancaster. PA 17603 Note: The name and last known address are required for change of address information. The name, if known, and post office box address are required for boxholder information. i The following information is provided in accordance with 39 CFR 265.6(d)(5)(ii). There is no fee for providing boxholder or change of address information. 1. Capacity of requester (e.g., process server, attorney, party representing self): Attorney 2. Statute or, regulation that empowers me to serve process (not required when requester is an attorney or a party acting pro se - except a corporation acting pro se must cite statute): 3. The names of all known parties to the litigation: Albert L. Kirkner, Brian C. McNew and Trust Investment Group LLC, Plaintiffs v. Michael S Glass, Margery Dana and DGK Properties LP Defendants 4. The court in which the case has been or will be heard: Court of Common Pleas of Cumberland County, PA 5. The docket or other identifying; number if one has been issued: 11-3968 Civil 6. The capacity in which this individual is to be served (e.g., defendant or witness): Defendant WARNING THE SUBMISSION OF FALSE INFORMATION TO OBTAIN AND USE CHANGE OF ADDRESS INFORMATION OR BOXHOLDER INFORMATION FOR ANY PURPOSE OTHER THAN THE SERVICE OF LEGAL PROCESS IN CONNECTION WITH ACTUAL OR PROSPECTIVE LITIGATION COULD RESULT IN CRIMINAL PENALTIES INCLUDING A FINE OF UP TO $10,000 OR IMPRISONMENT OF NOT MORE THAN 5 YEARS, OR BOTH (TITLE IS U.S.C. SECTION 1001). I certify that the above information is true and that the address information is needed and will be used solely for service of legal process in conjunction with actual or prospective litigation. a&--RP 119 East Baltimore Street Signature Address James M. Stein, Esquire Greencastle. PA 17225 Printed Name City, State, ZIP Code '? `?Y POST OFFICE USE ONLY MVl?",?? reSS __ No change of address order on file. NEW ADDRESS OR BOXHOLDER'S .A 7-?` POSTMARK Moved, left no forwarding address. AND STREET ADDRESS N" '9 PN No such address. jut y S ??P11 Change of Address or Boxholder Request Format - Process Servers (Letterhead Ontinnall Postmaster Date June 10, 2011 Lancaster, PA 17603 City, State, ZIP Code REQUEST FOR CHANGE OF ADDRESS OR BOXHOLDER INFORMATION NEEDED FOR SERVICE OF LEGAL PROCESS Please furnish the new address or the name and street address (if a boxholder) for the following: Name: Margery Address: 1529 Ridge Road. Lancaster. PA 17603 Note: The name and last known address are required for change of address information. "The name, if known, and post office box address are required for boxholder information. The following information is provided in accordance with 39 CFR 265.6(d)(5)(ii). There is no fee for providing boxholder or change of address information. 1. Capacity of requester (e.g., process server, attorney, party representing self): Attorney 2. Statute or regulation that empowers me to serve process (not required when requester is an attorney or a party acting pro se - except a corporation acting pro se must cite statute): 3. The names of all known parties to the litigation: Albert L. Kirkner, Brian C. McNees and Trust Investment Grou LLC, Plaintiffs v. Michael S Glass, Margery Dana and DGK Properties LP Defendants 4. The court in which the case has been or will be heard: Court of Common Pleas of Cumberland County PA 5. The docket or other identifying number if one has been issued: 11-3968 Civil 6. The capacity in which this individual is to be served (e.g., defendant or witness): Defendan t WARNING THE SUBMISSION OF FALSE INFORMATION TO OBTAIN AND USE CHANGE OF ADDRESS INFORMATION OR BOXHOLDER INFORMATION FOR ANY PURPOSE OTHER THAN THE SERVICE OF LEGAL PROCESS IN CONNECTION WITH ACTUAL OR PROSPECTIVE LITIGATION COULD RESULT IN CRIMINAL PENALTIES INCLUDING A FINE OF UP TO $10,000 OR IMPRISONMENT OF NOT MORE THAN 5 YEARS, OR BOTH (TITLE 18 U.S.C. SECTION 1001). I certify that the above information is true and that the address information is needed and will be used solely for service of legal process in conjunction with actual or prospective litigation. a,,, M. 119 East Baltimore Street Signature Address James M. Stein Esquire Greencastle. PA 17225 Printed Name City, State, ZIP Code POST OFFICE USE ONLY No change of address order on file. NEW ADDRESS OR BOXHOLDER'S NAME Moved, left no forwarding; address. AND STREET ADDRESS No such address. co U } 0 CID ?a J IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. McNEW Civil Action - Law and TRUST INVESTMENT GROUP, LLC, Plaintiffs V. No. 11-3968 Civil MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Hon. NOTICE OF CIVIL ACTION To: Michael S. Glass, Margery Dana & DGK Properties, LP, Defendants Please be advised that the above captioned Plaintiffs have commenced a lawsuit against you in the Cumberland County Court of Common Pleas by filing a Complaint in a civil action alleging breach of contract. Please read the following notice: Notice If you wish to defend, you must enter a written appearance personally or by attorney and file your defenses or objections in writing with the Court. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you without further notice for the relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE, YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LEGAL REFERRALS PA Bar Association Lawyer Referral Service (800) 692-7375 (PA only) (717) 238-6715 EXHIBIT C IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. McNEW and TRUST INVESTMENTGROUP, LLC, Plaintiffs V. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants To the Prothonotary: Civil Action - Law cm, Vq ? No. 11-3968 Civil - ' c n -<> ?>C-) c-, w i =a X Hon. ' °a 4+7 PRAECIPE TO REINSTATE COMPLAINT Please reinstate the Complaint in the above captioned matter, and please return the reinstated copies to me in the enclosed envelope. Thank you for your assistance with this matter, and please do not hesitate to contact me with any questions or concerns this may cause. Respectfully submitted, Date: Paul T. Schemel, Attorney for Plaintiffs Dick, Stein, Schemel, Wine & Frey, LLP 119 East Baltimore Street Greencastle, Pennsylvania 17225 (717) 597-0200 PA Bar No. 83958 &,4 Flo ?d Q C ! ?yto ao---?Uarm IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. McNEW and TRUST INVESTMENT GROUP, LLC, Plaintiffs V. Civil Action - Law No. 11-3968 Civil MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Hon. ORDER OF COURT C? T J F7'} IT IS SO ORDERED. By the Court, Judge -IF NOW on this day of I hA , 2011, the Court, having reviewed the foregoing Motion for Service by Publication and being fully advised in the premises, FINDS that the requested relief is appropriate. The Court therefore ORDERS that the Plaintiffs serve the Defendants by publication of the notice provided in Pa. R.C.P. 430, in a newspaper of general circulation in Lancaster County, Pennsylvania and in the Cumberland Law Journal. LAT Scheme (, gyp, ?na 018/11 a 2 h? w f71 rV co r - ., Co S PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Albert L. Kirkner, Brian C. McNees and Trust Investment Group, LLC vs. Michael S. Glass, Margery Dana and DGK Properties, LP (List the within matter for thecoext,., c. ; C ---------------------------------- rr _C-5 " _ " CC C , Z© sx Ca c) --t =n --C ca No. 11-3968 , Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: James M. Stein, Esquire - Dicker Stein, Schemel, Wine & Frey, LLP (Name and Address) 13 West Main Street, Suite 210, Waynesboro, PA 17268 (b) for defendants: Kelly M. Ariosto, Esquire - Buchanan. Ingersoll & Rooney. PC (Name and Address) One Oxford Centre, 301 Grant Street. 20th Floor. Pittsburgh.. PA 15219 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Paul T. Schemel Print your name Plaintiffs Attorney for Date: February 14, 2012 INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. av?4 -a 19. 7S Pd a J ALBERT L. KIRKNER, IN THE COURT OF COMMON PLEAS OF BRIAN C. MCNEW, AND CUMBERLAND COUNTY, PENNSYLVANIA TRUST INVESTMENT GROUP, LLC, V. MICHAEL S. GLASS, MARGERY DANA: AND DGK PROPERTIES, : NO. 11-3968 CIVIL IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE EBERT, J., MASLAND, J. AND PLACEY J. ORDER OF COURT AND NOW, this 18th day of June, 2012, upon consideration of the Preliminary Objections of the Defendants to Plaintiffs' Complaint, the briefs filed by the Parties and after oral argument; IT IS HEREBY ORDERED AND DIRECTED that the Defendants' Preliminary Objections to the Plaintiffs' Complaint are DISMISSED. Defendants shall file an Answer to Plaintiffs Complaint within 20 days of the date of this Order. By the Court, v James M. Stein, Esquire Attorney for Plaintiffs 13 West Main Street, Suite 210 Waynesboro, PA 17268 v' Timothy P. Palmer, Esquire Attorney for Defendants One Oxford Centre 20th Floor 301 Grant Street Pittsburgh, PA 15219 top C-5 /Ka 1?2, M L Ebert Jr J - . . , ., . co c e i c.,3 bas f l- IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW and TRUST INVESTMENT GROUP, LLC, CIVIL DIVISION G.D.: 11-3968 Plaintiffs, V. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, DEFENDANTS' ANSWER TO COMPLAINT AND NEW MATTER Defendants. Filed on behalf of Defendants, MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES Counsel of Record for this Party: NOTICE TO PLEAD: You are hereby notified to file a written response to the enclosed Answer to Complaint and New Matter within twenty (20) days of the date hereof. Timothy P. Palmer Pa. Id. No. 86165 Kelly M. Ariosto Pa. Id. No. 306473 Buchanan Ingersoll & Rooney PC Firm I.D. #038 C> One Oxford Centre 20th Floor zCU 301 Grant Street X M Pittsburgh, PA 15219 -?' (412) 562-8800 (telephone) s (412) 562-1041 (fax) x timothy.palmer@bipc.com > f+7 iu C r aa. c.? P^q rY't 3 ca-? IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW CIVIL DIVISION and TRUST INVESTMENT GROUP, LLC G.D.: 11-3968 Plaintiffs, V. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, Defendants. DEFENDANTS' ANSWER TO COMPLAINT AND NEW MATTER Michael S. Glass ("Glass"), Margery Dana ("Dana") and DGK Properties, LP ("DG " together with Dana and Glass, "Defendants"), by and through their undersigned Buchanan Ingersoll & Rooney PC hereby files this Answer to Complaint and New Matter, and in support thereof, respectfully state as follows: 1. Defendants are without knowledge or information sufficient to form a belief aslto the allegations set forth in Paragraph 1 of the Complaint. 2. Defendants are without knowledge or information sufficient to form a belief asl to the allegations set forth in Paragraph 2 of the Complaint. 3. Defendants are without knowledge or information sufficient to form a belief the allegations set forth in Paragraph 3 of the Complaint. 4. Admitted. 5. Admitted. to 6. Admitted. Count I - Breach of Contract - Plaintiffs v. DGK 1-6. Paragraph 1-6 is a paragraph of incorporation to which no response is due and owing under the Pennsylvania Rules of Civil Procedure. Defendants' responses to Paragraphs 6 of the Complaint are incorporated herein by reference. 7. Denied. The Mortgage and Mortgage Notes are documents which speak themselves. To the extent the allegations of Paragraph 7 contradict the terms of the Mortga e and Mortgage Note, those allegations are expressly denied. Further, Defendants are with cut knowledge or information sufficient to form a belief as to whether Plaintiffs are the holders of the Mortgage and Mortgage Note, therefore that allegation is also denied. 8. Defendants admit that all of the payments on the Mortgage Note have not made. Defendants deny the remaining allegations of Paragraph 8 of the Complaint insofar Defendants are not required to make separate payments to McNew and Kirkner and strict proof is demanded at trial. Defendants admit that all of the payments on the Mortgage Note have not been made strict proof is demanded at trial. 9. Denied. Defendants are without knowledge or information sufficient to forO a belief as to the balance that may be due and owing under the Note referenced in Paragraph 9. Strict proof is demanded at trial. Count II - Breach of Contract - Plaintiffs v. Dana and Glass 1-10. Paragraph 1-10 is a paragraph of incorporation to which no response is due owing under the Pennsylvania Rules of Civil Procedure. Defendants' responses to Paragraphs 1- 1 of the Complaint are incorporated herein by reference. 10. Denied. The Guaranty is a document which speaks for itself. To the extent tb allegations of Paragraph 11 contradict the terms of the Note, those allegations are expresst denied. Further, Defendants are without knowledge or information sufficient to form a belief ? to whether Plaintiffs are the holders of the Guaranty, therefore that allegation is denied and stril proof is demanded at trial. 11. Denied. Defendants are without knowledge or information sufficient to form belief as to the balance that may be due and owing under the Guaranty referenced in Paragra? I 11. Strict proof is demanded at trial. 12. Denied. The allegations set forth in Paragraph 13 of the Complaint are so vag? and unintelligible that Defendants cannot reasonably form a response thereto. To the extent that Plaintiffs allege in Paragraph 13 that the mortgage referenced therein was assigned to Plaint ff Trust Investment Group, said allegation is specifically denied. To the extent that Plaintiffs alle e that indebtedness remains due and owing under the debt instrument secured by the mortgage referenced in Paragraph 13, said allegation is also specifically denied. As explained more fu ly in Defendants' New Matter, the note secured by the mortgage referenced in Paragraph 13 of the Complaint was refinanced, which refinancing is evidenced by a new Note, a copy of which is attached to the Plaintiffs' Complaint as Exhibit "A." Likewise, the mortgage referenced in Paragraph 13 was replaced by a new Mortgage, a copy of which is attached to the Plaintiffs' Complaint as Exhibit "A.". Moreover, the guaranty referenced in Paragraph 13 of the Complaint is no longer valid, and does not guaranty any indebtedness secured by the Note referenced in Paragraph 7 of the Complaint. It is expressly and specifically denied that Defendant Dana as any liability to the Plaintiff or to anyone under the Guaranty attached to the Complaint as Exhibit "C," and strict proof of the same is demanded at trial. 13. Denied. Defendants are without knowledge or information sufficient to form belief as to the balance that may be due and owing under the Guaranty attached to the Comply as Exhibit "C." Defendant Dana's liability under the guaranty attached to the Complaint Exhibit "C" is expressly denied. On the contrary, Defendant Dana has no liability and N improperly named as a defendant in this action. Strict proof is demanded at trial. 14. Denied. Defendant Dana's liability under the guaranty attached to the C as Exhibit "C" is expressly denied. On the contrary, Defendant Dana has no liability and improperly named as a defendant in this action. Moreover, strict proof of any liability Defendant Glass is demanded. WHEREFORE, Defendants respectfully request that the Complaint is dismissed in entirety, together with such other and further relief as is just and proper. FACTS COMMON TO NEW MATTER 1. On or about October 12, 2007, Trust Investment Group made a loan (the Loan") to DGK. The 2007 Loan was evidenced by a Mortgage Note dated October 12, 20, executed by DGK in favor of Trust Investment Group in the amount of $3,200,000.00 (the "20 Note"). A true and correct copy of the 2007 Note, which was referenced by the Plaintiffs Paragraph 13 of the Complaint, is attached hereto as Exhibit 1. 2. The 2007 Loan was secured by a Mortgage executed by DGK in favor of Investment Group (the "2007 Mortgage") and a guaranty executed by Ms. Dana, Ms. Glass two others (the "Dana Guaranty"). A true and correct copy of the 2007 Mortgage, which referenced by the Plaintiffs in Paragraph 13 of the Complaint, is attached hereto as Exhibit 2. )7 in true and correct copy of the Dana Guaranty is attached to the Complaint as Exhibit "C." 3. In 2009, the 2007 Loan was refinanced. Plaintiffs Kirkner and McNew were refinancing lenders. 4. As part of the refinancing, and as consideration for not requiring Ms. Dana the two other individuals to be guarantors of the refinanced debt, a considerable pay down made by DGK. The 2009 loan (the "2009 Loan") was for $2,200,000. 5. To evidence the new loan, DGK executed and delivered a brand new Note dated November 3, 2009 in the original principal amount of $2,200,000 to Kirkner and McNew. A true and correct copy of the Mortgage Note is attached to the Plaintiffs' Complaint as Exhibit A. 6. In connection with the refinancing, Kirkner and McNew required the execution a brand new mortgage (the "2009 Mortgage") and a brand new guaranty of Defendant Glass ( "2009 Glass Guaranty"). A copy of the 2009 Mortgage is attached to the Plaintiffs' as Exhibit A. A true and correct copy of the 2009 Glass Guaranty is attached to the Plaintiffs' Complaint as Exhibit B. 7. Kirkner and McNew did not require the other three individuals on the Guaranty, including Ms. Dana, to execute a new guaranty, nor was their consent to the new - and the new loan terms - ever obtained. 8. Kirkner and McNew did not require a new guaranty or consent because Ms. and the other two individuals on the 2007 Loan were not intended to be guarantors of the Loan. 9. In April of 2011, Plaintiffs filed the Complaint asserting breach of contract against Defendants. Plaintiffs' breach of contract claim against DGK is based on its failure to make payments due under the 2009 Note. 10. The breach of contract claim against Mr. Glass is based on its alleged failure make payments due under the 2009 Glass Guaranty. However, Plaintiffs' breach of claim against Ms. Dana is based on the 2007 Dana Guaranty. NEW MATTER 11. Defendants incorporate all prior responses and allegations herein by reference. 12. Plaintiffs' Complaint is barred, in whole or in part, because it fails to state a upon which relief can be granted. 13. Plaintiffs' Complaint is barred, in whole or in part, to the extent that any claim not ripe for adjudication. 14. Plaintiffs' Complaint is barred, in whole or in part, because Plaintiffs lack standing with respect to its claims against Defendant Dana. 15. Plaintiffs' Complaint is barred, in whole or in part, by the equitable principles estoppel, unclean hands, and waiver. 16. Plaintiff Complaint is barred, in whole or in part, under the doctrines of and accord and satisfaction. 17. Plaintiffs' allegations against Defendant Dana fail to state a claim because Defendant Dana has no obligations to Plaintiffs under any of the instruments attached to the Complaint. 18. Plaintiffs' allegations against Defendant Dana fail because Defendant Dana released as guarantor from the underlying loan obligations. 19. Plaintiffs' allegations against Defendant Dana fail to state a claim because did not breach any obligation to Plaintiffs under any of the instruments attached to the Complaint. 20. Defendant Dana has no obligations to the Plaintiffs because, to the extent Dana has any existing obligations under the Dana Guaranty attached to the Complaint as Exhibit "C, the Plaintiffs materially modified the underlying loan without Defendant Dana's consent, modification caused Defendant Dana's obligations under the Dana Guaranty to be discharged. 21. Defendant Dana has no obligations to the Plaintiffs because, to the extent that Dana has any existing obligations under the Dana Guaranty attached to the Complaint as Exhi "C", the material modifications to the underlying loan substantially increased the risks unto Defendant Dana without Defendant Dana's consent, which caused Defendant Dana's o under the Dana Guaranty to be discharged. 22. Defendant Dana has no obligations to the Plaintiffs because, to the extent Dana has any existing obligations under the Dana Guaranty attached to the Complaint as Exhibit "C,' Plaintiffs have impaired Defendant Dana's subrogation rights, which caused Defendant Dana's obligations under the Dana Guaranty to be discharged. 23. Defendants hereby give notice that they intend to rely upon such other and defenses as may become available or apparent during discovery in this case, and hereby the right to amend this Answer and New Matter to Plaintiffs Complaint to assert any such defense. WHEREFORE, Defendants respectfully request that the Complaint is dismissed in entirety, together with such other and further relief as is just and proper. Respectfully submitted, Dated: July 6, 2012 BUCHANAN INGERSOLL & ROONEY PC By: Timothy P. almer, Pa. Id. No. 86165 Kelly M. Ariosto, Pa. Id. No. 36743 One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219 (T): 412-562-8800 (F): 412-562-1041 UNSWORN VERIFICATION l Michael S. Glass, verify that I have read the foregoing Defendants' Answer. New Matter and Counterclaims, that I am authorized to make this Verification on Defendants' behalf and that the statements of fact therein 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 § 4904 relating to unsworn falsifications to authorities. Dated: 7/5/12 IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW CIVIL DIVISION and TRUST INVESTMENT GROUP, LLC G.D.: 11-3968 Plaintiffs, V. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES Defendants. CERTIFICATE OF SERVICE I, hereby certify that on July 6, 2012, I caused a true and correct copy of the DE Answer and New Matter to be served upon the persons listed below via U.S. Mail and mail: Paul T. Schemel Dick, Stein, Schemel, Wine & Frey LLP 119 East Baltimore Street Greencastle, Pennsylvania 17225 Timothy #8635764-v2 MORTGAGE NOTE O ? tl G sy o a L i9 a ? U L $ 3,200,000.00 Lancaster, Pennsylv nia October 12, 2 07 For Value Received, DGK PROPERTIES, LP, a Pennsylvania limited partnership, having a mailing address of P. O. Box 1998, Lancaster, PA 17608-1998 (hereinafter called Mortgagor) promises to pay to the order of TRUST INVESTMENT GROUP, LLC, a Pennsylvania limited liability company, having a mailing address of 95 Brim Blvd., Chambersburg, PA 17201 (hereinafter called "Mortgagee"), its successors or assigns, in lawful money of the United States of America, the sum of THREE MILLION TWO HUNDRED THOUSAND DOLLARS ($3,200,000.00) and any additional moneys loaned or advanced by any holder hereof as hereinafter provided, as follows: The foregoing principal sum, without interest except in the event of default, payable in two annual Installments: $500,000.00, on or before October 12, 2008, and the remai der, $2,700.000.00, on or before October 12, 2009; In addition thereto, in the event ofdefault hereunder, the Mortgagor agrees to pay interest on the amount due hereunder, until anal payment, at the rate of "Prime" as periodically reported in the Wall Street Journal, pl s four (4%) percent; all payments to be made at 95 Brim Blvd., Chambersburg, Pennsylvania 17201 or elsewhere as shall be directed by any holder hereof. This Note shall evidence, and the Mortgage given to secure its payment, shall cover and be security for any future loans or advances that may be made to or on behalf of the Mortgagor by any holder hereof at any time or times hereafter and intended by the Mortgagor and the then holder to be so evidenced and secured, as well as any sums aid by any holder hereof pursuant to the terms of said Mortgage, and any such loans, advances or payments shall be added to and shall bear interest at the same rate as t e principal debt, In case default be made for the space of thirty (30) days in the payment of any installment of principal, or interest, or in the performance by the Mortgagor of any of he other obligations of this Note or said Mortgage, the entire unpaid balance of the principal debt, additional loans or advances and all other sums paid by any holder hereof to or on behalf of the Mortgagor pursuant to the terms of this Note or said Mortgage, together with unpaid interest thereon, shall at the option of the holder and without notice become immediately due and payable, and one or more executions may forthwith issue on an judgements obtained by virtue hereof; and no failure on the part of any holder hereo to exercise any of the rights hereunder shall be deemed a waiver of any such rights or o any default hereunder. The Mortgagor hereby empowers any attorney of any court of record within the U ited States of America or elsewhere to appear for the Mortgagor and, with or without comp laint filed, confess judgment, or a series of judgments, against the Mortgagor in favor of an y holder hereof, as of any term, for the unpaid balance of the principal debt, additional oans or advances and all other sums paid by the holder hereof to or on behalf of the Mortga gor pursuant to the terms of this Note or said Mortgage, together with unpaid interest thereon, costs of suit and an attorney's commission for collection of ten per cent (100A ) of the total indebtedness, or $1,500.00, whichever is greater, on which judgment or judgments one or more executions may issue forthwith upon failure to comply with a y of the terms and conditions of this Note or said Mortgage. To the extent permitted by la , EXHIBIT 1 the Mortgagor hereby forever waives: (1) the necessity of filing any affidavit of non military service; (2) all notice of levy as well as any right to request a release from iF from any and all real and personal property levied upon or attached; (3) all defects c irregularity in any writ of execution, levy, foreclosure or service, any law, usage or ct to the contrary notwithstanding. 0 ;aa 4 ? w N P N x L U C L This Mortgage Note is subject to Mortgagor's right of offset for fees, costs, expe and charges arising from indemnifications granted by Mortgagee to Mortgagor for a liability incurred due to tax or title considerations, or due to the assignment of that excavating contract between Mortgagee and Affordable Excavating & Hauling, Inc. This obligation shall bind the Mortgagor and the Mortgagor's heirs, executors, administrators, successors and assigns, and the benefits hereof shall inure to the Mortgagee hereof and its successors and assigns. This Note is assignable by the Mortgagee. This Note is secured by a Mortgage of even date herewith upon real estate descril therein. Witness: DGK Properties, LP, by DGK RE, LLC, its General Partner BY By MORTGAGE Made this day of October, 2007, 1 i Between DGK PROPERTIES, LP, a Pennsylvania limited partnership, having a mailing address F.O. Box 1998, Lancaster, PA 17608-1998, (hereinafter called "Mortgagor") And TRUST INVESTMENT GROUP, LLC, a Pennsylvania limited liability company, having a mailing address of 95 Brim Blvd., Chambersburg, PA 17201 (hereinafter called "Mortgagee"). WHEREAS, Mortgagor has executed and delivered to Mortgagee a certain Mortgag Note (hereinafter called the Note) of even date herewith, payable to the order of Mortgagee in the principal sum of THREE MILLION TWO HUNDRED THOUSAND DOLLARS ($3,200,000.00), lawful money of the United States of America, and has provided therein for payment of any additional moneys loaned or advanced thereunder by Mortgagee, together with interest thereon at the rate provided in the Note, in the mann r and at the times therein set forth, and containing certain other terms and conditions, all of which are specifically Incorporated herein by reference; NOW, THEREFORE, Mortgagor, intending to be legally bound, and in consideration of said debt and as security for the payment of the same and interest as aforesaid, together with all other sums payable hereunder or under the terms of the Note, does grant and convey unto Mortgagee, its successors and assigns: ALL the following described real estate lying and being situate in Cumberland County, Pennsylvania, bounded and described as follows: See Attached Exhibit 14A" L 0 a 3 i? z oa L C ? .s TOGETHER with the buildings and improvements erected thereon, the appurtena thereunto belonging and the reversions, remainders, rents, issues and profits thereof. TO HAVE AND TO HOLD the same unto Mortgagee, its successors and assigns, forever. PROVIDED, HOWEVER, That if Mortgagor shall pay to Mortgagee the aforesaid d or principal sum, including additional loans or advances and all other sums payable by Mortgagor to Mortgagee hereunder and under the terms of the Note, together with inter thereon, and shall keep and perform each of the other covenants, conditions and agreements hereinafter set forth, then this Mortgage and the estate hereby granted and conveyed shall become void. THIS MORTGAGE is executed and delivered subject to the following covenants, conditions and agreements: (1) The Mortgagor shall pay the said debt together with interest thereon at the rate provide) in the Note in the manner and at the times set forth in the Note. EXHIBIT 2 (2) The Note secured hereby shall evidence, and this Mortgage shall cover and be securit for, any future loans or advances that may be made by Mortgagee to Mortgagor at any time or time hereafter and Intended by Mortgagor and Mortgagee to be so evidenced and secured, and such loans and advances shall be added to the principal debt, N u u_ o o C? n q W F E ,y o a y?j p = A C R_ L) S U J (3) From time to time until said debt and interest are fully paid, Mortgagor shall: (a) pay nd discharge, when and as the same shall become due and payable, all taxes, assessments, sewer nd water rents, and all other charges and claims assessed or levied from time to time by any lawful authority upon any part of the mortgaged premises and which shall or might have priority in lien or payment to the debt secured hereby, (b) pay all ground rents reserved from the mortgaged premises and pay and discharge all mechanics' liens which may be filed against said premises and which s all or might-have priority in lien or payment to the debt secured hereby, (c) pay and discharge any documentary stamp or other tax, including interest and penalties thereon, if any, now or hereafter becoming payable on the Note evidencing the debt secured hereby, (d) provide, renew and keep alive by paying the necessary premiums and charges thereon such policies of hazard and liability insurance as Mortgagee may from time to time require upon the buildings and Improvements now or herea er erected upon the mortgaged premises, with loss payable clauses in favor of Mortgagor and Mortgagee as their respective interest may appear, such policies to be deposited as collateral secured with tie Mortgagee, and (e) promptly submit to Mortgagee evidence of the due and punctual payment of ill the foregoing charges; provided, however, that Mortgagee may, at it's option, require that sums sufficient to discharge the foregoing charges to be paid in installments to Mortgagee. (4) Mortgagor shall maintain all buildings and improvements subject to this Mortgage in good and substantial repair, as determined by Mortgagee. Mortgagee shall have the right to enter upon the mortgaged premises at any reasonable hour for the purpose of inspecting the order, condition an repair of the buildings and improvements erected thereon. Mortgagor warrants title to the mortgaged premises. (5) In the event Mortgagor neglects or refuses to pay the charges mentioned at (3) above, or fails to maintain the buildings and improvements as aforesaid, Mortgagee may do so, add the cos thereof to the principal debt secured hereby, and collect the same as part of said principal debt. (5) Mortgagor covenants and agrees not to create, nor permit to accrue, upon all or any part of the mortgaged premises, any debt, lien or charge which would be prior to, or on a parity with, the lien of this Mortgage, Mortgagor shall comply with all laws, ordinances, regulations, and orders of all Federal, State, Municipal and other governmental authorities relating to the Mortgaged premises. (7) In case default be made for the space of thirty (30) days in the payment of any installn of principal, or Interest pursuant to the terms of the Note, or in the performance by Mortgagor of of the other obligations of the Note or this Mortgage, the entire unpaid balance of said principal s( additional loans or advances and all other sums paid by Mortgagee pursuant to the terms of the N or this Mortgage, together with unpaid interest thereon shall at the option of Mortgagee and with( notice become immediately due and payable, and an action of mortgage foreclosure may be brow forthwith on this Mortgage and prosecuted to judgment, execution and sale for the collection of tF same, together with costs of suit and attorney's commission for collection of ten per cent (10%) c total indebtedness or fifteen hundred ($1,500.00) dollars, whichever is greater. To the extent permitted by law, Mortgagor hereby forever waives (a) the necessity of filing any affidavit of non- military service; (b) all notice of levy as well as any right to request a release from levy from any all real and personal property levied upon or attached; and (c) the benefit of all appraisement, Ste and exemption laws and all bankruptcy or insolvency laws now in force or hereinafter passed, any usage or custom to the contrary notwithstanding. (8) From time to time upon notice given by Mortgagor, Mortgagee will release from this mortgage certain parcels included within the Real Estate upon the condition that the fair market v as reasonably determined by the holder of the Mortgage Note, of the remaining parcels described above, is at least equal to 120% of the remaining balance due under the Mortgage Note, any m, Dte ut ht the nd law, lue, THIS mortgage and the note executed and delivered to mortgagee herewith Is not assignable and may not be assumed by any other person or legal entity. Except as described and allowed In Section 8, above, if all or part of the real estate described herein, or an interest therein, Is sold, transferred or conveyed by the Mortgagor, or upi any transfer of possession of the real estate described herein by the Mortgagor whethe by conveyance, long-term lease, installment sales agreement, or otherwise, the entire unpaid balance of the said principal sum and all other sums paid by Mortgagee pursuai to the terms of the note or this mortgage, together with unpaid interest thereon, shall become immediately due and payable to Mortgagee. The provisions of this paragraph shall not apply to (a) transfer by devise, descent, or by operation of law upon death of joint tenant or tenant by the entireties, or (b) grant of any leasehold interest of three years or less not containing an option to purchase. THIS mortgage is taken by the Mortgagee to secure the repayment of money actually advanced by the Mortgagee to or on behalf of the Mortgagor at the time the Mortgagor acquires title to the property herein described, and used by the Mortgagor at that time pay all or part of the purchase price of said real estate, and this mortgage is expressly stated to be a purchase money mortgage. AND it is expressly certified and declared that this indenture of mortgage is subject, it lien and priority of payment, to a certain mortgage to secure the payment of the princi sum of $8,000,000.00 (Eight Million Dollars), given by said Mortgagor to First Commonwealth Bank, dated October 12, 2007, and recorded in Cumberland County, P Instrument No. . This Mortgage shall be subordinate In both and priority of payment to, and Mortgagee shall execute subordination agreements as requested from time to time by, Mortgagor's institutional lenders providing initial acqu and development funds from time to time. THE covenants, conditions and agreements contained in this Mortgage shall bind, and benefits thereof shall inure to, the respective parties hereto and their respective heirs, executors, administrators, successors and assigns, and if this Mortgage is executed by than one person, the undertakings and liability of each shall be joint and several. WITNESS the due execution hereof the day and year first above written, N V >r s O U d a U n N YI [ E R V Witness: DGK Properties, I! P, by DGK RE, ILLC, its General Partner By Vllchael. Glass Member By Victor Klcera, Member both al ., as en re COMMONWEALTH OF PENNSYLVANIA: SS: COUNTY OF Lancaster: On this May of October. 2007, before me, a notary public, personally Michael S. Glass and Victor Kicera, members of DGK RE, LLC, a Pennsylvania limited liability company, known to me or satisfactorily proven to be the persons whose named are subscribed to the within instrument and acknowledged that they executed the same In the capacities therein stated and for the purp se therein contained. In Witness Whereof, I hereunto set my hand and official seal. Notary Pu COMMONWEALTH OF PENNSYLVANIA Motartal Seel Pamota R, Hmtetter, Notry Polo QY Of Lff=3ter. Lgn atbrC unty My 100mml6-14an 6*= 8vL $1, 2Q91 M€mber, penneyivanla,As?eQtellaa at NateNQa N u u w o ? d a LL .4 n3e r C V L B °r (; E q U s, Certificate of Residence of Mortgagee I hereby certify that Mortgagee's precise address is: 95 Brim Boulevard, Chambersburg, PA 17201 Date: for Mortgagee ALL THAT CERTAIN tract of land located on the north side of Ritner High-way (SR- 011), also known as US Route 1 I and on the west side of Newville Road (SR-0533), also know as PA Route 533, said tract is situate partly in Southampton Township and situate partly in Shippensburg Township, Cumberland County, Pennsylvania, more fully on a Final Subdivision and Land Development Plan of "Deerfield" prepared by ELA Group, Inc. and recorded as Instrument No. 200739185, said tract of land bounded and described as follows: BEGINNING at a point in the centerline intersection of Ritner Highway and Newville Road, thence in the centerline of Ritner Highway, on a curve concave to the south having a central angle of 2° 07' 08", a radius of 11,459.16', an are length of 423.79', and the chord there( being South fifty-four degrees twenty-eight minutes fifty-seven seconds West, four hundred twenty-three and seventy-seven hundredths feet (S 54° 28' 57" W - 423.77), to a point in Ritne: Highway; thence continuing in the centerline of Ritner Highway, South fifty-three degrees twenty-five minutes twenty-three seconds West, one thousand two hundred eighty-six and fifty- four hundredths feet (S 53° 25' 23" W - 1,286.54') to a point in the centerline of Ritner Highway; thence continuing in the centerline of Ritner Highway, on a curve concave to the Bout having a central angle of 8° 30' 00", a radius of 5,729.58', an arc length of 850.00', and the choi thereof being South forty-nine degrees ten minutes twenty-three seconds West, eight hundred forty-nine and twenty-Wo hundredths feet (S 49' 10' 23" W - 849.22'), to a point in the centerline of Ritner Highway; thence continuing in the centerline of Ritner Highway, South fort four degrees fifty-five minutes twenty-three seconds West, three hundred eighty-four and eighty three hundredths feet (S 44' 55' 23" W - 384.83'), to a point in the centerline of Ritner Highway thence leaving Ritner Highway, partially by lands of Amerigas Propane, LP, North forty-five degrees fifty-six minutes thirty-one seconds West, twenty-five and zero hundredths feet (N 45° 56' 31" W - 25.00'), to a point on the existing northern right-of- way line of Ritner Highway; thence along the existing northern right-of-way line of Ritner Highway, North forty-four degree: fifty-five minutes twenty-three seconds East, three hundred eighty-five and twenty hundredths feet (N 44° 55' 23" E - 385.20'), to a point on the existing northern right-of-way line of Ritner Highway; thence continuing on the existing northern right-of-way line of Ritner Highway on a curve concave to the south having a central angle of 00° 28' 13", a radius of 5,754.28', an arc length of 47.22', and the chord thereof being North forty-five degrees nine minutes twenty-nine seconds East, forty-seven and twenty-two hundredths feet (N 45° 09' 29" E - 47.22'), to a point on the northern existing right-of-way line of Ritner Highway; thence leaving the northern right- of-way line of Ritner Highway, by Lot No. I of "Deerfield", North forty-four degrees thirty-six minutes twenty-five seconds West, two hundred eighty and thirty-five hundredths feet (N 44° 36 25" W - 280.35'), to a point; thence continuing by Lot No. 1 of "Deerfield", North forty-six degrees zero minutes forty-nine seconds East, three hundred seventeen and twenty hundredths feet (N 46° 00' 49" E - 317.20') to a point; thence continuing by Lot No. 1 of "Deerfield", Nortl seventy-three degrees fifty-five minutes forty-three seconds East, forty-five and one hundredths feet (N 73' 55' 43" E - 45.01) to a point on the western right-of-way line of Deerfield Lane; thence along the western right-of-way line of Deerfield Lane on a curve concave to the east, having a central angle of 30° 4 P 27", a radius of 530.00', an are length of 283.90', and the chord thereof being North zero degrees forty-three minutes thirty-four seconds West, two hundred EXHIBIT "A" eighty and fifty-one minutes (N 00° 43' 34" W - 280.51'), to a point on the western right-of-way line of Deerfield Lane; thence continuing on the western right-of-way line of Deerfield Lane, North fourteen degrees thirty-seven minutes nine seconds East, one hundred fifteen and twenty- one hundredths feet (N 14° 37' 09" E - 115,21% to a point on the western right-of-way line of Deerfield Lane; thence continuing on the western right-of-way line of Deerfield Lane on a curve concave to the west having a central angle of 74' 13' 16", a radius of 595.00', an arc length of 770.76', the chord thereof being North twenty-two degrees twenty-nine minutes twenty-nine seconds West, seven hundred seventeen and ninety-nine hundredths feet (N 22' 29' 29" W - 717.99% to a point on the western right-of -,vay line of Deerfield Lane; thence leaving the western right-of-way line of Deerfield Lane and by Lot No. 3 of "Deerfield", South thirty-six degrees fifty minutes fifty-seven seconds West, one thousand six hundred thirty-nine and sixteei hundredths feet (S 36° 50' 57" W - 1,639.16') to a point on line of lands of Shippensburg Mobil Estates, Inc.; thence by lands of Shippensburg Mobile Estates, Inc., North forty-five degrees fou minutes five seconds West, nine hundred two and ninety-nine hundredths feet (N 45° 04' 05" W 902.99'), to a point; thence continuing by lands of Shippensburg Mobile Estates, Inc., South forty-six degrees five minutes two seconds West, one thousand one hundred ninety-five and fit five hundredths feet (S 46' 05' 02" W - 1,195.55') to a point; thence continuing by lands of Shippensburg Mobile Estates, Inc., South thirty-six degrees forty-one minutes thirteen seconds East, four hundred ninety-nine and twenty hundredths feet (S 36' 41' 13" E - 499.20'), to a poinl thence continuing by lands of Shippensburg Mobile Estates, Inc., South forty-six degrees thirtee minutes fifty-nine seconds East, six hundred ninety-six and twenty-eight hundredths feet (S 46° 13' 59" E - 696.28'), to a point, being the northeastern corner of lands of Pennsylvania Electric Co.; thence by lands of William S. & Mary T. Craig, North forty-six degrees thirty-two minutes one second West, six hundred ninety-six and seventy-one hundredths feet (N 46° 32' 01" W - 696,71% to a point; thence by lands of Paul E. & Grace Hornbaker, North thirt)-six degrees forty-one minutes forty-five seconds West, five hundred and ninety-three hundredths feet (N 36° 41' 45" W - 500.93'), to a point; thence by lands of Laverne B. & Norene S, Sensenig, North forty-six degrees five minutes two seconds East, one thousand four hundred thirty-one and ninety-four hundredths feet (N 46° 05' 02" E - 1,431.94'), to a 1" iron pipe (found); thence continuing by lands of Laverne B. and Norene S. Sensenig, North fifty degrees forty-trio minute; twenty-eight seconds West, five hundred forty and twenty-two hundredths feet (N 50° 42' 28" W - 540.22'), to a No. 5 rebar (set); thence continuing by lands of Laverne B. and Norene S. Sensenig, North fifteen degrees thirty-four minutes fifty seconds East, one hundred ninety-five and sixteen hundredths feet (N 15° 34' 50" E - 195.16'), to a 1" iron pipe (found); thence continuing by lands of Laverne B. and Norene S. Sensenig, North fifteen degrees fifty-four minutes two seconds East, six hundred thirty-four and eighty-eight hundredths feet (N 15° 54' 02" E - 634.88'), to a I" iron pipe (found); thence by lands of Ray E. and Jean L. Thrush, North eighty-five degrees zero minutes thirty-five seconds East, eight hundred forty-two and ninety- three hundredths feet (N 85° 00' 35" E - 842.93'), to a 1" iron pipe (found); thence by lands of The Chester L. Smith and Pauline M. Smith Revocable Trust, North eighty-five degrees fifty-twc minutes twelve seconds East, one thousand seven hundred eighty-six and fifty hundredths feet (1\ 85° 52' 12" E - 1,786.50'), to a 1" iron pipe (found); thence continuing by lands of The Chester L. Smith and Pauline M. Smith Revocable Trust, North thirty-nine degrees fifty-three minutes EXHIBIT "A" sixteen seconds East, seventy-four and twenty-six hundredths feet (N 39° 53' 16" E - 74.26'), to a no. 5 rebar (set); thence continuing by lands of The Chester L. Smith and Pauline M. Smith Revocable Trust, South forty-seven degrees twenty-eight minutes two seconds East, three hundred twenty-one and ninety-three hundredths feet (S 47° 28' 02" E - 321.93"), to a 30" chen tree; thence continuing by lands of The Chester L. Smith and Pauline M. Smith Revocable Trust North forty-two degrees forty-four minutes twenty-three seconds East, five hundred thirteen and one hundredth feet (N 42° 44' 23" E - 513.01') to a fence post; thence continuing by lands of Th Chester L. Smith and Pauline M. Smith Revocable Trust, South thirty-five degrees thirty-nine minutes thirty-three seconds East, eighty-five and seventy-six hundredths feet (S 35° 39' 33" E -, 85.76'), to a railroad spike (found) in the old roadbed of Newville Road; thence in and along Newville Road, South twenty-five degrees twenty-one minutes five seconds East, two hundred twenty-four and nine hundredths feet (S 25' 21' 05" E - 224.09'), to a point in or near the existing centerline of Newville Road; thence in or near the centerline of Newville Road, South twenty-nine degrees forty-five minutes ten seconds East, eight hundred fifty-nine and fifty-five hundredths feet (S 29° 45' 10" E - 859.55'), to a point in the centerline intersection of Newville Road and Ritner Highway, the point of Beginning. CONTAINING 127.544 Acres BEING THE SAA1E PREMISES which Trust Investment Group, LLC, a Pennsylvania Limited Liability Corporation, by deed dated even date herewith and intended for immediate recording in the Office for the Recorder of Deeds in and for Cumberland County, Pennsylvania, granted and conveyed unto DGK Properties, LP its successors and assigns. EXHIBIT "A" 1 r•a IN THE COURT OF COMMON PLEAS OF THE 39r'' JUDICIAL DISTICT~~.-, - OF PENNSYLVANIA -CUMBERLAND COUNTY BRANCH s~Ttr,., ~ ~ ~ _ ',, : 3 ~."' _.. ALBERT L. KIRKNER, BRIAN C. 1VICNEW Civil Action -Law ~~ -~ ~',`~ and TRUST INVESTMENT GROUP, LLC, .~~ -o' =-~- Plaintiffs ~_~~,' ~~` ';~F`; n` c ._., v. No. 11-3968 Civil ~ ~ ~° `II~~ ' ;. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Honorable M. L. Ebert, .Ir. ANSWER TO NEW MATTER '' COME NOW" the above named Plaintiffs, by and 1:hrough their undersigned attorney, and f~Or their Answer to the Defendants' New ]Matter state to the Court as follows: 1. - 14. Plaintiff incorporates paragraphs 1 through 14 of their Complaint as if fully set foi{th herein. 1. [sic] Admitted. 2. Admitted. 3. Denied. This was not a "refinance" but simply a change in terms using the same debt a~d the same lender, who were the equal members of the Trust Investment Group, LLC. ', 4. Denied. The Plaintiffs deny that there was ever any discussion or consideration for npt requiring Ms. Dana or anyone else to be guarantors of the refinanced debt. The Defendants pad down on the debt because they owed the debt. 5. Denied. This was not a new loan. 6. Admitted in part and denied in part. The Plaintiffs admit that, as part of the refinancid~g, the parties signed a new note and that Defendant Glass signed a guarantee along with that note. The Plaintiffs deny, however, any characterization that the Glass signature on the new guarantee replayed or nullified the guarantees of the other Defendants in the 2007 guarantee. 7. Admitted. By way of fur~~ther answer, based on the terms of the 2007 guarantee, ~he Plaintiffs did not need their signatures on a new guarantee. 8. Denied. The Plaintiffs deny that they ever had discussions with the Defendants about their intent concerning Ms. Dana or the other individuals referenced in the Defendants' New Matter. 9. Denied. The contents of the Plaintiffs' Complaint speak for themselves and the Plaintiffs deny any characterization of said Complaint. The Complaint is based. on the allegations contained therein. 10. Denied. The contents of the Plaintiffs' Complaint speak for themselves and the Plaintiffs deny any characterization of said Complaint. The Complaint is based. on the allegations contained therein. ANSWER TO NEW MATTER 11. The Plaintiffs incorporate paragraphs 1 through 14 of their Complaint and paragraphs 1 through 10 of the above Answer to New Matter as if fully set forth herein. 12. - 16. The allegations contained in paragraphs 12 through 16 are legal conclusions td which no answer is required. To the extent that an answer is required, the Plaintiffs deny the allegations for the reasons set forth in their Complaint. 17. Denied. For the reasons set forth in the Complaint the Plaintiffs assert that Defendant Dana is obligated to the Plaintiffs pursuant to the 2007 guarantee. 18. Denied. There is no document signed by any of the parties herein which releases Defendant Dana from her obligations as guarantor, and the Plaintiffs never agreed to any such release. 19. Denied. As set forth in the Complaint, Defendant Dana breached her obligation as guarantor under the 2007 guarantee. ', 20. The allegations contained in paragraph 20 are legal conclusions to which no answer is required. To the extent that an answer is required, the Plaintiffs aver that they did not releasel, Defendant Dana from her obligations under the 2007 guarantee. The Plaintiffs further deny that they had any obligation to obtain Defendant Dana's consent with regard to the refinance by DG~ Properties. 21. Denied. The allegations contained in paragraph 21 are legal conclusions to which n~O answer is required. To the extent that an answer is required, the allegations are denied for the reason that the 2007 guarantee does nat require Defendant Dana's consent to modify the original loan amount, and specifically obligate s her to the future indebtedness of DGK Properties. 22. Denied. 'The allegations contained in paragraph 22 are legal conclusions to which n~ answer is required. To the extent that a.n answer is required, the Plaintiffs deny the allegations fc~r the reasons set forth in their Complaint, and for the reason that there is no subrogation language~'I in any of the documents which form the basis for this case. 2?~. No answer required. WHEREFORE, the Plaintiffs respectfully request that the Court enter judgment in their favor and against the Defendants as requested in their Coanplaint. S )~rP /~l ~ --- Date: l/3 I ~ Z --`-~ - James M. Stein, Attorney for Plaintiffs Dick, Stein, Schemel, Wine & Frey, I~.LP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 1726$ (717) 762-I 160 PA Bar Ivo. 84026 VERIFICATION I verify that the statements made in the foregoing pleading aze true and correct to the best of'my knowledge and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities.. Date: Albert L. Kirkner, Plaintiff PROOF OF SERVICE t HEREBY VERIFY that 1 have served the foregoing document upon the Defendant by sending one (1) true and correct copy thereof via regulaz mail, postage pre-paid, addressed as follows: Timothy P. Palmer, Esq. Kelly M. Ariosto, Esq. One Oxford Center :301 Grant Street, 20'" Floor Pittsburgh, PA 15219 Date: 8~ 3~1 2 J~ ~i ~ James M. Stein, Attorney for Plaintiffs Dick, Stein, Schemel, Wine & Frey., LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17'68 (717) 762-1160 PA Bar No. 84026 c� IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRjkTOF a PENNSYLVANIA- CUMBERLAND COUNTY BRANCH -0:1�, ALBERT L. KIRKNER, BRIAN C. MCNEW CIVIL DIVISION cnr N o and TRUST INVESTMENT GROUP, LLC, o ° G.D.: 11-3968 vC-, Plaintiffs, c? V. MICHAEL S. GLASS, MARGERY DANA DEFENDANTS' MOTION FOR LEAVE and DGK PROPERTIES, TO AMEND NEW MATTER AND COUNTERCLAIM Defendants. Filed on behalf of Defendants, MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES Counsel of Record for this Party: Timothy P. Palmer Pa. Id. No. 86165 Kelly M. Ariosto Pa. Id. No. 306473 Buchanan Ingersoll & Rooney PC Firm I.D. #038 One Oxford Centre 20th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 562-8800 (telephone) (412) 562-1041 (fax) timothy.palmer @bipc.com IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW CIVIL DIVISION and TRUST INVESTMENT GROUP, LLC G.D.: 11-3968 Plaintiffs, V. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, Defendants. DEFENDANTS' MOTION FOR LEAVE TO AMEND NEW MATTER AND COUNTERCLAIMS Michael S. Glass ("Glass"), Margery Dana ("Dana") and DGK Properties, LP ("DGK", together with Dana and Glass, "Defendants"), by and through their undersigned counsel Buchanan Ingersoll & Rooney PC hereby file this Motion for Leave to Amend New Matter and Counterclaims (the "Motion"), and in support thereof, respectfully state as follows: INTRODUCTION 1. Defendants respectfully seek leave of this Court to amend its answer to include an amended new matter in order to assert additional defenses: (i) that the Plaintiffs (hereinafter defined) fraudulently induced Mr. Glass to execute a guaranty in connection with a refinancing of this loan, (ii) that Mr. Glass, in the execution of a guaranty, was subjected to fraud in the execution by Plaintiffs, and/or (iii) promissory estoppel based on the Plaintiffs Kirkner and McNew's breach of their agreement with Mr. Glass. Defendants further respectfully seek leave to amend its answer to include counterclaims against the Plaintiffs based on the Plaintiffs' breach of their agreement with Mr. Glass that Ms. Dana had no guaranty liability under the pertinent loan. Leave to amend is liberally granted in Pennsylvania particular where, as is the case here, the case is in the early stages of discovery and Defendants will suffer no prejudice from the amendment. 2. This case involves claims under alleged guarantees of a 2009 loan which refinanced a prior loan made by a different lender. Plaintiffs have brought claims against Mr. Glass and Ms. Dana (his wife). However, Mr. Glass executed a guaranty of the 2009 loan; Ms. Dana did not. This was not an error. At the time of the refinancing, it was agreed by all parties that Ms. Dana would not be a guarantor of the 2009 loan. Mr. Glass relied on this agreement and the representations made by the Plaintiffs that Ms. Dana would not be required to guaranty the new loan in agreeing to execute his guaranty of the 2009 loan. But for Plaintiffs' agreement not to require Ms. Dana to execute a guaranty, Mr. Glass would not have agreed to guaranty the new loan. In the Complaint, Defendants allege that notwithstanding the fact that there is no guaranty by Ms. Dana for the 2009 loan, that she was and remains a guarantor of the 2009 loan based on her prior guaranty of the entirely different 2007 loan. 3. In light of Defendants' contentions that Ms. Dana is a guarantor and Mr. Glass' assertions that he only agreed to sign the 2009 guaranty based on Plaintiffs' agreement not to require Ms. Dana to execute a guaranty, should there be a finding that Ms. Dana is in fact a guarantor of the 2009 loan, then Mr. Glass has defenses to the claims against him under his guaranty based on each, any, or all of the following: (i) fraud in the inducement of a contract, (ii) fraud in the execution of a contract, (iii) promissory estoppel. Mr. Glass also has counterclaims for breach of contract and promissory estoppel based on the agreement and actions of the parties in 2009. 4. The Motion should be granted because (1) leave to amend pleadings in Pennsylvania is to be liberally granted, (2) the facts supporting these defenses have already been 2 revealed in discovery and (3) Defendants will suffer no prejudice from amendment. The Plaintiffs are already aware of these arguments and the amendment of the new matter in this case should not be a surprise and will not prejudice the Plaintiffs in any way. PROCEDURAL BACKGROUND 5. On April 29, 2011, Albert L. Kirkner, Brian C. McNew and Trust Investment Group, LLC (collectively, the "Plaintiffs") commenced this action (the "Action") by filing a Complaint in the Court of Common Pleas of the 39th Judicial District of Pennsylvania against the Defendants. 6. The Complaint asserts, inter alia, that DGK defaulted on a loan to the Plaintiffs Kirkner and McNew, that Mr. Glass is liable on a guaranty of the loan from Kirkner and McNew to DGK, and that Ms. Dana is liable on a guaranty of a loan made by Trust Investment Group LLC to DGK. 7. On July 11, 2012 Defendants filed the Defendants' Answer to Complaint and New Matter. In their Answer, the Defendants have asserted that, inter alia, Ms. Dana was not a guarantor of the loan from Kirkner and McNew to DGK properties. 8. Since the Answer to Complaint and New Matter were filed, Plaintiffs have engaged in a single document request. No depositions have been noticed by Plaintiffs to date. In responding to discovery, Defendants have had a series of discussions with their counsel involving the facts and circumstances giving rise to this suit. These discussions reveal that additional defenses exist with Mr. Glass and Ms. Dana's guaranty liability. 9. Defendants seek leave to file an Amended New Matter and Counterclaims in order to conform the pleadings to accurately reflect Defendants' positions with respect to its defense of this Action. 3 RELIEF REQUESTED 10. Rule 1033 of the Pennsylvania Rules of Civil Procedure permits a party to amend its pleading either by filed consent of the adverse party, or by leave of court. Pa.R.C.P. 1033. 11. "Amendments are to be liberally permitted except where surprise or prejudice to the other party will result, or where the amendment is against a positive rule of law." Burger v. Borough_of Ingram, 697 A.2d 1037, 1041 (Pa. Commw. 1997). 12. In responding to discovery requests, additional facts have been adduced which may give rise to new defenses and claims in favor of the Defendants. The Defendants, by this Motion, seek an order from this Honorable Court granting Defendants leave in order to file an Amended New Matter and Counterclaims. In addition to those defenses already raised in this Action, the proposed Amended New Matter asserts defenses of each, any, or all of the following: (i) fraud in the inducement of a contract, (ii) fraud in the execution of a contract, (iii) promissory estoppel, in the event that Ms. Dana—who Defendants maintain did not guaranty the 2009 loan— is found liable as a guarantor in this Action. Further, Defendants seek leave to file Counterclaims for breach of contract and promissory estoppel based on the Plaintiffs breach of their agreements, as explained above. A true and correct copy of the proposed Amended New Matter is attached hereto as Exhibit A. 13. The Plaintiffs will not be prejudiced if the Motion is granted and Defendants are permitted to file the Amended New Matter and Counterclaim. This Action is still in the early discovery stage. No depositions have been noticed. Plaintiffs will have ample time to respond and prepare their case accordingly. What is more, Plaintiffs are already aware that these are the Defendants' legal positions. Granting the Motion is consistent with the policy of the Commonwealth in favor of liberal allowance of amended pleadings. 4 14. By electronic mail on April 19, 2013, counsel for Defendants sought the concurrence of Plaintiffs' counsel to the relief requested in the motion, to which Defendants' counsel received no response. WHEREFORE, Defendants respectfully request that this Court enter an order, substantially in the form attached granting Defendants leave of Court to file an Amended New Matter and Counterclaims,together with such other and further relief as is just and proper. Respectfully submitted, Dated: AprilZ2013 BUCHANAN INGERSOLL & ROONEY PC By: 4091 A A IL/ Thimothy P. a , Pa. Id.No 86165 Kelly M. Ari o, Pa. Id. No. 36743 One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219 (T): 412-562-8800 (F): 412-562-1041 5 IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA- CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW CIVIL DIVISION and TRUST INVESTMENT GROUP, LLC G.D.: 11-3968 Plaintiffs, V. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES Defendants. CERTIFICATE OF SERVICE I, hereby certify that on April 23, 2013, I caused a true and correct copy of the Defendants' Motion for Leave to Amend New Matter and Counterclaims to be served upon the persons listed below via U.S. Mail: James Stein Dick, Stein, Schemel, Wine& Frey LLP 119 East Baltimore Street Greencastle, Pennsylvania 17225 Exhibit A IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA- CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW CIVIL DIVISION and TRUST INVESTMENT GROUP, LLC, G.D.: 11-3968 Plaintiffs, V. MICHAEL S. GLASS, MARGERY DANA DEFENDANTS' FIRST AMENDED NEW and DGK PROPERTIES, MATTER AND COUNTERCLAIMS Defendants. Filed on behalf of Defendants, MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES Counsel of Record for this Party: Timothy P. Palmer Pa. Id. No. 86165 NOTICE TO PLEAD: You are hereby Kelly M. Ariosto notified to file a written response to the Pa. Id. No. 306473 enclosed First Amended New Matter and Counterclaims within twenty (20) days of Buchanan Ingersoll &Rooney PC the date hereof. Firm I.D. #038 One Oxford Centre 20th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 562-8800 (telephone) (412) 562-1041 (fax) timothy.palmer @bipc.com IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA- CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW CIVIL DIVISION and TRUST INVESTMENT GROUP, LLC G.D.: 11-3968 Plaintiffs, V. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, Defendants. DEFENDANT'S FIRST AMENDED NEW MATTER AND COUNTERCLAIMS Michael S. Glass ("Glass"), Margery Dana ("Dana") and DGK Properties, LP ("DGK", together with Dana and Glass, "Defendants"), by and through their undersigned counsel Buchanan Ingersoll & Rooney PC hereby files this First Amended New Matter and Counterclaims, and in support thereof, respectfully state as follows: FACTS COMMON TO NEW MATTER AND COUNTERCLAIMS 1. On or about October 12, 2007, Trust Investment Group made a loan (the "2007 Loan") to DGK. The 2007 Loan was evidenced by a Mortgage Note dated October 12, 2007 executed by DGK in favor of Trust Investment Group in the amount of$3,200,000.00 (the "2007 Note"). A true and correct copy of the 2007 Note, which was referenced by the Plaintiffs in Paragraph 13 of the Complaint, is attached hereto as Exhibit 1. 2. The 2007 Loan was secured by a Mortgage executed by DGK in favor of Trust Investment Group (the "2007 Mortgage") and a guaranty executed by Ms. Dana, Ms. Glass and two others (the "Dana Guaranty"). A true and correct copy of the 2007 Mortgage, which was referenced by the Plaintiffs in Paragraph 13 of the Complaint, is attached hereto as Exhibit 2. A true and correct copy of the Dana Guaranty is attached to the Complaint as Exhibit"C." 3. At no time was Ms. Dana a partner of DGK. 4. In 2009, the 2007 Loan was refinanced. Plaintiffs Kirkner and McNew were the refinancing lenders. 5. To evidence the new loan, DGK executed and delivered a brand new Mortgage Note dated November 3, 2009 in the original principal amount of $2,200,000 to Plaintiffs Kirkner and McNew. A true and correct copy of the Mortgage Note is attached to the Plaintiffs' Complaint as Exhibit A. 6. In connection with the refinancing, Kirkner and McNew required the execution of a brand new mortgage (the "2009 Mortgage") and a brand new guaranty of Defendant Glass (the "2009 Glass Guaranty"). A copy of the 2009 Mortgage is attached to the Plaintiffs' Complaint as Exhibit A. A true and correct copy of the 2009 Glass Guaranty is attached to the Plaintiffs' Complaint as Exhibit B. 7. As part of the refinancing, and as consideration for not requiring Ms. Dana and the two other individuals to be guarantors of the refinanced debt, a considerable pay down was made. The 2009 loan(the "2009 Loan") was for$2,200,000. 8. Neither Ms. Dana nor the three other individuals who guaranteed the 2007 guaranteed the 2009 Loan nor was their consent to the 2009 Loan — and the new loan terms — ever obtained. 9. Specifically, prior to execution of the 2009 Note, it was agreed that that Victor Kicera and Denise Kicera would not be guarantors of the 2009 Loan. Upon learning this, Mr. Glass refused to guaranty the new loan with his wife, Ms. Dana. To the extent that the parties 2 ever intended Ms. Dana to guaranty the new loan prior that point, it was agreed that Ms. Dana would not guaranty the 2009 Loan at or around the time of the closing and the only guaranty executed at the closing of the 2009 Loan was by Mr. Glass only. At all times from that point and after, as agreed by all of the parties at or around the closing on the new loan, Mr. Glass was intended to be the only guarantor of the loan. 10. In April of 2011, Plaintiffs filed the Complaint asserting breach of guaranty claims against Defendants. Plaintiffs' breach of contract claim against DGK is based on its alleged failure to make payments due under the 2009 Note. 11. The breach of contract claim against Mr. Glass is based on its alleged failure to make payments due under the 2009 Glass Guaranty. However, Plaintiffs' breach of contract claim against Ms. Dana is based on the 2007 Dana Guaranty which guarantees the 2007 Loan only. 12. As set forth above, at the time of the refinancing in 2009, it was expressly agreed by all parties that Ms. Dana would not be a guarantor of the 2009 loan. Mr. Glass would not have agreed to execute his guaranty of the 2009 loan but for this agreement. Mr. Glass relied on Plaintiffs assurances in executing the guaranty of the 2009 loan. As a result of Plaintiffs' conduct,Mr. Glass has suffered damages in an amount to be determined at trial. NEW MATTER 13. Defendants incorporate all prior responses and allegations herein by reference. 14. Plaintiffs' Complaint is barred, in whole or in part, because it fails to state a claim upon which relief can be granted. 15. Plaintiffs' Complaint is barred, in whole or in part, to the extent that any claim is not ripe for adjudication. 3 16. Plaintiffs' Complaint is barred, in whole or in part, because Plaintiffs lack standing with respect to its claims against Defendant Dana. 17. Plaintiffs' Complaint is barred, in whole or in part, by the equitable principles of estoppel, unclean hands, and waiver. 18. Plaintiff Complaint is barred, in whole or in part, under the doctrines of novation and accord and satisfaction. 19. Plaintiffs' allegations against Defendant Dana fail to state a claim because Defendant Dana has no obligations to Plaintiffs under any of the instruments attached to the Complaint. 20. Plaintiffs' allegations against Defendant Dana fail because Defendant Dana was released as guarantor from the underlying loan obligations. 21. Plaintiffs' allegations against Defendant Dana fail to state a claim because Dana did not breach any obligation to Plaintiffs under any of the instruments attached to the Complaint. 22. Defendant Dana has no obligations to the Plaintiffs because, to the extent Dana has any existing obligations under the Dana Guaranty attached to the Complaint as Exhibit "C," the Plaintiffs materially modified the underlying loan without Defendant Dana's consent, which modification caused Defendant Dana's obligations under the Dana Guaranty to be discharged. 23. Defendant Dana has no obligations to the Plaintiffs because, to the extent that Dana has any existing obligations under the Dana Guaranty attached to the Complaint as Exhibit "C", the material modifications to the underlying loan substantially increased the risks unto Defendant Dana without Defendant Dana's consent, which caused Defendant Dana's obligations under the Dana Guaranty to be discharged. 4 24. Defendant Dana has no obligations to the Plaintiffs because, to the extent Dana has any existing obligations under the Dana Guaranty attached to the Complaint as Exhibit "C," Plaintiffs have impaired Defendant Dana's subrogation rights, which caused Defendant Dana's obligations under the Dana Guaranty to be discharged. 25. Plaintiffs complaint is barred, in whole or in part, by the doctrine of fraudulent inducement. 26. Plaintiffs complaint is barred, in whole or in part, by the doctrine of fraud in the execution. 27. Plaintiffs complaint is barred, in whole or in part, by the doctrine of promissory estoppel. 28. Defendants hereby give notice that they intend to rely upon such other and further defenses as may become available or apparent during discovery in this case, and hereby reserves the right to amend this Answer and New Matter to Plaintiffs Complaint to assert any such defense. WHEREFORE, Defendants respectfully request that the Complaint is dismissed in its entirety, together with such other and further relief as is just and proper. COUNTERCLAIMS COUNT Mr. Glass v. Plaintiffs Breach of Contract 29. Defendants incorporate all prior responses and allegations herein by reference. 30. At the time of the refinancing, Plaintiffs and Mr. Glass agreed that Ms. Dana would not be a guarantor of the 2009 Loan. 5 31. In filing the Complaint, Plaintiffs have sought to hold Ms. Dana liable as a Guarantor of the 2009 Loan. Plaintiffs' conduct constitutes a breach of their contract with Mr. Glass. 32. Mr. Glass has suffered damages as a result of Plaintiffs' breach of contract and will suffer damages in the event that Ms. Dana is found to be liable as a guarantor of the 2009 Loan. Specifically, Mr. Glass has incurred attorneys' fees in defending this suit. Moreover, if Ms. Dana is found liable as a guarantor, Mr. Glass will suffer substantial damages insofar as his interests in marital assets — which otherwise would be exempt from execution in the event a judgment is entered against him under the 2009 Guaranty — will be subject to execution by Plaintiffs. Such damages exceed $25,000. WHEREFORE Defendant/Counterclaim-Planitiff Michael Glass requests that judgment be entered against Plaintiffs/Counterclaim-Defendants for breach of contract in an amount to be determined at trial together with attorneys' fees and costs of suit. COUNT II Mr. Glass v. Plaintiffs Promissory Estoppel 33. Defendants incorporate all prior responses and allegations herein by reference. 34. In agreeing to guaranty the 2009 loan, Mr. Glass relied on Plaintiffs' representations that Ms. Dana would not be a guarantor of the loan. But for Plaintiffs' representations, Mr. Glass would not have agreed to guaranty the 2009 loan. 35. Mr. Glass has suffered damages as a result of Plaintiffs' conduct and will suffer damages in the event that Ms. Dana is found to be liable as a guarantor of the 2009 Loan. Specifically, Mr. Glass has incurred attorneys' fees in defending this suit. Moreover, if Ms. 6 Dana is found liable as a guarantor, Mr. Glass will suffer substantial damages insofar as his interests in marital assets — which otherwise would be exempt from execution in the event a judgment is entered against him under the 2009 Guaranty — will be subject to execution by Plaintiffs. Such damages exceed $25,000. WHEREFORE Defendant/Counterclaim-Plaintiff Michael Glass requests that judgment be entered against Plaintiffs/Counterclaim-Defendants for promissory estoppel in an amount to be determined at trial together with attorneys' fees and costs of suit. Respectfully submitted, Dated: April 2013 BUCHANAN INGERSOLL & ROONEY PC By: Timothy P. Palmer, Pa. Id. No. 86165 Kelly M. Ariosto, Pa. Id. No. 36743 One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219 (T): 412-562-8800 (F): 412-562-1041 7 UNSWORN VERIFICATION I, Michael Glass verify that I have read the foregoing Defendants' First Amended New Matter and Counterclaims, that I am authorized to make this Verification on Defendants' behalf and that the statements of fact therein 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 § 4904 relating to unsworn falsifications to authorities. Dated: Michael Glass ALBERT L. KIRKNER, IN THE COURT OF COMMON PLEAS OF BRIAN C. MCNEW and CUMBERLAND COUNTY, PENNSYLVANIA TRUST INVESTMENT GROUP, LLC, PLAINTIFFS V. MICHAEL S. GLASS, MARGERY DANA AND DGK PROPERTIES, DEFENDANTS 11-3968 CIVIL TERM ORDER OF COURT AND NOW, this day of April, 2013, upon consideration of Defendants' Motion for Leave to Amend New Matter and Counterclaims, a Rule is issued on Plaintiffs to show cause why the relief requested should not be granted. Rule returnable twenty (20) days from the date of this order. By the Court, Albert H. Masland, J. ' ✓James Stein, Esquire For Plaintiffs -'- Timothy P. Palmer, Esquire Kelly M. Ariosto, Esquire For Defendants :sal moo C5 :- IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER,BRIAN C. MCNEW Civil Action - Law and TRUST INVESTMENT GROUP, LLC, Plaintiffs :3:-n V. No. 11-3968 Civil vnj;� "o C:3 MICHAEL S. GLASS, MARGERY DANA en-n and DG-K PROPERTIES, LP, �zz; P.C-> Defendants Honorable M. L. Ebert, Jr.ZO 6> ANSWER TO DEFENDANTS' MOTION FOR LEAVE .4 TO AMEND NEW MATTER AND COUNTERCLAIMS COME NOW the above named Plaintiffs,by and through their undersigned attorney,and for their Answer to the Defendants Motion for Leave to Amend New Matter and Counterclaims state to the Court as follows: 1. Now that Plaintiffs' counsel has reviewed the proposed amendments, they have no objection to the Defendants' filing the Amended New Matter and Counterclaims, as proposed. 2. With.regard to the Defendants' allegations regarding discovery, the Plaintiffs' deny the allegation that they have not noticed any depositions. To the contrary, the Plaintiffs have made numerous attempts to set dates for depositions of the Defendants,but have received no response on dates which will suit the Defendants. Consequently, the Plaintiffs' have had to select dates themselves and issue Notices ofDeposition,as well as subpoenas to other witnesses. It is anticipated that these depositions will occur within the next two months. J WHEREFORE, the Plaintiffs' have no objection to the filing of an Amended New Matter and Counterclaims as proposed by the Defendants. Respectfully Submitted, Date: James M. Stein, Attorney for Plaintiffs Dick, Stein, Scheme], Wine&Frey, LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 PA Bar No. 84026 VERIFICATION I verify that the statements made in the foregoing pleading are true and correct to the best of my knowledge and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: V2 S 1/3 -)C, A. James M. Stein, Attorney for Plaintiffs PROOF OF SERVICE I HEREBY VERIFY that I have served the foregoing document upon the Defendant by sending one (1)true and correct copy thereof via regular mail follows: ,postage pre-paid, addressed as Kelly M. Ariosto, Esq. One Oxford Center 301 Grant Street, 20'Floor Pittsburgh, PA 15219 Date: James M. Stein, Attorney for Plaintiffs Dick, Stein, Scheme], Wine &Frey, LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-11.60 PA Bar No. 84026 9TH IN THE COURT OF COMMON PLEAS OF THE 3JUDICIAL DISTRICT Q PENNSYLVANIA-CUMBERLAND COUNTY . ALBERT L. KIRKNER, BRIAN C. MCNEW Civil Action-Law "' and TRUST INVESTMENT GROUP,LLC, Plaintiffs y_ V. No. 11-3968 Civil 5_1 { o MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Honorable M.L. Ebert, Jr. MOTION TO COMPEL DEFENDANTS' APPEARANCE FOR DEPOSITION COME NOW the above named Plaintiffs,by and through their undersigned attorney,and for their Motion to Compel Defendants' Appearance for Deposition state to the Court as follows: 1. On April 5,2013,the office of undersigned counsel contacted counsel for the Defendants proposing several dates in April and May, 2013 upon which to schedule depositions in the above captioned matter. 2. After failing to receive a response to the proposed dates, the office of the undersigned counsel again contacted counsel for the Defendants on April 17, 2013 and April 23, 2013. 3. On April 26,2013 when the depositions had still not been scheduled,undersigned counsel scheduled the depositions to take place on June 7,2013. Notice was given by way of letter,dated April 26,2013, attached hereto and by this reference made a part hereof as Exhibit A. 4. On May 9, 2013, by way of e-mail correspondence, Attorney Kelly M. (Ariosto)Neal requested the depositions be continued due to her need to prepare for a trial scheduled for the week following June 7, 2013. 5. On May 24, 2013, office of the undersigned counsel provided the following proposed dates for deposition: June 24, June 26 and July 3, 2013. 6. On June 5, 2013 Attorney (Ariosto) Neal contacted undersigned counsel under the erroneous impression that the Plaintiffs and Defendants had agreed to continue the depositions. 7. On June 10, 2013, undersigned counsel mailed correspondence, Notices for the depositions to take place on June 24, 2013, and, based on the misunderstanding described in paragraph 6 above,proposing several dates in July 2013 upon which to hold the depositions. Said correspondence is attached hereto and by this reference made a part hereof as Exhibit B 8. After receiving noncommital responses, office of the undersigned counsel contacted Attorney (Ariosto) Neal on June 20, 2013 and again on July 3, 2013 in attempts to schedule the depositions. 7. On October 16,2013,when the depositions had still not taken place,undersigned counsel proposed yet another set of dates in November and December of 2013 upon which to hold depositions and requesting confirmation of Defendants' availability. See letter dated October 16, 2013, attached hereto and by this reference made a part hereof as Exhibit C. 8.Having failed to receive a response to the letter attached as Exhibit C,on October 24,2013 undersigned counsel sent Notices of Deposition to take place on December 2, 2013. Said letter is attached hereto and by this reference made a part hereof as Exhibit D. 9. On November 20,2013, Defendants' counsel once again requested a continuance of the scheduled depositions. -2- 10. Counsel for the Defendants assured undersigned counsel that both she and her clients would be available for depositions on several dates, including the date of January 22, 2014. 11. Undersigned counsel agreed to one final continuance and sent Notices of Deposition to take place January 22, 2014 with a letter dated November 27, 2013,which letter is attached hereto and by this reference made a part hereof as Exhibit E. WHEREFORE,due to the numerous scheduling changes and continuance requests described above,Plaintiffs request this Honorable Court issue an order to compel Defendants and their counsel to appear at the Depositions scheduled to take place on January 22,2014,along with such other relief as the Court deems just and equitable in the premises. Respectfully submitted, Date: � Z / 03 James M. Stein, Attorney for Plaintiffs Dick, Stein, Schemel, Wine &Frey LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 Pa. Bar No. 84026 VERIFICATION I verify that the statements made in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S., Section 4904, relating to unsworn falsification to authorities. Date: `A(l James M. Stein, Attorney for Plaintiffs -3- PROOF OF SERVICE I HEREBY VERIFY that I have served the foregoing document upon counsel of record by depositing one (1)true and correct copy thereof in the United States Mail, postage prepaid, addressed as follows: Kelly M. (Ariosto)Neal, Esquire Timothy P. Palmer, Esquire Buchanan, Ingersoll & Rooney, PC One Oxford Centre 301 Grant Street, 20`h Floor Pittsburgh, PA 15219-1410 Date: 12 3 �--)G-,yuv A James M. Stein, Attorney for Plaintiffs -4- DICK, STEIN, SCHEMEL, WINE & FREY, LLP � ATTORNEYS AT LAW WILLIAM S.DICK JOHN W.FREY 13 W.MAIN STREET,SUITE 210 119 E.BALTIMORE STREET JAMES M. STEIN(Ab-dinilted in in) JOSEPH L.DOYLE WAYNESBORO,PA 17268 GREENCASTLE,PA 17225 PAUL T. SCHEMEL(wsoadminedin MD&wv) ELIZABETH A.CLARK(Aso admitted in AL,MD&NJ) (717)762-1160 (717)597-0200 J.EDGAR WINE FAx(717)762-6040 FAx(717)597-2542 April 26, 2013 . Kelly M. Ariosto, Esquire Buchanan, Ingersoll &Rooney, PC One Oxford Centre 301 Grant Street,20th Floor Pittsburgh, PA 15219-1410 RE: Kirkner, et al. v. Glass, et al. Cumberland County Case No. 11-3 968 Civil Dear Ms. Ariosto: Enclosed please find our response to your Motion to Amend New Matter and Counterclaim, in which we voiced no objection to your amendment. We have also enclosed Notices of Deposition for your clients, as well as copies of the Subpoena to Attend and Testify that we will be serving upon the Kiceras as soon as we receive the Subpoenas back from the Court. As you can see,we have set all deposition dates for June 7,2013. Please contact me with any questions or concerns this may cause. Otherwise, we look forward to seeing you and your clients on June 7. Sincerely, James M. Stein JMS/mcb Enclosures cc: Mr. Albert L. Kirkner IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA—CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW Civil Action- Law and TRUST INVESTMENT GROUP, LLC, Plaintiffs V. No. 11-3968 Civil MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Honorable M.L. Ebert, Jr. PRAECIPE To the Prothonotary: Please file the enclosed Plaintiffs' Answer to Defendants' Motion for Leave to Amend New Matter and Counterclaims and present it to Judge M.L.Ebert. Please return one(1)true and attested, file-stamped copy to me in the enclosed, self-addressed envelope. Thank you for your assistance with this matter, and please do not hesitate to contact me with any questions or concerns this may cause. Respectfully submitted, Date: 7/26/13 '/I James M. Stein, Attorney for Plaintiffs Dick, Stein, Schemel, Wine &Frey, LLP 13 W. Main Street Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1.160 PA Bar No. 84026 r IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA- CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW Civil Action-Law and TRUST INVESTMENT GROUP,LLC, Plaintiffs : V. No. 1.1-396$ Civil MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Honorable M. L. Ebert, Jr. ANSWER TO DEFENDANTS' MOTION FOR LEAVE TO AMEND NEW MATTER AND COUNTERCLAIMS COME NOW the above named Plaintiffs,by and through their undersigned attorney,and for their Answer to the Defendants Motion for Leave to Amend New Matter and Counterclaims state to the Court as follows: 1. Now that Plaintiffs' counsel has reviewed the proposed amendments, they have no objection to the Defendants' filing the Amended New Matter and Counterclaims, as proposed. 2. With regard to the Defendants' allegations regarding discovery,the Plaintiffs' deny the allegation that they have not noticed any depositions. To the contrary, the Plaintiffs have made numerous attempts to set dates for depositions of the Defendants,but have received no response on dates which will suit the Defendants. Consequently, the Plaintiffs' have had to select dates themselves and issue Notices of Deposition,as well as subpoenas to other witnesses. It is anticipated that these depositions will occur within the next two months. WHEREFORE,the Plaintiffs' have no objection to the filing of an Amended New Matter and Counterclaims as proposed by the Defendants. Respectfully Submitted, Dater S j i 3 Ctrr f j 1 C James M_Stein,Attorney for Plaintiffs Dick, Stein, Schemel, Wine&Frey, LLP 13 West Main Street, Suite 210 Waynesboro,Peni sylvania 17268 (717) 762-1160 PA Bar No. 84026 VERIFICATION I verify that the statements made in the foregoing pleading are true and correct to the best of my knowledge and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: //, CA4_Ak9 • t2� �13 James M. Stein, Attorney for Plaintiffs PROOF OF SERVICE I HEREBY VERIFY that I have served the foregoing document upon the Defendant by sending one (1) true and correct copy thereof via regular mail, postage pre-paid, addressed as follows: Kelly M. Ariosto, Esq. One Oxford Center 301 Grant Street, 20th Floor Pittsburgh,PA 15219 Date: `J/2 �� James M. Stem,Attorney for Plaintiffs Dick, Stein, Schemel, Wine &Frey, LLP 13 West Main Street, Suite 210 Waynesboro, Peiuzsylvania 17268 (717) 762-1160 PA Bar No. 84026 IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA—CUMBERLAND COUNTY BRANCH ALBERT L. KTRKNER,BRIAN C. MCNEW Civil Action-Law and TRUST INVESTMENT GROUP, LLC, Plaintiffs : V. No. 11-3968 Civil MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, : Defendants : Honorable M.L. Ebert, Jr. NOTICE OF DEPOSITION To: Margery Dana c/o Timothy P. Palmer, Esquire Kelly M. Ariosto, Esquire One Oxford Center 301 Grant Street,20t'Floor Pittsburgh, PA 15219-1410 You are hereby notified that your deposition by oral examination will be taken at the Law Offices of Dick,Stein,Schemel,Wine&Frey,LLP, 113 East Baltimore Street,Greencastle,PA 17225, on Friday,June 7,2013 at 9:00 AM. In addition,pursuant to Pa.R.C.P.4007.1(d)(1)and 4009.1 et sec, you are required to bring the following documents and things to said deposition: 1. Any notes or other documents which pertain in any way to the subject matter of this litigation. Respectfully Submitted, ames M. illCln, It fGr P aintiff Dick, Stein, Scheme], Wine& Frey, LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 PA Bar No. 84026 IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA—CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER,BRIAN C. MCNEW Civil Action- Law and TRUST INVESTMENT GROUP, LLC, Plaintiffs V. No. 11-3968 Civil MICHAEL S. GLASS,MARGERY DANA and DGK PROPERTIES,LP, Defendants Honorable M.L. Ebert, Jr. NOTICE OF DEPOSITION To: Michael S. Glass c/o Timothy P. Palmer, Esquire Kelly M. Ariosto,Esquire One Oxford Center 301 Grant Street,20"Floor Pittsburgh, PA 15219-1410 You are hereby notified that your deposition by oral examination will be taken at the Law Offices of Dick,Stein,Schemel,Wine&Frey,LLP, 113 East Baltimore Street,Greencastle,PA 17225, on Friday,June 7,2013 at 9:00 AM. In addition,pursuant to Pa.R.C.P.4007.1(d)(1)and 4009.1 et sec, you are required to bring the following documents and things to said deposition: 1. Any notes or other documents which pertain in any way to the subject matter of this litigation. Respectfully Submitted, James M. Stein,Attorney for Plaintiff Dick, Stein, Schemel, Wine &Frey, LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 PA Bar No. 84026 IN THE COURT OF COMMON PLEAS OF THE 39TIl JUDICIAL DISTRICT OF PENNSYLVANIA—CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW Civil Action- Law and TRUST INVESTMENT GROUP, LLC, Plaintiffs V. No. I1-3968 Civil MICHAEL S. GLASS,MARGERY DANA and DGK PROPERTIES, LP, Defendants : Honorable M.L. Ebert,Jr. PRAECIPE To the Prothonotary: Please issue the enclosed Subpoenas to Attend and Testify with regard to the above captioned matter. Also enclosed is a check to cover your fees with regard to the subpoenas. Please return the issued subpoenas to me in the enclosed,self-addressed envelope. Thank you for your assistance with this matter,and please do not hesitate to contact me with any questions or concerns this may cause. Respectfully submitted, Date: 11 6 jal" /// " L James M. Stein, Attorney for Plaintiffs Dick, Stein, Schemel, Wine & Frey, LLP 13 W. Main Street Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 PA Bar No. 84026 IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA—CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER,BRIAN C. MCNEW : Civil Action- Law and TRUST INVESTMENT GROUP, LLC, Plaintiffs V. No. 11-3968 Civil MICHAEL S. GLASS,MARGERY DANA and DGK PROPERTIES, LP, Defendants Honorable M.L. Ebert, Jr. SUBPOENA TO ATTEND AND TESTIFY To: Mr. Victor Kicera 2834 Kissel Hill Road Lititz, PA 17543 You are ordered by the Court to come to the Law Offices of Dick.,Stein,Schemes,Wine&Frey, LLP, 113 East Baltimore Street,Greencastle,PA 17225,on Friday,June 7,2013 at 1:00 PM to provide deposition testimony in the above case, and to remain until excused. If you fail to attend you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. Requested By: James M. Stein, Attorney for Plaintiff Dick, Stein, Schemes, Wine&Frey, LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 PA Bar No. 84026 Date: BY THE COURT: By Seal of the Court Prothonotary IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA—CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER,BRIAN C. MC:NEW Civil Action- Law and TRUST INVESTMENT GROUP, LLC, Plaintiffs V. : No. 11-3968 Civil MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Honorable M.L. Ebert,Jr. SUBPOENA TO ATTEND AND TESTIFY To: Ms. Denise Kicera 2834 Kissel Hill Road Lititz, PA 17543 You are ordered by the Court to come to the Law Offices of Dick,Stein,Scheme],Wine&Frey, LLP, 113 East Baltimore Street,Greencastle,PA 17225,on Friday,June 7,2013 at 1:00 PM to provide deposition testimony in the above case,and to remain until excused. If you fail to attend you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. Requested By: James M. Stein, Attorney for Plaintiff Dick, Stein, Schemel, Wine&Frey, LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717)762-1160 PA Bar No. 84026 Date: BY THE COURT: By Seal of the Court Prothonotary DICK, STEIN, SCHEMEL, WINE & FREY, LLP ATToRNEYS AT LAW WILLIAM S.DICK JOHN W.FREY 13 W.MAIN STREET,SUITE 210 119 E.BALTIMORE STREET JAMES M.STEIN(Also admitted in1A) JOSEPH L.DOYLE WAYNESBORO,PA 1726$ GREENCASTLE,PA 17225 PAUL T. SCHEMEL(Abo admitted h MD c vm ELIZABETH A.CLARK lAlso admitted In w.,Mo&w) (717)762-1160 (717)597-0200 J.EDGAR WINE FAX(717)762-6040 FAX(717)597-2542 June 10, 2013 Kelly M. Ariosto,Esquire Buchanan, Ingersoll&Rooney, PC One Oxford Centre 301 Grant Street, 20"Floor Pittsburgh, PA 15219-1410 RE: Kirkner, et al. v. Glass, et al. Cumberland County Case No. 11-3968 Civil Dear Ms. Ariosto: As you are aware, we have noticed depositions for Monday, June 24, 2013 in the above referenced matter. Based on your recent e-mails stating that you are not available on June 24, we contacted Mr. Kicera to determine his availability for the month of July, 2013. Mr. Kicera is available on the following dates: Wednesday, July 10; Thursday, July 11 and Tuesday, July 23. Please check your clients' availability on those three dates. We are not willing to move the depositions from June 24 unless and until you notify our office that you and your clients are available on one of the three dates listed above. If none of the three dates listed above are acceptable,we are prepared to hold depositions,as noticed,on June 24,2013,which was a date you originally indicated was acceptable. Please contact me with any questions or concerns this may cause. Otherwise, we look forward to receiving a final deposition date from you at your earliest convenience. Sincerely,' �� James M. Stein JMS/mcb cc: Mr. Albert L. Kirkner R Mary Brown From: Mary Brown {marydsslaw @pa.net> Sent: Monday,June 10, 2013 1:45 PM To: 'Ariosto, Kelly M.' Subject: RE: Kirkner, et. al.v.Glass, et.al. Attachments: Ariosto,Kelly,Esq.6.10.13.pdf Attorney Ariosto— Please see the attached letter from Attorney Stein regarding the depositions in the above referenced matter. Mary C. Brown Paralegal, Notary Public Dick,Stein,Schemel,Wine& Frey, LLP 13 West Main Street,Suite 210 Waynesboro, PA 17268 marydsslaw @pa.net (P) 717-762-1160 (F)717-762-6040 The information transmitted by this email is considered attorney privileged and confidential and is intended for the use of the individual or entity named. if the reader of this message is not the intended recipient or the employee or agent responsible to deliver it to the intended recipient,you should be aware that any dissemination,distribution or copying of this communication is strictly prohibited. If you have received this communication in error,please immediately notify us by telephone and return the original message to us at the above address via the United States Postal Service. Thank you! From: Ariosto, Kelly M. [mailto:kelly.ariosto @bipc.com) Sent: Wednesday, .June 05, 2013 3:20 PM To: Mary Brown Subject: RE: Kirkner, et. al. v. Glass, et. al. Mary, Our client just informed us that they have agreed with both of your clients to postpone the depositions. Please confirm with your client and let us know. Thanks, Kelly Kelly M. Ariosto Buchanan Ingersoll& Rooney PC One Oxford Centre, 20th Floor 301 Grant Street Pittsburgh, PA 15219 Phone: 412 562 8338 Fax: 412 562 1041 kelly.ariosto @bir)c.com DICK, STEIN, SCHEMEL, WIDE +& FREY, LLP ATTORNEYS AT LAW WILLIAM S.DICK JOHN W.FREY 13 W.MAIN STREET,SUITE 210 119 E.BALTIMORE STREET JAMES M. STEIN(Moadmidedin[A) JOSEPH L.DOYLE WAYNESBORO,PA 17268 GREENCASTLE,PA 17225 PAUL T. SCHEMEL(.vsoadminedwMnawv) ELIZABETH A.CLARK(wsoadmidedin AL,MD&NJ) (717)762-1160 (717)597-0200 J.EDGAR WINE FAx(717)762-6040 FAx(717)597-2542 October 16, 2013 Kelly M. Ariosto,Esquire Buchanan, Ingersoll &Rooney, PC One Oxford Centre 301 Grant Street, 20'Floor Pittsburgh,PA 15219-1410 RE: Kirkner, et al. v. Glass, et al. Cumberland County Case No. 11-3968 Civil Dear Ms. Ariosto: As you are aware, we have made numerous attempts to schedule depositions in the above referenced matter. We have confirmed that Victor Kicera is available for deposition on November 7, 2013,November 20, 2013 and December 2, 2013. We also plan to schedule the depositions Of Mr. Glass and Ms. Dana on one of those dates. Please confirm that you and your clients are available on one or more of the listed dates. If none of those dates work for you and your clients,please contact me by phone by 4:30 on Monday,October 21,2013,with at least three dates that you and your clients are available for such depositions. Because of the length of time this matter has dragged on,if we do not have all three depositions scheduled to take place in the near future we will file a Motion to Compel with the Court on October 31, 2013. Sincerely, James M. Stein JMS/mcb cc: Mr. Albert L. Kirkner DICK, STEIN, SCHEMEL, WINE & FREY, LLP � ATTORNEYS.AT LAW WILLIAM S.DICK JOHN W.FREY 13 W.MAIN STREET,SUITE 210 119 E.BALTIMORE STREET JAMES M. STEIN(moadmiudinlA) JOSEPH L.DOYLE WAYNESBORO,PA 17268 GREENCASTLE,PA 17225 PAUL T.SCHEMEL(abo�mid h MD s wv) ELIZABETH A.CLARK(Abo ned in At MD a wy (717)762-1160 (717)597-0200 J.EDGAR WINE FAx(717)762-6040 FAx(717)597-2542 October 24, 2013 Kelly M. Ariosto,Esquire Buchanan,Ingersoll &Rooney, PC One Oxford Centre 301 Grant Street, 20'Floor Pittsburgh,PA 15219-1410 RE: Kirkner, et al. v. Glass, et al. Cumberland County Case No. 11-3968 Civil Dear Ms. Ariosto: As you are aware,in our letter of October 16,2013 we proposed several dates on which to hold the depositions in the above referenced matter. We requested that you contact us via telephone if you and your clients were unavailable for any of the proposed dates. To date, you have not informed us that you and your clients have any conflict with the dates proposed in our letter. Therefore we have scheduled all three depositions to take place on Monday, December 2,2013. Enclosed please find Notices of Deposition for your clients, as well as a copy of the Subpoena to Attend and Testify that we will be serving upon Mr.Victor Kicera as soon as we receive the issued Subpoena back from the Court. Please contact the undersigned with any questions or concerns. Otherwise,we look forward to seeing you at the depositions on December 2, 2013. Sincerely, James M. Stein JMS/mcb Enclosures cc: Mr. Albert L. Kirkner IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA—CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW Civil Action- Law and TRUST INVESTMENT GROUP, LLC, Plaintiffs V. No. 11-3968 Civil MICHAEL S. GLASS,MARGERY DANA and DGK PROPERTIES,LP, Defendants Honorable M.L. Ebert, Jr. NOTICE OF DEPOSITION To: Margery Dana c/o Timothy P.Palmer,Esquire Kelly M.Ariosto,Esquire One Oxford Center 341 Grant Street, 20'Floor Pittsburgh,PA 15219-1414 You are hereby notified that your deposition by oral examination will be taken at the Law Offices of Dick,Stein,Schemel,Wine&Frey,LLP, 119 East Baltimore Street,Greencastle,PA 17225, on Monday,December 2,2413 at 1:44 PM. In addition,pursuant to Pa.R.C.P.4447.1(d)(1)and 4449.1 et sec,you are required to bring the following documents and things to said deposition: 1. Any notes or other documents which pertain in any way to the subject matter of this litigation. Respectfully Submitted, cv'A-Q�o -4 Val— 343 ran'ies M. Stein,A'ttoiiley iur Plaintiff Dick, Stein, Schemel,Wine&Frey,LLP 13 West Main Street, Suite 214 Waynesboro, Pennsylvania 17268 (717) 762-1164 PA Bar No. 84026 t ' IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA—CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW Civil Action- Law and TRUST INVESTMENT GROUP, LLC, Plaintiffs V. No. 11-3968 Civil MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Honorable M.L. Ebert, Jr. NOTICE OF DEPOSITION To: Michael S. Glass c/o Timothy P. Palmer, Esquire Kelly M. Ariosto, Esquire One Oxford Center 301 Grant Street, 20'Floor Pittsburgh, PA 15219-1410 You are hereby notified that your deposition by oral examination will be taken at the Law Offices of Dick,Stein,Schemel,Wine&Frey,LLP, 119 East Baltimore Street,Greencastle,PA 17225, on Monday,December 2,2013 at 3:00 PM. In addition,pursuant to Pa.R.C.P.4007.1(d)(1)and 4009.1 et sec,you are required to bring the following documents and things to said deposition: 1. Any notes or other documents which pertain in any way to the subject matter of this litigation. Respectfully Submitted, I 1nl1.7 ivl James M. Stein,Attorney for Plaintiff �- Dick, Stein, Schemel, Wine&Frey,LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 PA Bar No. 84026 IN THE COURT OF COMMON PLEAS OF THE 39"JUDICIAL DISTRICT OF PENNSYLVANIA—CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER,BRIAN C. MCNEW Civil Action-Law and TRUST INVESTMENT GROUP,LLC, Plaintiffs V. No. 11-3968 Civil MICHAEL S. GLASS,MARGERY DANA and DGK PROPERTIES,LP, Defendants Honorable M.L. Ebert, Jr. SUBPOENA TO ATTEND AND TESTIFY To: Mr. Victor Kicera 2834 Kissel Hill Road Lititz,PA 17543 You are ordered by the Court to come to the Law Offices of Dick,Stein,Schemel,Wine&Frey, LLP, 119 East Baltimore Street,Greencastle,PA 17225,on Monday,December 2,2013 at 10:00 AM to provide deposition testimony in the above case, and to remain until excused. If you fail to attend you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. Requested By: 1h F ata--- James M. Stein, Attorney for Plaintiff Dick, Stein, Schemel, Wine&Frey, LLP 13 West Main Street, Suite 210 Waynesboro,Pennsylvania 17268 (717) 762-1160 PA Bar No. 84026 Date: BY THE COURT: By Seal of the Court Prothonotary 1 DICK, STEIN, SCHEMEL, WINE & FREY, LLP ■ATTORNEYS AT LAW WILLIAM S.DICK JOHN W.FREY 13 W.MAIN STREET,SUITE 210 119 E.BALTIMORE STREET JAMES M. STEIN(AW.d.dadmiA) JOSEPH L.DOYLE WAYNESBORO,PA 17268 GREENCASTLE,PA 17225 PAUL T.SCHEMEL(Aisoa&vdwin mD&WV) ELIZABETH A.CLARK Ckfso a*rmetin AL,Moaw) (717)762-1160 (717)597-0200 J.EDGAR WINE FAX(717)762-6040 FAx(717)597-2542 November 27, 2013 Timothy P. Palmer, Esquire Kelly M. Ariosto,Esquire Buchanan, Ingersoll&Rooney, PC One Oxford Centre 301 Grant Street, 20'h Floor Pittsburgh,PA 15219-1410 RE: Kirkner,et al. v. Glass, et al. Cumberland County Case No. 11-3968 Civil Dear Attorneys Palmer and Ariosto: Pursuant to your recent e-mail correspondence,we have agreed to one final continuance of the depositions in the above referenced matter. Relying upon your assurances that both you and your clients are available on January 22, 2014, we have enclosed Notices of Deposition for your clients. Also enclosed is a copy of the Subpoena to Attend and Testify that we will be serving upon Mr.Victor Kicera as soon as we receive the issued Subpoena back from the Court. In the meantime, my clients have instructed me to file a motion to compel your clients' attendance at the January 22,2014 depositions in order to avoid the possibility of further delays. We will forward that to you shortly. Please contact the undersigned with any questions or concerns. Otherwise,we look forward to seeing you at the depositions on January 22,2014. Sincerely, James M. Stein JMS/mcb Enclosures cc: Mr. Albert L. Kirkner IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA—CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER,BRIAN C. MCNEW Civil Action-Law and TRUST INVESTMENT GROUP, LLC, Plaintiffs V. No. 11-3968 Civil MICHAEL S. GLASS,MARGERY DANA : and DGK PROPERTIES,LP, Defendants Honorable M.L. Ebert,Jr. NOTICE OF DEPOSITION To: Michael S. Glass c/o Timothy P.Palmer,Esquire Kelly M. Ariosto,Esquire One Oxford Center 341 Grant Street,20'Floor Pittsburgh,PA 15219-1410 You are hereby notified that your deposition by oral examination will be taken at the Law Offices of Dick,Stein,Schemel,Wine&Frey,LLP, 119 East Baltimore Street,Greencastle,PA 17225, on Wednesday, January 22, 2014 at 3:00 PM. In addition, pursuant to Pa. R.C.P. 4007.1{d}{1} and 4009.1 et sec,you are required to bring the following documents and things to said deposition: 1. Any notes or other documents which pertain in any way to the subject matter of this litigation. Respectfully Submitted, ) I- Z7- 13 „ ,_ M Date: James M. Stein,Attorney for Plaintiff Dick, Stein, Schemel, Wine&Frey,LLP 13 West Main Street, Suite 210 Waynesboro,Pennsylvania 17268 {717}762-1160 PA Bar No. 84026 IN THE COURT OF COMMON PLEAS OF THE 39"$JUDICIAL DISTRICT OF PENNSYLVANIA—CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER,BRIAN C. MCNEW : Civil Action-Law and TRUST INVESTMENT GROUP, LLC, Plaintiffs V. : No. 11-3968 Civil MICHAEL S. GLASS,MARGERY DANA and DGK PROPERTIES,LP, Defendants Honorable M.L. Ebert,Jr. NOTICE OF DEPOSITION To: Margery Dana c/o Timothy P.Palmer,Esquire Kelly M.Ariosto,Esquire One Oxford Center 301 Grant Street,20t1i Floor Pittsburgh,PA 15219-1410 You are hereby notified that your deposition by oral examination will be taken at the Law Offices of Dick,Stein,Schemel,Wine&Frey,LLP, 119 East Baltimore Street,Greencastle,PA 17225, on Wednesday, January 22, 2014 at 1:00 PM. In addition, pursuant to Pa. R.C.P. 4007.1(d)(1) and 4009.1 et sec,you are required to bring the following documents and things to said deposition: 1. Any notes or other documents which pertain in any way to the subject matter of this litigation. Respectfully Submitted, Date: **��'' Stein f � p�nin4i James M LVl. JW1n, t�Gt�it.ey for i L"LLI-ff Dick, Stein, Schemel, Wine&Frey,LLP 13 West Main Street, Suite 210 Waynesboro,Pennsylvania 17268 (717) 762-1160 PA Bar No. 84026 IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA—CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW Civil Action- Law and TRUST INVESTMENT GROUP,LLC, Plaintiffs V. No. 11-3968 Civil MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Honorable M.L. Ebert,Jr. SUBPOENA TO ATTEND AND TESTIFY To: Mr. Victor Kicera 2834 Kissel Hill Road Lititz,PA 17543 You are ordered by the Court to come to the Law Offices of Dick,Stein,Schemel,Wine&Frey, LLP, 119 East Baltimore Street,Greencastle,PA 17225,on Wednesday,January 22,2014 at 10:00 AM to provide deposition testimony in the above case, and to remain until excused. If you fail to attend you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. Requested By: James M. Stein, Attorney for Plaintiff Dick, Stein, Schemel, Wine&Frey, LLP 13 West Main Street, Suite 210 Waynesboro,Pennsylvania 17268 (717) 762-1160 PA Bar No. 84026 Date: BY THE COURT: By Seal of the Court Prothonotary IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA- CUMBERLAND COUNTY ALBERT L. KIRKNER, BRIAN C. MCNEW Civil Action- Law and TRUST INVESTMENT GROUP, LLC, Plaintiffs V. No. 11-3968 Civil MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Honorable M.L. Ebert, Jr. ORDER OF COURT � day� NOW on this of % 2013, the Court, having reviewed the foregoing Motion to Compel Defendants' Appearance for Deposition and being fully advised in the premises, FINDS that the requested relief is appropriate. The Court therefore ORDERS that: Defendants and their counsel shall appear for the Depositions on January 22,2014,as Noticed by Plaintiffs or appropriate sanctions will be imposed upon further application to the Court. By the Court, Jud e �Ok c`:p '-- r � IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA- CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW CIVIL DIVISION and TRUST INVESTMENT GROUP, LLC ry— G.D.: 11-3968 Plaintiffs, V. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, r� - Defendants. ORDER ZO c AND NOW, this day of , upon consideration of Defendants' Motion for Leave to Amend New Matter and Counterclaims (the"Motion), it hereby is ORDERED and DECREED that said Motion is GRANTED. Defendants are hereby directed to file their Amended New Matter and Counterclaims, in the form attached to the Motion as Exhibit A, within .20 days from the date of entry of this Order. BY THE COURT: 144 , K. Ak;(,C-6 r IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA- CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW CIVIL DIVISION and TRUST INVESTMENT GROUP, LLC, G.D.: 11-3968 Plaintiffs, V. MICHAEL S. GLASS, MARGERY DANA DEFENDANTS' FIRST AMENDED NEW and DGK PROPERTIES, MATTER AND COUNTERCLAIMS Defendants. Filed on behalf of Defendants, MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES Counsel of Record for this Party: Timothy P. Palmer Pa. Id. No. 86165 NOTICE TO PLEAD: You are hereby Kelly M. Neal notified to file a written response to the Pa. Id. No. 306473 enclosed First Amended New Matter and Counterclaims within twenty (20) days of Buchanan Ingersoll & Rooney PC the date hereof. Firm I.D. #038 One Oxford Centre lukAwwm 20th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 562-8800 (telephone) (412) 562-1041 (fax) timothy.palmer @bipc.com L0 , 3 s ca C-;--T-j T--t-) -- :Y C) C)C' C-- C -< 1 { t IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA- CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW CIVIL DIVISION and TRUST INVESTMENT GROUP, LLC G.D.: 11-3968 Plaintiffs, V. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, Defendants. DEFENDANT'S FIRST AMENDED NEW MATTER AND COUNTERCLAIMS Michael S. Glass ("Glass"), Margery Dana ("Dana") and DGK Properties, LP ("DGK", together with Dana and Glass, "Defendants"), by and through their undersigned counsel Buchanan Ingersoll & Rooney PC hereby files this First Amended New Matter and Counterclaims, and in support thereof, respectfully state as follows: FACTS COMMON TO NEW MATTER AND COUNTERCLAIMS 1. On or about October 12, 2007, Trust Investment Group made a loan (the "2007 Loan") to DGK. The 2007 Loan was evidenced by a Mortgage Note dated October 12, 2007 executed by DGK in favor of Trust Investment Group in the amount of$3,200,000.00 (the "2007 Note"). A true and correct copy of the 2007 Note, which was referenced by the Plaintiffs in Paragraph 13 of the Complaint, is attached hereto as Exhibit 1. 2. The 2007 Loan was secured by a Mortgage executed by DGK in favor of Trust Investment Group (the "2007 Mortgage") and a guaranty executed by Ms. Dana, Ms. Glass and two others (the "Dana Guaranty"). A true and correct copy of the 2007 Mortgage, which was referenced by the Plaintiffs in Paragraph 13 of the Complaint, is attached hereto as Exhibit 2. A true and correct copy of the Dana Guaranty is attached to the Complaint as Exhibit"C." 3. At no time was Ms. Dana a partner of DGK. 4. In 2009, the 2007 Loan was refinanced. Plaintiffs Kirkner and McNew were the refinancing lenders. 5. To evidence the new loan, DGK executed and delivered a brand new Mortgage Note dated November 3, 2009 in the original principal amount of $2,200,000 to Plaintiffs Kirkner and McNew. A true and correct copy of the Mortgage Note is attached to the Plaintiffs' Complaint as Exhibit A. 6. In connection with the refinancing, Kirkner and McNew required the execution of a brand new mortgage (the "2009 Mortgage") and a brand new guaranty of Defendant Glass (the "2009 Glass Guaranty"). A copy of the 2009 Mortgage is attached to the Plaintiffs' Complaint as Exhibit A. A true and correct copy of the 2009 Glass Guaranty is attached to the Plaintiffs' Complaint as Exhibit B. 7. As part of the refinancing, and as consideration for not requiring Ms. Dana and the two other individuals to be guarantors of the refinanced debt, a considerable pay down was made. The 2009 loan(the "2009 Loan") was for$2,200,000. 8. Neither Ms. Dana nor the three other individuals who guaranteed the 2007 guaranteed the 2009 Loan nor was their consent to the 2009 Loan — and the new loan terms — ever obtained. 9. Specifically, prior to execution of the 2009 Note, it was agreed that that Victor Kicera and Denise Kicera would not be guarantors of the 2009 Loan. Upon learning this, Mr. Glass refused to guaranty the new loan with his wife, Ms. Dana. To the extent that the parties 2 ever intended Ms. Dana to guaranty the new loan prior that point, it was agreed that Ms. Dana would not guaranty the 2009 Loan at or around the time of the closing and the only guaranty executed at the closing of the 2009 Loan was by Mr. Glass only. At all times from that point and after, as agreed by all of the parties at or around the closing on the new loan, Mr. Glass was intended to be the only guarantor of the loan. 10. In April of 2011, Plaintiffs filed the Complaint asserting breach of guaranty claims against Defendants. Plaintiffs' breach of contract claim against DGK is based on its alleged failure to make payments due under the 2009 Note. 11. The breach of contract claim against Mr. Glass is based on its alleged failure to make payments due under the 2009 Glass Guaranty. However, Plaintiffs' breach of contract claim against Ms. Dana is based on the 2007 Dana Guaranty which guarantees the 2007 Loan only. 12. As set forth above, at the time of the refinancing in 2009, it was expressly agreed by all parties that Ms. Dana would not be a guarantor of the 2009 loan. Mr. Glass would not have agreed to execute his guaranty of the 2009 loan but for this agreement. Mr. Glass relied on Plaintiffs assurances in executing the guaranty of the 2009 loan. As a result of Plaintiffs' conduct, Mr. Glass has suffered damages in an amount to be determined at trial. NEW MATTER 13. Defendants incorporate all prior responses and allegations herein by reference. 14. Plaintiffs' Complaint is barred, in whole or in part, because it fails to state a claim upon which relief can be granted. 15. Plaintiffs' Complaint is barred, in whole or in part, to the extent that any claim is not ripe for adjudication. 3 16. Plaintiffs' Complaint is barred, in whole or in part, because Plaintiffs lack standing with respect to its claims against Defendant Dana. 17. Plaintiffs' Complaint is barred, in whole or in part, by the equitable principles of estoppel, unclean hands, and waiver. 18. Plaintiff Complaint is barred, in whole or in part, under the doctrines of novation and accord and satisfaction. 19. Plaintiffs' allegations against Defendant Dana fail to state a claim because Defendant Dana has no obligations to Plaintiffs under any of the instruments attached to the Complaint. 20. Plaintiffs' allegations against Defendant Dana fail because Defendant Dana was released as guarantor from the underlying loan obligations. 21. Plaintiffs' allegations against Defendant Dana fail to state a claim because Dana did not breach any obligation to Plaintiffs under any of the instruments attached to the Complaint. 22. Defendant Dana has no obligations to the Plaintiffs because, to.the extent Dana has any existing obligations under the Dana Guaranty attached to the Complaint as Exhibit "C," the Plaintiffs materially modified the underlying loan without Defendant Dana's consent, which modification caused Defendant Dana's obligations under the Dana Guaranty to be discharged. 23. Defendant Dana has no obligations to the Plaintiffs because, to the extent that Dana has any existing obligations under the Dana Guaranty attached to the Complaint as Exhibit "C", the material modifications to the underlying loan substantially increased the risks unto Defendant Dana without Defendant Dana's consent, which caused Defendant Dana's obligations under the Dana Guaranty to be discharged. 4 24. Defendant Dana has no obligations to the Plaintiffs because, to the extent Dana has any existing obligations under the Dana Guaranty attached to the Complaint as Exhibit "C," Plaintiffs have impaired Defendant Dana's subrogation rights, which caused Defendant Dana's obligations under the Dana Guaranty to be discharged. 25. Plaintiffs complaint is barred, in whole or in part, by the doctrine of fraudulent inducement. 26. Plaintiffs complaint is barred, in whole or in part, by the doctrine of fraud in the execution. 27. Plaintiffs complaint is barred, in whole or in part, by the doctrine of promissory estoppel. 28. Defendants hereby give notice that they intend to rely upon such other and further defenses as may become available or apparent during discovery in this case, and hereby reserves the right to amend this Answer and New Matter to Plaintiffs Complaint to assert any such defense. WHEREFORE, Defendants respectfully request that the Complaint is dismissed in its entirety, together with such other and further relief as is just and proper. COUNTERCLAIMS COUNTI Mr. Glass v Plaintiffs Breach of Contract 29. Defendants incorporate all prior responses and allegations herein by reference. 30. At the time of the refinancing, Plaintiffs and Mr. Glass agreed that Ms. Dana would not be a guarantor of the 2009 Loan. 5 31. In filing the Complaint, Plaintiffs have sought to hold Ms. Dana liable as a Guarantor of the 2009 Loan. Plaintiffs' conduct constitutes a breach of their contract with Mr. Glass. 32. Mr. Glass has suffered damages as a result of Plaintiffs' breach of contract and will suffer damages in the event that Ms. Dana is found to be liable as a guarantor of the 2009 Loan. Specifically, Mr. Glass has incurred attorneys' fees in defending this suit. Moreover, if Ms. Dana is found liable as a guarantor, Mr. Glass will suffer substantial damages insofar as his interests in marital assets — which otherwise would be exempt from execution in the event a judgment is entered against him under the 2009 Guaranty — will be subject to execution by Plaintiffs. Such damages exceed $25,000. WHEREFORE Defendant/Counterclaim-Planitiff Michael Glass requests that judgment be entered against Plaintiffs/Counterclaim-Defendants for breach of contract in an amount to be determined at trial together with attorneys' fees and costs of suit. COUNT II Mr. Glass v. Plaintiffs Promissory Estoppel 33. Defendants incorporate all prior responses and allegations herein by reference. 34. In agreeing to guaranty the 2009 loan, Mr. Glass relied on Plaintiffs' representations that Ms. Dana would not be a guarantor of the loan. But for Plaintiffs' representations, Mr. Glass would not have agreed to guaranty the 2009 loan. 35. Mr. Glass has suffered damages as a result of Plaintiffs' conduct and will suffer damages in the event that Ms. Dana is found to be liable as a guarantor of the 2009 Loan. Specifically, Mr. Glass has incurred attorneys' fees in defending this suit. Moreover, if Ms. 6 Dana is found liable as a guarantor, Mr. Glass will suffer substantial damages insofar as his interests in marital assets — which otherwise would be exempt from execution in the event a judgment is entered against him under the 2009 Guaranty — will be subject to execution by Plaintiffs. Such damages exceed $25,000. WHEREFORE Defendant/Counterclaim-Plaintiff Michael Glass requests that judgment be entered against Plaintiffs/Counterclaim-Defendants for promissory estoppel in an amount to be determined at trial together with attorneys' fees and costs of suit. Respectfully submitted, Dated: February 4, 2014 BUCHANAN INGERSOLL & ROONEY PC By: Le Q VM KYAJ Tknothy P.Talmer, Pa. Id.No. 86165 Kelly M.Neal, Pa. Id. No. 306473 One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219 (T): 412-562-8800 (F): 412-562-1041 7 UNSWORN VERIFICATION I, Michael Glass verify that I have read the foregoing Defendants' First Amended New Matter and Counterclaims, that I am authorized to make this Verification on Defendants' behalf and that the statements of fact therein 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 § 4904 relating to unsworn falsifications to authorities. DatedJ .4 Mi ael Glass IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA- CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW CIVIL DIVISION and TRUST INVESTMENT GROUP, LLC G.D.: 11-3968 Plaintiffs, V. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES Defendants. CERTIFICATE OF SERVICE I, hereby certify that on February 4, 2014, 1 caused a true and correct copy of the Defendants' First Amended New Matter to be served upon the persons listed below via U.S. Mail and electronic mail: James Stein, Esq. Dick, Stein, Schemel, Wine &Frey LLP 119 East Baltimore Street Greencastle, Pennsylvania 17225 @A- Kelly M. Nea MORTGAGE !VOTE $ 3,200,000.00 Lancaster, Pennsylvania October 12, 2007 For Value Received, DGIC PROPERTIES, LP, a Pennsylvania limited partnership, having a mailing address of P. O. Box 1998, Lancaster, PA 17508-1998 (hereinafter called "Mortgagor") promises to pay to the order of TRUST INVESTMENT GROUP, LLC, a Pennsylvania limited liability company, having a mailing address of 95 Brim Blvd., Chambersburg, PA 17201 (hereinafter called "Mortgagee"), its successors or assigns, in lawful money of the United States of America, the sum of THREE MILLION TWO HUNDRED THOUSAND DOLLARS ($8,200,000.00) and any additional moneys loaned or advanced by any holder hereof as hereinafter provided, as follows: The foregoing principal sum,without Interest except in the event of default, payable in two annual Installments: $500,000.00, on or before October 12, 2008, and the remainder, $2,700.000.00, on or before October 12, 2009; In addition thereto, In the event of default hereunder, the Mortgagor agrees to pay interest on the amount due hereunder, until final payment, at the rate of"Prime"as periodically reported In the Wall Street Joumal, plus four (4%) percent; all payments to be made at 95 Brim Blvd., Chambersburg, Pennsylvania 17201 or elsewhere as shall be directed by any holder hereof. This Note shall evidence, and the Mortgage given to secure Its payment, shall cover and be security for any future loans or advances that may be made to or on behalf of the Mortgagor by any holder hereof at any time or times hereafter and Intended by the Mortgagor and the then holder to be so evidenced and secured, as well as any sums paid by any holder hereof pursuant to the terms of said Mortgage, and any such loans, advances or payments shall be added to and shall bear Interest at the same rate as the principal debt. In case default be made for the space of thirty (30) days in the payment of any Installment of principal, or Interest, or In the performance by the Mortgagor of any of the other obligations of this Note or said Mortgage, the entire unpaid balance of the principal debt, additional loans or advances and all other sums paid by any holder hereof to or on behalf of the Mortgagor pursuant to the terms of this Note or said Mortgage,together with unpaid interest thereon, shall at the option of the holder and without notice become immediately due and payable,and one or more executions may forthwith Issue on any judgements obtained by virtue hereof; and no failure on the part of any holder hereof to exercise any of the rights hereunder shall be deemed a waiver of any such rights or of any default hereunder. The Mortgagor hereby empowers any attorney of any court of record within the United C 5 States of America or elsewhere to appear for the Mortgagor and, with or without complaint 0 - filed, confess judgment, or a series of judgments, against the Mortgagor in favor of any holder hereof, as of any term, for the unpaid balance of the principal debt, additional loans eel or advances and all other sums paid by the holder hereof to or on behalf of the Mortgagor pursuant to the terms of this Note or said Mortgage, together with unpaid interest thereon, costs of suit and an attorney's commission for collection of ten per cent (10%) of the total indebtedness, or$1,500.00, whichever Is greater, on which judgment or 2 9 judgments one or more executions may Issue forthwith upon failure to comply with any of the terms and conditions of this Note or said Mortgage. To the extent permitted by law, the Mortgagor hereby forever waives: (1) the necessity of filing any affidavit of non- military service; (2) all notice of levy as well as any right to request a release from levy from any and all real and personal property levied upon or attached; (3) all defects or irregularity in any writ of execution, levy,foreclosure or service, any law, usage or custom to the contrary notwithstanding. This Mortgage Note is subject to Mortgagor's right of offset for fees, costs, expenses and charges arising from indemnifications granted by Mortgagee to Mortgagor for any liability incurred due to tax or title considerations, or due to the assignment of that certain excavating contract between Mortgagee and Affordable excavating &Hauling, Inc. This obligation shall bind the Mortgagor and the Mortgagor's heirs, executors, administrators, successors and assigns, and the benefits hereof shall inure to the Mortgagee hereof and Its successors and assigns. This Note Is assignable by the Mortgagee. This Note Is secured by a Mortgage of even date herewith upon real estate described therein. Witness: DGK Properties, LP, by bGK RE, LLC,its General Partner d BY --� M ael S Glass Member � Y � A e a,Member V V �a c� �g e L MORTGAGE _ r.`f Made this day of October, 2007, Between DGK PROPERTIES, LP, a Pennsylvania limited partnership, having a mailing address of P.O. Box 1998, Lancaster, PA 17608-1998, (hereinafter called "Mortgagor") And TRUST INVESTMENT GROUP, LLC, a Pennsylvania limited liability company, having a mailing address of 95 Brim Blvd., Chambersburg, PA 17201 (hereinafter called "Mortgagee"). WHEREAS, Mortgagor has executed and delivered to Mortgagee a certain Mortgage Note (hereinafter called the"Note") of even date herewith, payable to the order of Mortgagee In the principal sum of THREE MILLION TWO HUNDRED THOUSAND DOLLARS ($3,200,000.00), lawful money of the United States of America, and has provided therein for payment of any additional moneys loaned or advanced thereunder by Mortgagee, together with Interest thereon at the rate provided In the Note, In the manner and at the times therein set forth, and containing certain other terms and conditions, all of which are specifically Incorporated herein by reference; NOW, THEREFORE, Mortgagor, intending to be legally bound, and In consideration of said debt and as security for the payment of the same and Interest as aforesaid,together with all other sums payable hereunder or under the terms of the Note, does grant and convey unto Mortgagee, its successors and assigns: ALL the following described real estate lying and being situate In Cumberland County, Pennsylvania, bounded and described as follows: See Attached Exhibit"A" TOGETHER with the buildings and Improvements erected thereon, t";e appurtenances thereunto belonging and the reversions, remainders, rents, issues and profits thereof. TO HAVE AND TO HOLD the same unto Mortgagee, its successors and assigns, forever. PROVIDED, HOWEVER, That if Mortgagor shall pay to Mortgagee the aforesaid debt a or iprincipal sum, Including additional loans or advances and all other sums payable by Mortgagor to Mortgagee hereunder and under the terms of the Note, together with Interest a thereon, and shall keep and perform each of the other covenants, conditions and r .9 agreements hereinafter set forth, then this Mortgage and the estate hereby granted and e a conveyed shall become void. THIS MORTGAGE is executed and delivered subject to the following covenants, conditions and agreements: (1) The Mortgagor shall pay the said debt together with interest thereon at the rate provided In the Note In the manner and at the times set forth In the Note. r (2) The Note secured hereby shall evidence, and this Mortgage shall cover and be security for, any future loans or advances that may be made by Mortgagee to Mortgagor at any time or times hereafter and Intended by Mortgagor and Mortgagee to be so evidenced and secured, and such loans and advances shall be added to the principal debt. (3) From time to time until said debt and interest are fully paid, Mortgagor shall; (a) pay and discharge,when and as the same shall become due and payable,all taxes, assessments, sewer and water rents, and all other charges and claims assessed or levied from time to time by any lawful authority upon any part of the mortgaged premises and which shall or might have priority in lien or payment to the debt secured hereby, (b)pay all ground rents reserved from the mortgaged premises and pay and discharge all mechanics' liens which may be filed against said premises and which shall or might have priority In lien or payment to the debt secured hereby, (c)pay and discharge any documentary stamp or other tax,including interest and penalties thereon, if any, now or hereafter becoming payable on the Note evidencing the debt secured hereby, (d)provide, renew and keep alive by paying the necessary premiums and charges thereon such policies of hazard and liability insurance as Mortgagee may from time to time require upon the buildings and Improvements now or hereafter erected upon the mortgaged premises,with loss payable clauses in favor of Mortgagor and Mortgagee as their respective Interest may appear,such policies to be deposited as collateral secured with the Mortgagee, and (e) promptly submit to Mortgagee evidence of the due and punctual payment of all the foregoing charges; provided, however, that Mortgagee may, at it's option, require that sums sufficient to discharge the foregoing charges to be paid In installments to Mortgagee. (4) Mortgagor shall maintain all buildings and Improvements subject to this Mortgage in good and substantial repair,as determined by Mortgagee. Mortgagee shall have the right to enter upon the mortgaged premises at any reasonable hour for the purpose of inspecting the order, condition and repair of the buildings and improvements erected thereon. Mortgagor warrants title to the mortgaged premises. (5) In the event Mortgagor neglects or refuses to pay the charges mentioned at (3)above, or falls to maintain the buildings and Improvements as aforesaid, Mortgagee may do so, add the cost thereof to the principal debt secured hereby, and collect the same as part of said principal debt. (5) Mortgagor covenants and agrees not to create, nor permit to accrue, upon all or any part of the mortgaged premises, any debt, lien or charge which would be prior to, or on a parity with, the lien of this Mortgage. Mortgagor shall comply with all laws,ordinances, regulations, and orders of all Federal, State, Municipal and other governmental authorities relating to the Mortgaged premises. (7) In case default be made for the space,of thirty(30)days in the payment of any installment of principal, or Interest pursuant to the terms of the Note,or In the performance by Mortgagor of any of the other obligations of the Note or this Mortgage,the entire unpaid balance of said principal sum, additional loans or advances and all other sums paid by Mortgagee pursuant to the terms of the Note or this Mortgage,together with unpaid interest thereon shall at the option of Mortgagee and without notice become immediately due and payable,and an action of mortgage foreclosure may be brought forthwith on this Mortgage and prosecuted to judgment,execution and sale for the collection of the same,together with costs of suit and attorney's commission for collection of ten per cent(10%) of the total indebtedness or fifteen hundred ($1,500.00)dollars,whichever is greater. To the extent permitted by law, Mortgagor hereby forever waives(a)the necessity of filing any affidavit of non- military service; (b)all notice of levy as well as any right to request a release from levy from any and o all real and personal property levied upon or attached; and(c)the benefit of all appralsement, stay s and exemption laws and all bankruptcy or Insolvency laws now In force or hereinafter passed, any law, a usage or custom to the contrary notwithstanding. ma (8) From time to time upon notice given by Mortgagor, Mortgagee will release from this mortgage certain parcels included within the Real Estate upon the condition that the fair market value, s as reasonably determined by the holder of the Mortgage Note, of the remaining parcels described above, Is at least equal to 120%of the remaining balance due under the Mortgage Note. M :a THIS mortgage and the note executed and delivered to mortgagee herewith Is not assignable and may not be assumed by any other person or legal entity. Except as described and allowed In Section 8,above, If all or part of the real estate described herein, or an Interest therein, Is sold, transferred or conveyed by the Mortgagor, or upon any transfer of possession of the real estate described herein by the Mortgagor whether by conveyance, long-term lease, installment sales agreement, or otherwise, the entire unpaid balance of the said principal sum and all other sums paid by Mortgagee pursuant to the terms of the note or this mortgage, together with unpaid Interest thereon, shall become Immediately due and payable to Mortgagee. The provisions of this paragraph shaU not apply to (a) transfer by devise, descent, or by operation of law upon death of a joint tenant or tenant by the entlretles, or(b) grant of any leasehold interest of three years or less not containing an option to purchase. THIS mortgage Is taken by the Mortgagee to secure the repayment of money actually advanced by the Mortgagee to or on behalf of the Mortgagor at the time the Mortgagor acquires title to the property herein described, and used by the Mortgagor at that time to pay all or part of the purchase price of said real estate, and this mortgage is expressly stated to be a purchase money mortgage. AND it Is expressly certified and declared that this indenture of mortgage Is subject, in both lien and priority of payment, to a certain mortgage to secure the payment of the principal sum of$s,000,000.00 (Eight Million Dollars), given by said Mortgagor to First Commonwealth Bank, dated October 12, 2007, and recorded in Cumberland County, Pa., as Instrument No. " This Mortgage shall be subordinate In both lien and priority of payment to, and Mortgagee shall execute subordination agreements as requested from time to time by, Mortgagor's institutional lenders providing Initial acquisition and development funds from time to time. THE covenants, conditions and agreements contained In this Mortgage shall bind,and the benefits thereof shall inure to,the respective parties hereto and their respective heirs, executors, administrators, successors and assigns, and if this Mortgage Is executed by more than one person,the undertakings and liability of each shall be joint and several. WITNESS the due execution hereof the day and year first above written, Wftness: DGK Propertlea; LP, by DGK RE, LLC, its General Partner 8y 1F+1chael P.Giass Member gy victor Kite Member C lr �3 1: V � A COMMONWEALTH OF PENNSYLVANIA: SS% COUNTY OF Lancaster: On this Day of October, 2007,before me, a notary pubilc, personally Michael S.Glass and Victor Kicera, members of DGK RE,LLC,a Pennsylvania limited liability company, known to me or satisfactorily proven to be the Persons whose named are subscribed to the within instrument and acknowledged that they executed the same In the capacities therein stated and for the pur es therein contained. ra Wltriess Whereof, I hereunto set my hand and official seat. Notary Pubic 00hIHR WEAL. OF A;NNBY VAMA MWNI Seal Patndet R.HbstNtet,Notary f�libffo cayofusmtv,l.m�ao�torCcxg�gr Nly�ril tip tom,27,�'l9 tNambet,RannsylvanlaAs�aia�ah Certificate of RegIdence of Vlortgaoe I hereby certify that Mortgagee's precise address Is: 95 Brirn Boulevard, Chambersburg, PA 7201 Date: .,fit-for Mortgagee a Y Q _ 3 yI �Pr ail i gg w � u .v o ALL THAT CERTAIN tract of land located on the north side of Ritner Highway(SR- 0l 1),also]mown as US Route 11 and on the west side ofNewville Road(SR-0533),also known z as PA Route 533,said tract is situate partly in Southampton Township and situate partly in Shippensburg Township, Cumberland County,Pennsylvania,more fully on a Final Subdivision and Land Development Plan of"Deerfield"prepared by ELA Group,Inc.and recorded as Instrument No.200739185,said tract of land bounded and described as follows: BEGINNING at a point in the centerline intersection of Ritner Highway and Newvifle Road,thence in the centerline ofRitner Highway,on a curve concave to the south having a central angle of 2'07' 08",a radius of 11,459.16',an arc length of 423.79', and the chord thereof being South fifty-four degrees twenty-eight minutes fifty-seven seconds West,four hundred twenty-three and seventy-seven hundredths feet(S 54'28' 57"W-423.77'),to a point in Ritner Highway;thence continuing in the centerline of Ritner Highway,South fifty-three degrees twenty-five minutes twenty-three seconds West, one thousand two hundred eighty-six and fifty- four hundredths feet(S 53' 25' 23"W- 1,286.54')to a point in the centerline of Ritner Highway;thence continuing in the centerline of Ritner Highway,on a curve concave to the south, having a central angle of 8' 30' 00",a radius of 5,729.58',an are length of 850.00',and the chord thereof being South forty-nine degrees ten minutes twenty-three seconds West,eight hundred forty-nine and twenty-two hundredths feet(S 49' 10'23"W-849.22'),to a point in the centerline of Ritner Highway;thence continuing in the centerline of Ritner Highway, South forty- four degrees.fifty-five minutes twenty-three seconds West,three hundred eighty-four and eighty- three hundredths feet(S 44' 55'23"W-384.83'),to a point in the centerline of Ritner Highway; thence leaving Ritner Highway,partially by lands of Amerigas Propane,LP,North forty-five degrees fifty-six minutes thirty-one seconds West,twenty-five and zero hundredths feet(N 45' 56'31"W-25,00'),to a point on the existing northern right-of-way line of Ritner Highway; .thence along the existing northern right-of-way line of Ritner Highway,North forty-four degrees fifty-five minutes twenty-three seconds East,three hundred eighty-five and twenty hundredths feet(N 44' 55' 23"E-385.20'),to a point on the existing northern right-of-way line of Ritner Highway;thence continuing on the existing northern right-of-way line of Ritner Highway on a curve concave to the south having a central angle of 00°28' 13",a radius of 5,754.28',an arc length of 47.22',and the chord thereof being North forty-five degrees nine minutes twenty-nine seconds East,forty-seven and twenty-two hundredths feet(N 45'09'29"E-47,22')►to a point on the northern existing right-of-way line of Rimer Highway; thence leaving the northern right- of-way lime of Ritner Highway,by Lot No. l of"Deerfield",North forty-four degrees thirty-six minutes twenty-five seconds West,two hundred eighty and thirty-five hundredths feet(N 44'36' 25"W-280.35'),to a point;thence continuing by Lot No. 1 of"Deerfield",North forty-six degrees zero minutes forty-nine seconds East, three hundred seventeen and twenty hundredths feet(N 46'00'49"E-317.20')to a point;thence continuing by Lot No. 1 of"Deerfield", North seventy-three degrees fifty-five minutes forty-three seconds East,forty-five and one hundredths feet(N 73'55'43"E-45.01')to a point on the western right-of-way line of Deerfield Lane; thence along the western right-of-way line of Deerfield Lane on a curve concave to the east, having a central angle of 30'41' 27",a radius of 530.00', an are length of 283.90',and the chord thereof being North zero degrees forty-three minutes thirt},-four seconds West,two hundred EXHIBIT"A" . n eighty and fifty-one minutes(N 00'43' 34"W-280.51'),to a point on the western right-of-way line of Deerfield Lane;thence continuing on the western right-of-way line of Deerfield Lane, North fourteen degrees thirty-seven minutes nine seconds East,one hundred fifteen and twenty- one hundredths feet(N 14'37' 09"E- 115.21'),to a point on the western right-of-way line of Deerfield Lane;thence continuing on the western right-of way line of Deerfield Lane on a curve concave to the west having a central angle of 74' 13' 16",a radius of 595.00 ,an arc length of 770.76',the chord thereof being North twenty-two degrees twenty-nine minutes twenty-nine seconds West, seven hundred seventeen and ninety-nine hundredths feet(N 22'29' 29"W- 717.99'),to a point on the westernn right-of-way line of Deerfield Lane; thence leaving the western right-of-way line of Deerfield Lane and by Lot No.3 of"Deerfield", South thirty-six degrees fifty minutes fifty-seven seconds West,one thousand six hundred thirty-nine and sixteen hundredths feet(S 36'50' 57"W- 1,639.16')to a point on line of lands of Shippensburg Mobile Estates,Inc.;thence by lands of Shippensburg Mobile Estates,Inc.,North forty-five degrees four minutes five seconds West,nine hundred two and ninety-nine hundredths feet(N 45' 04' 05"W- 902.99%to a point;thence continuing by lands of Shippensburg Mobile Estates,Inc.,South forty-six degrees five minutes two seconds West,one thousand one hundred ninety-five and fifty- five hundredths feet(S 46'05' 02"W- 1,195.55')to a point;thence continuing by lands of Shippensburg Mobile Estates,Inc., South thirty-six degrees forty-one minutes thirteen seconds East,four hundred ninety-nine and twenty hundredths feet(S 36°41' 13"E-499.20'),to a point; thence continuing by lands of Shippensburg Mobile Estates,Inc.,South forty-six degrees thirteen minutes fifty-nine seconds East,six hundred ninety-six and twenty-eight hundredths feet(S 46' 13' 59"E-696.28'),to a point,being the northeastern corner of lands of Pennsylvania Electric Co.;thence by lands of William S.&Mary T. Craig,North forty-six degrees thirty-two minutes one second West, six hundred ninety-six and seventy-one hundredths feet(N 46°32' 01"W- 696.71%to a point;thence by lands of Paul E.&Grace Hornbaker,North thirty-six degrees forty-one minutes forty-five seconds West,five hundred and ninety-three hundredths feet(N 36' 41' 45"W-500.93'),to a point;thence by lands of Laverne B. &Norene S. Sensenig,North forty-six degrees five minutes two seconds East,one thousand four hundred thirty-one and ninety-four hundredths feet(N 46'05' 02"E- 1,431.94'),to a 1"iron pipe(found);thence continuing by lands of Laverne B.and Norene S. Sensenig,North fifty degrees forty-two minutes twenty-eight seconds West,five hundred forty and twenty-two hundredths feet(N 50°42' 28"W -540.22'), to a No. 5 rebar(set);thence continuing by lands of Laverne B. and Norene S. Sensenig,North fifteen degrees thirty-four minutes fifty seconds East,one hundred ninety-five and sixteen hundredths feet(N 15°34' 50"E- 195.16'),to a 1"iron pipe(found);thence continuing by lands of Laverne B.and Norene S. Sensenig,North fifteen degrees fifty-four minutes two seconds East,six hundred thirty-four and eighty-eight hundredths feet(N 15' 54' 02"E-634.88'),to a 1"iron pipe(found);thence by lands of Ray E. and Jean L. Thrush,North eighty-five degrees zero minutes thirty-five seconds East,eight hundred forty-two and ninety- three hundredths feet(N 85'00' 35"E- 842.93'),to a 1"iron pipe(found);thence by lands of The Chester L. Smith and Pauline M. Smith Revocable Trust,North eighty-five degrees fifty-two minutes twelve seconds East,one thousand seven hundred eighty-six and fifty hundredths feet(N 85° 52' 12"E- 1,786.50'),to a 1"iron pipe(found);thence continuing by lands of The Chester L.Smith and Pauline M. Smith Revocable Trust,North thirty-nine degrees fifty-three minutes EXIMIT"A" 1 � • sixteen seconds East,seventy-four and twenty-six hundredths feet(N 39'53' 16"E-74.26'),to a no. 5 rebar(set);thence continuing by lands of The Chester L. Smith and Pauline M. Smith Revocable Trust,South forty-seven degrees twenty-eight minutes two seconds East, three hundred twenty-one and ninety-three hundredths feet(S 47'28' 02"E-321.93"),to a 30"cherry tree;thence continuing by lands of The Chester L. Smith and Pauline M.Smith Revocable Trust, North forty-two degrees forty-four minutes twenty-three seconds East,five hundred thirteen and one hundredth feet(N 42'44' 23"E-513.01')to a fence post;thence continuing by lands of The Chester L. Smith and Pauline M. Smith Revocable Trust,South thirty-five degrees thirty-nine minutes thirty-three seconds East,eighty-five and seventy-six hundredths feet(S 35'39'33"E- 85.76'),to a railroad spike(found)in the old roadbed of Newville Road;thence in and along Newville Road,South twenty-five degrees twenty-one minutes five seconds East,two hundred twenty-four and nine hundredths feet(S 25'21' 05".E-224.09'),to a point in or near the existing centerline of Newville Road;thence in or near the centerline of Newville Road,South twenty-nine degrees forty-five minutes ten seconds East,eight hundred fifty-nine and fifty-five hundredths feet(S 29'45' 10"E-859.55'),to a point in the centerline intersection of Newville Road and Ritner Highway,the point of Beginning. CONTAINING 127.544 Acres BEING THE SAME PREMISES which Trust Investment Group,LLC, a Pennsylvania Limited Liability Corporation,by deed dated even date herewith and intended for immediate recording in the Office for the Recorder of Deeds in and for Cumberland County,Pennsylvania, granted and conveyed unto DGK Properties,LP its successors and assigns. EXHIBIT"A" IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW and TRUST INVESTMENT GROUP, LLC, Plaintiffs v. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Civil Action - Law No. 11 -3968 Civil Honorable M. L. Ebert, Jr. PLAINTIFFS' ANSWER TO DEFENDANTS' FIRST AMENDED NEW MATTER AND COUNTERCLAIMS COME NOW the above named Plaintiffs, by and through their undersigned attorney, and for their Answer to the Defendants' First Amended New Matter and Counterclaims state to the Court as follows: 1. - 14. Plaintiffs incorporate paragraphs 1 through 14 of their Complaint as if fully set forth herein. 1 [sic]. Admitted. 2. Admitted, with the clarification that the guarantee was executed by Ms. Dana, Mr. Glass and Mr. and Mrs. Kicera. 3. After reasonable investigation, the Plaintiffs are without sufficient information to verify the allegations contained in paragraph 3 of the Defendants' New Matter, and thus they deny such allegations. Strict proof is demanded at trial. 4. Denied. The parties did not "refinance" the loan in 2009. Instead, they simply changed terms using the same debt and the same lender, who were the equal members of the original Trust Investment Group, LLC. 5. To the extent that the 2009 Mortgage Note speaks for itself, the Plaintiffs deny any characterization of said Mortgage Note set forth in the Defendant's New Matter. The Plaintiffs admit that the parties entered into a Mortgage Note dated November 3, 2009 in an amount of $2,200,000.00. 6. Denied. The Plaintiffs deny that this was "a refinancing." The Plaintiffs admit that the parties executed a 2009 Mortgage and a 2009 Guarantee. The Plaintiffs deny, however, any characterization that the Glass signature on the new Guarantee replaced or nullified the guarantees of the other defendants in the 2007 Guaranty. 7. Denied. The Plaintiffs deny that there was ever any conversation between the parties regarding a pay down of the loan in exchange for removing Ms. Dana as guarantor. 8. Denied. The 2009 loan continues to be supported by the 2007 Guaranty. Furthermore, the 2007 guaranty specifically provides that none of the guarantors' consent is required to modify the loan. 9. Denied. The Plaintiffs deny that Mr. Glass ever refused to guaranty the new loan with his wife, and they further deny that there was ever any conversation regarding Ms. Dana. Instead, the Mr. Glass prepared the documents simply to evidence a change in amount of the loan after the pay down. There was never any discussion or intent to remove Ms. Dana as a guarantor and thus shield all of the Glass and Dana assets from being available to cover the loan. 10. The Complaint speaks for itself. The Plaintiffs deny any characterization of their intent in filing the Complaint. 11. Denied. Any characterization of the Plaintiffs' Complaint is denied for the reason that the Complaint speaks for itself. Both the 2007 and 2009 Guarantees suffice to guarantee payment of the 2007 loan, which was simply modified by the 2009 loan documents. 12. Denied. The parties had no discussion regarding Ms. Dana in conjunction with signing the 2009 loan documents. The Plaintiffs deny that Mr. Glass could have relied on Plaintiffs assurances because the Plaintiffs made no such assurances regarding Ms. Dana. Consequently, the Plaintiffs deny that Mr. Glass could have suffered any damages based on this issue. NEW MATTER 13. No answer required. The Plaintiffs incorporate all previous paragraphs of their Complaint and this Answer by reference. 14. The allegations contained in paragraph 14 are legal conclusions to which no answer is required. To the extent that an answer is required, the Plaintiffs deny the allegations for the reasons set forth in their Complaint. 15. The allegations contained in paragraph 15 are legal conclusions to which no answer is required. To the extent that an answer is required, the Plaintiffs deny the allegations for the reasons set forth in their Complaint. 16. The allegations contained in paragraph 16 are legal conclusions to which no answer is required. To the extent that an answer is required, the Plaintiffs deny the allegations for the reasons set forth in their Complaint. 17. The allegations contained in paragraph 17 are legal conclusions to which no answer is required. To the extent that an answer is required, the Plaintiffs deny the allegations for the reasons set forth in their Complaint. In addition, these defenses are equitable defenses and do not apply to this action at law. 18. Denied. The allegations contained in paragraph 18 are legal conclusions to which no answer is required. To the extent that an answer is required, the Plaintiffs deny the allegations for the reasons set forth in their Complaint. 19. Denied for the reasons set forth in the Complaint, Defendant Dana has obligations to the Plaintiffs based on the 2007 guaranty. 20. Denied. The parties never discussed releasing Ms. Dana as a guarantor, and there are no documents which indicate such a release. 21. Denied. As the Complaint makes clear, Ms. Dana guaranteed the 2007 loan and all future modifications to said loan. Consequently, she is liable for the Defendants' failure to pay on the loan as required. 22. Denied. The 2007 Guarantee puts Defendant Dana on notice that the underlying loan could be modified without her consent. In addition, the modification reduced the amount of the loan and thus reduced Ms. Dana's exposure. 23. Denied. The modification did not increase her risk, but rather decreased her risk due to the decreased loan amount. The 2007 Guaranty makes clear that Ms. Dana is subject to joint and several liability. Thus her risk of exposure did not change simply because Mr. and Mrs. Kicera were left off the 2009 Guaranty. In addition, Mr. and Mrs. Kicera are still guarantors under the 2007 Guaranty. 24. Denied. The 2007 Guaranty contains no subrogation language which would give Defendant Dana the right to subrogate. 25. Denied. The allegations contained in paragraph 25 are legal conclusions to which no answer is required. To the extent that an answer is required, the Plaintiffs deny the allegations for the reason that they had no intent to defraud anyone. In addition, the allegations contained in paragraph 25 are vague in that they do not specify when this "inducement" occurred, or to whom it occurred. 26. Denied. The allegations contained in paragraph 26 are legal conclusions to which no answer is required. To the extent that an answer is required, the Plaintiffs deny the allegations for the reason that they had no intent to defraud anyone. In addition, the allegations contained in paragraph 26 are vague in that they do not specify when this "inducement" occurred, or to whom it occurred. 27. Denied. The allegations contained in paragraph 27 are legal conclusions to which no answer is required. To the extent that an answer-is required, the Plaintiffs deny that they made any promises regarding Ms. Dana at the time of signing the 2009 loan documents, and thus promissory estoppel would not apply. 28. Denied. The Plaintiffs deny that the Defendants are allowed to rely on any other defenses that are not raised herein. WHEREFORE, the Plaintiffs respectfully request that the Court grant the relief requested in their Complaint, along with such other relief as is just and equitable in the premises. COUNTER CLAIMS - COUNT I GLASS v. PLAINTIFFS 29. The Plaintiffs incorporate all paragraphs of their Complaint and this Answer herein by reference. 30. Denied. The parties never had any discussion with regard to Ms. Dana at the time of signing the 2009 loan modification documents. 31. Admitted in part and denied in part. Plaintiffs admit that the Complaint seeks to hold Ms. Dana liable as a guarantor of the 2007 loan, which was modified in 2009. The Plaintiffs deny that this breaches any contract with Mr. Glass. Specifically, the Plaintiffs deny that the parties ever entered into any oral contract to avoid altering the 2007 Guaranty on behalf of Ms. Dana. 32. Denied. As set forth above, there has been no breach of contract, and thus there can be no damages. Instead, it is the Plaintiffs who will suffer damage if the 2007 guaranty is not upheld. Without such guaranty the Plaintiffs will be unable to properly enforce their rights under the various mortgage documents. WHEREFORE, the Plaintiffs respectfully request that the Court deny the Defendants's Counter Claim, and grant the Plaintiffs the relief requested in their Complaint, along with such other relief as is just and equitable in the premises. COUNTER CLAIMS - COUNT II GLASS v. PLAINTIFFS - PROMISSORY ESTOPPEL 33. The Plaintiffs incorporate all prior paragraphs of their Complaint and this Answer as if set forth herein. 34. Denied. The Plaintiffs specifically deny ever making any such representations regarding Ms. Dana. 35. Denied. As set forth above, there has been no breach of contract, and thus there can be no damages. Instead, it is the Plaintiffs who will suffer damage if the 2007 guaranty is not upheld. Without such guaranty the Plaintiffs will be unable to properly enforce their rights under the various mortgage documents. WHEREFORE, the Plaintiffs respectfully request that the Court deny the Defendants's Counter Claim, and grant the Plaintiffs the relief requested in their Complaint, along with such other relief as is just and equitable in the premises. Date: Respectfully Submitted, 01/4/VI■‘..t() James M. Stein, Attorney for Plaintiffs Dick, Stein, Schemel, Wine & Frey, LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 PA Bar No. 84026 VERIFICATION I verify that the statements made in the foregoing pleading are true and correct to the best of my knowledge and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authoriti= s Date: 3/7/2 0 Albert L. Kirkner, Plaintiff PROOF OF SERVICE I HEREBY VERIFY that I have served the foregoing document upon the Defendant by sending one (1) true and correct copy thereof via regular mail, postage pre-paid, addressed as follows: Kelly M. Neal, Esq. One Oxford Center 301 Grant Street, 20th Floor Pittsburgh, PA 15219 Date: / q James M. Stein, Attorney for Plaintiffs Dick, Stein, Schemel, Wine & Frey, LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 PA Bar No. 84026 IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY ALBERT L. KIRKNER, BRIAN C. McNEW and TRUST INVESTMENT GROUP, LLC, Plaintiffs [ r,^ v. No. 11-3968 Civil rn rn t 1 r-_ €•`_, C) : 7 MARGERY DANA : "`' ES `CJ 'c) �: Defendants Honorable M.L. Ebert, Jr. ', 3'- -- Civil Action - Law MICHAEL S. GLASS, and DGK PROPERTI LP, MOTION TO COMPEL DEFENDANTS' APPEARANCE FOR DEPOSITIONS AND TO IMPOSE SANCTIONS COME NOW the above named Plaintiffs, by and through their undersigned attorney, and for their Motion to Compel Defendants' Appearance for Depositions and to Impose Sanctions state to the Court as follows: 1. On December 19, 2013, upon Plaintiffs' Motion to Compel, this Honorable Court issued an Order directing Defendants to appear for depositions in the above referenced matter on January 22, 2014. 2. On January 21, 2014, the parties agreed to continue the scheduled depositions due to an impending snow storm and the distance Defendants would be required to travel in said storm for the depositions. 3. Plaintiffs' counsel, through coordination with Defendants' counsel, Kelly M. (Ariosto) Neal, Esq., rescheduled the depositions for February 19, 2014. See Notices of Deposition attached hereto and by this reference collectively made a part hereof as Exhibit A. 4. On or about February 12, 2014, Attorney (Ariosto) Neal contacted undersigned counsel to request a continuance of the February 19, 2014 deposition due to an operation Defendant Michael Glass required on his back. See letter from Dr. Frank P. Cammisa, Jr. attached hereto and by this reference made a part hereof as Exhibit B. 5. Upon receipt of the letter attached as Exhibit B, undersigned counsel agreed to continue the depositions yet again. 6. On February 25, 2014 office of the undersigned counsel contacted Attorney (Ariosto) Neal via electronic mail to request an update on Defendant Glass' condition and to re -schedule the depositions. 7. On March 12, 2014, Attorney (Ariosto) Neal responded via electronic mail stating that Mr. Glass had a follow-up appointment in just over one (1) week and Attorney Neal would have a better idea of when to schedule the depositions after that appointment. 8. After receiving no further updates on Defendant Glass' condition, office of the undersigned counsel sent e-mail correspondence to Attorney (Ariosto) Neal on April 10, 2014 and again on April 21, 2014 inquiring about Mr. Glass' ability to appear for depositions. In support of paragraphs 6, 7 and 8 herein, see e-mail chain attached hereto and by this reference made a part hereof as Exhibit C. 9. On May 2, 2014,.when no response had been received from Attorney (Ariosto) Neal, undersigned counsel faxed and mailed a letter to both Attorney (Ariosto) Neal and Attorney Timothy P. Palmer, counsel of record, expressing a desire to immediately schedule depositions of the Defendants in the above referenced matter. A copy of said letter is attached hereto and by this reference made a part hereof as Exhibit D. -2- 10. As of the date of this Motion, the Defendants' counsel has failed to respond in any manner. 11. The Defendants have failed and refused to obey the Court's Order of December 19, 2013 compelling the Defendants to appear for deposition. 12. The Defendants continue to postpone scheduled depositions and ignore attempts by Plaintiffs' counsel to schedule depositions in the above captioned matter, continuing a pattern .of avoidance that has persisted for over a year. 13. The Plaintiffs are left with no altern alive other than to seek the Court's intervention to schedule and hold depositions. 14. The Plaintiffs have incurred attorney fees of approximately $3,900.00 in attempting to schedule depositions and in seeking the assistance of the Court. WHEREFORE, due to the numerous scheduling changes and continuance requests described above and in Plaintiffs' prior Motion to Compel, Plaintiffs request this Honorable Court issue an order compelling Defendants and their counsel to appear for Depositions. The Plaintiffs further request the Court Order the Defendants to pay counsel fees as set forth above, along with any other penalties and such other relief as the Court deems just and equitable in the premises. Respectfully submitted, Date: SA 3 -3- J. m James M. Stein, Attorney for Plaintiffs Dick, Stein, Schemel, Wine & Frey LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 Pa. Bar No. 84026 VERIFICATION I verify that the statements made in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S., Section 4904, relating to unsworn falsification to authorities. Date: 5/,12- 3' ,_)0,4,0 22) ac._ James M. Stein, Attorney for Plaintiffs PROOF OF SERVICE I HEREBY VERIFY that I have served the foregoing document upon counsel of record by depositing one (1) true and correct copy thereof in the United States Mail, postage prepaid, addressed as follows: Date: 3./z3 //Lf Kelly M. (Ariosto) Neal, Esquire Timothy P. Palmer, Esquire Buchanan, Ingersoll & Rooney, PC One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, TA 15219-1410 -4- c�� YID Ste. James M. Stein, Attorney for Plaintiffs IJ TH t COURT OF COMMON PLEAS OF THE 39 JUDICIAL DISTRICT OF PENNSYLVANIA — CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. McNEW Civil Action - Law • and TRUST INVESTMENT GROUP, LLC, Plaintiffs v. No. 11-3968 Civil MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants : Honorable M.L. Ebert, Jr. NOTICE OF DEPOSITION To: Michael S. Glass c/o Timothy P. Palmer, Esquire Kelly M. Ariosto, Esquire One Oxford Center 301 Grant Street, 20th Floor Pittsburgh, PA 15219-1410 You are hereby notified that your deposition by oral examination will be taken at the Law Offices of Dick, Stein, Schemel, Wine & Frey, LLP, 119 East Baltimore Street, Greencastle, PA 17225, on Wednesday, February 19, 2014 at 10:00 AM. In addition, pursuant to Pa. R.C.P. 4007.1(d)(1) and 4009.1 et sec, you are required to bring the following documents and things to said deposition: 1. Any notes or other documents which pertain in any way to the subject matter of this litigation. Date: Respectfully Submitted, 777 • • —17k2s James M. Stein, Attorney thr Plaintiff Dick, Stein, Schemel, Wine & Frey, LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 PA Bar No. 84026 IN THE COURT OF COMMON PLEAS OF THE 391 JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY BRANCH ALBERT. L. KIRKNER, BRIAN C. McNEW and TRUST INVESTMENT GROUP, LLC, Plaintiffs v. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Civil Action - Law No. 11-3968 Civil Honorable M.L. Ebert, Jr. NOTICE OF DEPOSITION To: Margery Dana c/o Timothy P. Palmer, Esquire Kelly M. Ariosto, Esquire One Oxford Center 301 Grant Street, 20th Floor Pittsburgh, PA 15219-1410 You are hereby notified that your deposition by oral examination will be taken at the Law Offices of Dick, Stein, Schemel, Wine & Frey, LLP, 119 East Baltimore Street, Greencastle, PA 17225, on Wednesday, February 19, 2014 at 1:00 PM. In addition, pursuant to Pa. R.C.P. 4007.1(d)(1) and 4009.1 et sec, you are required to bring the following documents and things to said deposition: 1. Any notes or other documents which pertain in any way to the subject matter of this litigation. Respectfully Submitted, Date: ) "(-4 -1 Y jTh, Attorney for James M. Stein, t1LLVLlIey Y10.111ti11 Dick, Stein, Schemel, Wine & Frey, LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 PA Bar No. 84026 FRANK P. CAMMISA JR. M.D., F.A.C.S SPINAL SURGERY THE HOSPITAL FOR SPECIAL SURGERY EAST RIVER PROFESSIONAL BUILDING 523 EAST 72ND STREET NEW YORK, NY 10021 Telephone: 212/606-1946 Facsimile: 212/472-1486 February 18, 2014 Re: Michael S. Glass To Whom it May Concern: This letter verifies that Michael Glass is under my care. He was initially seen in my office on February 12, 2014 for surgical consultation and diagnosed with herniated nucleus pulposus left L3-4, left L4-5 with lumbar stenosis and degenerativedisc disease, status post previous discectomy right L5-S1, left L4-5, severe left footdrop, disc bulging left L1-2. Mr. Glass was admitted at the Hospital for Special Surgery the same day and underwent posterior microsurgical decompressive laminectomy L3-4, L4-5 with disc excision left L3-4, left L4-5 the next day February 13, 2014. Due to the situation described above, the patient is unable to travel until further notice. Thank you for your attention to this matter. Sine isa, Jr., M.D., F.A.C.S. ef, Spinal Surgical Service Th Hospital for Special Surgery Associate Professor of Clinical Surgery Weill Medical College of Comell University Mary Brown From: Mary Brown <marydsslaw@pa.net> Sent: Monday, April 2l,2Ol4l15OAM To: Neal, Kelly M. (kelly.neal@bipc.com); keUy.ahosto@bipczom Subject: FW: Kirkner et. al. v. McNew et. al. Attorney Neal — Have you heard from your client regarding his recovery? Do you have ari estimated date of when the depositions can take place? Thank you. Mary C. Brown Paralegal, Notary Public Dick, Stein, SchemeiWine & Frey, LLP 13 West Main StreetSuite 210 Waynesboro,PA 17268 nnarydss|avx���ua.net (P) 717'762'1160 (F) 717-762-6040 The information transmitted by this email is considered attorney privileged and confidential and is intended for the use of the individual or entity named. If the reader mfthi:- message is not the intended recipient or the employee or agent responsible to deliver it to the intended recipient, you should be aware that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone and return the original message to us at the above address via the United States Postal Service. Thank you! From: Mary Brown [mailto:marydsslaw@pa.net] Sent: Thursday, April 10, 2014 4:08 PM To: 'Nea|,Kelly M.' : RE: Kirkner et. al. v. McNew et. al. Attorney Neal — 1 am checking with you on Mr, Glass'recovery. We would like to schedule depositions for mid to late May. Could you please reply with dates upon which you and your clients are available? Thank you. Mary C. Brown Paralegal, Notary Public Dick, Stein, Schenne',Wine & Frey, LLP 13 West Main Street, Sulte 210 Waynesboro, PA 17268 nnarydys(ovv@pa.net (P) 717-762-1160 (F) 717-762-6040 The information transmitted by this email is considered attorney privileged and confidential and is intended for the use of the individual or entity named. If the reader of this message is not the intended recipient or the employee or agent responsible to deliver it to the intended recipient, you should be aware that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone and return the original message to us at the above address via the United States Postal Service. Thank you! From: Neal, Kelly M.[naUto:kelkyneaft] Sent: WedMarch 12, 2014 2:39 PM To: Mary Brown Subject: RE: Kirkner et. al. v. McNew et. al. Mary, I just wanted to touch base with you on this so you don't thir.k we are intentionally ignoring you. 1 heard from Mike and his recovery has been progressng slowly.Given the extent of the recovery his mobility is poor and he is in a lot of pain. He has a follow up appointment with his surgeon in just over a week, so hopefully I will have a better idea of his recovery then and we can get the depositions scheduled. I appreciate your continued patience. Thanks, Kelly M. Neal Associate One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219-1410 412 562 8338 (o) 412 953 7431 (c) vCard | Bio 1 BIPC.com |TwitterLinkedln Buchanan Ingersoll & Rooney PC KNOW GREATER PARTNERSHIP From: Mary Brown mailto:marydsslaw(apa.net] t Sent: Tuesday, February 25, 2014 11:58 AM To: Neal, Kelly M. Subject: Kirkner at al. v. McNew et. al. Hello Attorney Neal- |anne'mai|ingtogetanuodateonthedatesthatAttorneySteingaveyou|astvveek. Have you had any feedback from your clients as to their availability? Thank you. Mary C. Brown Paralegal, Notary Public Dick, Stein, Schemel, Wine & Frey, LLP 13 West Main Street, Suite 210 2 Waynesboro, PA 17268 marydsslawPpa.net (P) 717-762-1160 (F) 717-762-6040 The information transmitted by this email is considered attorney privileged and confidential and is intended for the use of the individual or entity named. If the reader of this message is not the intended recipient or the employee or agent responsible to deliver it to the intended recipient, you should be aware that any dissemination, distribution or copying of this communication is strictly prohibited. if you have received this communication in error, please immediately notify us by telephone and return the original message to us at the above address via the United States Postal Service. Thank you! TAX ADVICE DISCLAIMER: Any federal tax advice contained in this communication (including attachments) was not intended or written to be used, and it cannot be used, by you for the purpose of (1) avoiding any penalty that may be imposed by the Internal Revenue Service or (2) promoting, marketing or recommending to another party any transaction or matter addressed herein. If you would like such advice, please contact us. Above email is for intended recipient only and may be confidential and protected by attorney/client privilege. If you are not the intended recipient, please advise the sender immediately. Unauthorized use or distribution is prohibited and may be unlawful. 3 4 4 DSS Vr LAW DICK, STEIN, SCHEMEL, WINE & FREY, LLP WILLIAM S. DICK JAMES M. STEM (AlsoadmmedmIA) PAUL T. SCHEMELWsoadaiuedinMcsWV) J. EDGAR WINE JOHN W. FREY JOSEPH L. DOYLE JAMES M. SCHALL ELIZABETH A. CLARK (Also ad„uedma,MO&N.) ATTORNEYS AT LAW Timothy P. Palmer, Esquire Kelly M. (Ariosto) Neal, Esquire Buchanan, Ingersoll & Rooney, PC One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219-1410 13 W. Main Street, Suite 210 • Waynesboro, PA 17268 (717) 762-1160 • FAX (717) 762-6040 www.dsslaw.lawoffice.com Offices also located in Greencastle, PA and McConnellsburg, PA May 2, 2014 Via Facsimile: 412-562-1041 and regular mail RE: Kirkner, et al. v. Glass, et al. Cumberland County Case No. 11-3968 Civil Dear Attorneys Palmer and Neal: We note that we have received no responses to our electronic mail communication on April 10, 2014 and April 21, 2014 inquiring about dates for the depositions in the above referenced matter. As you are aware, we have been attempting to schedule said depositions for well over one year. Please provide us with dates in the month of June 2014 when you and your clients are available for depositions in this matter. We understand that Mr. Glass' recent back surgery may preclude him from attending depositions in the month of June. If that is the case, please provide our office with an updated letter from his doctor. In the event that Mr. Glass is not available for deposition, we still intend to proceed with the deposition of Ms. Dana in June, 2014. If we have not received dates upon which you and your clients are available within one (1) week of the date of this letter, we are prepared to file a second motion to compel the depositions in this matter, and to seek appropriate sanctions if necessary. JMS/mcb cc: Mr. Albert L. Kirkner Sincerely, James M. Stein IN THE COURT OF COMMON PLEAS OF THE 39T11 JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY ALBERT L. KIRKNER, BRIAN C. McNEW and TRUST INVESTMENT GROUP, LLC, Plaintiffs v. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Civil Action - Law c-� .7 =� No. 11-3968 Civil -i rT U7r- ! • CD .4 - CD Honorable M.L. Ebert,J c % ? RULE TO SHOW CAUSE AND NOW, this j rd day of J ic_h,2_, , 2014, upon consideration of the foregoing Motion to Compel Defendants' Appearance for Depositions and to Impose Sanctions, it is hereby ordered that: 1. A rule is issued upon the Defendants to show cause why the Plaintiffs are not entitled to the relief requested; 2. The Defendants shall file a verified Answer to the Motion to Compel Defendants' Appearance for Depositions and to Impose Sanctions within twenty (20) days of service upon the Defendants; 3. The Motion to Compel Defendants' Appearance for Depositions and to Impose Sanctions shall be decided under Pa. R.C.P. 206.7; 4. Depositions, if necessary, shall be completed within 41'S days of the service upon Plaintiffs of the Answer to the Motion to Compel Defendants' Appearance for Depositions and to Impose Sanctions; 5. Hearing and/or argument shall be held on C� t l , 20 / at / 0:0 o CLAYAR rla h d o'clock It .M. in Courtroom # f theme County Courthouse, Carlisle, Pennsylvania; 6. If Paragraphs 4 and 5 are not completed, depositions and/or argument or hearing will be considered upon request of either party; and 7. Notice of the entry of this order shall be provided to all parties by the Plaintiffs. 8. In the case of Preliminary Objections [Local Rule 1028(a)], Motions for Judgment on Pleadings [Local Rule 1034(a)] and Motions for. Summary Judgment [Local Rule 1035(a)], parties shall follow the procedures for disposition set forth in those rules. Qs MYj n4 J /Z. Rano-JUL L./2 iy) -2- By the Court, Judge IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW CIVIL DIVISION and TRUST INVESTMENT GROUP, LLC G.D.: 11-3968 Plaintiffs, v. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, Defendants. c-: C) 2s cD CD RESPONSE TO MOTION TO COMPEL NOW COME Defendants Michael S. Glass, Margery Dana and DGK Properties, LP ("Defendants") by and through their undersigned counsel Buchanan Ingersoll & Rooney PC, and files the within Response to Motion to Compel Defendants' Appearance for Deposition and to Impose Sanctions ("Motion") and in support thereof, state as follows: 1. The Defendants' depositions, previously scheduled in this case, were rescheduled due to inclement weather as well as an unexpected surgery undergone by Mr. Glass on February 12, 2014. A note from Mr. Glass' doctor has been provided to Plaintiffs' counsel. (Motion, Ex. B). As a result of a lengthy surgical recovery, Mr. Glass was unable to travel to a deposition in this case in early 2014. 2. However, the relief sought in the Motion is moot, and the Motion is no longer needed, because the parties have scheduled the Defendants' depositions on June 26, 2014 at the offices of Plaintiffs' counsel. 3. Moreover, sanctions are not warranted in this case because the Defendants have cooperated in scheduling multiple depositions in this case. The circumstances have required those depositions to be rescheduled, but the Defendants have been and are still ready to move forward with the requested depositions in the upcoming weeks. 4. If the Court is not inclined to deny the motion at this time, Defendants respectfully request that this Court provide the parties with time to hold depositions in order to resolve the Motion consensually. WHEREFORE, Defendants respectfully request that the Motion is denied, together with such other and further relief as is just and proper. Respectfully submitted, Dated: June 11, 2014 BUCHANAN INGERSOLL & ROONEY PC By: 2 Tii'nothy P. Palmer, Pa. Id. No. 86165 Kelly M. Neal, Pa. Id. No. 306473 One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219 (T): 412-562-8800 (F): 412-562-1041 IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW CIVIL DIVISION and TRUST INVESTMENT GROUP, LLC G.D.: 11-3968 Plaintiffs, v. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES Defendants. ORDER AND NOW, this day of , 2014, upon the Plaintiff's Motion to Compel Defendants' Appearance for Depositions and to Impose Sanctions ("Motion"), and upon the response of the Defendants' thereto, it is hereby ORDERED that the Motion is DENIED. BY THE COURT: IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. MCNEW CIVIL DIVISION and TRUST INVESTMENT GROUP, LLC G.D.: 11-3968 Plaintiffs, v. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES Defendants. CERTIFICATE OF SERVICE I, hereby certify that on June 11, 2014, I caused a true and correct copy of the Defendants' Response to Motion to Compel Defendants' Appearance for Deposition and to Impose Sanctions to be served upon the persons listed below via U.S. Mail and electronic mail: James Stein, Esq. Dick, Stein, Schemel, Wine & Frey LLP 119 East Baltimore Street Greencastle, Pennsylvania 17225 Kelly M. Neal IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA- CUMBERLAND COUNTY ALBERT L. KIRKNER, BRIAN C. McNEW • Civil Action - Law 3 =� and TRUST INVESTMENT GROUP, LLC, rn cc) zip • y Plaintiffs CP v. • No. 11-3968 Civil I<CD • MICHAEL S. GLASS, MARGERY DANA w..., and DGK PROPERTIES, LP, : Defendants : Honorable M.L. Ebert, Jr. MOTION TO DISCONTINUE HEARING COME NOW the above named Plaintiffs,by and through their undersigned attorney,and for their Motion to Discontinue Hearing on Motion to Compel state to the Court as follows: 1. The Plaintiffs had previously filed a Motion to Compel the Defendants' deposition in the above captioned matter. 2. The Court set a hearing on the Motion to Compel for August 11, 2014. 3. The depositions have since occurred and there is no longer need for the hearing. 4. Undersigned counsel has discussed with Defendants'counsel the need to file this Motion, and Defendants' counsel concurs that the hearing should be cancelled. WHEREFORE,the Plaintiffs respectfully request that the Court discontinue the hearing on the Motion to Compel originally scheduled for August 11, 2014. Respectfully submitted, Date: -7/74/ James M. Stein, Attorney for Plaintiffs Dick, Stein, Schemel, Wine & Frey LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 Pa. Bar No. 84026 VERIFICATION I verify that the statements made in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S., Section 4904, relating to unsworn falsification to authorities. Date: ///// ovy41.rk.A.0 • James M. Stein, Attorney for Plaintiffs PROOF OF SERVICE I HEREBY VERIFY that I have served the foregoing document upon counsel of record by depositing one (1) true and correct copy thereof in the United States Mail, postage prepaid, addressed as follows: Kelly M. (Ariosto) Neal, Esquire Timothy P. Palmer, Esquire Buchanan, Ingersoll& Rooney, PC One Oxford Centre 301 Grant Street, 20' Floor Pittsburgh, PA 15219-1410 Date: V7pr C1444.1..z) . James M. Stein, Attorney for Plaintiffs -2- IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY ALBERT L. KIRKNER, BRIAN C. McNEW and TRUST INVESTMENT GROUP, LLC, Plaintiffs v. MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Civil Action - Law No. 11-3968 Civil Honorable M.L. Ebert, Jr. ORDER OF COURT ll NOW on this % % day of V 0.s. [ , 2014, the Court, having reviewed the foregoing Motion to Discontinue Hearing and being fully advised in the premises, FINDS that the requested relief is appropriate. The Court therefore ORDERS that hearing regarding Plaintiff s Motion to Compel scheduled to take place on August 11, 2014 is hereby cancelled. By the Court, DD stribution: ./James M. Stein, Esquire lly M. Neal, Esquire SES nzb.i LamC $ «//v M CID rn cam' > fi=C`) zo —4 cD IN THE COURT OF COMMON PLEAS OF THE 39' JUDICIAL DISTRICT OF PENNSYLVANIA — CUMBERLAND COUNTY BRANCH ALBERT L. KIRKNER, BRIAN C. McNEW and TRUST INVESTMENT GROUP, LLC, Plaintiffs Civil Action - Law v. No. 11-3968 Civil MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants (; Honorable M.L. Ebert, Jr: (--) NOTICE TO PLEAD To: Michael S. Glass, Margery Dana and DGK Properties, LP You are hereby notified to plead to the enclosed Motion for Summary Judgment within thirty (30) days from service on you as required by Pa. R.C.P. 1035.3(a), or judgment may be entered against you. Date: 12 - 1 Respectfully submitted, .)0,v,to S42,', James M. Stein, Attorney for Plaintiffs Dick, Stein, Schemel, Wine & Frey, LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 PA Bar No. 84026 IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA - CUMBERLAND COUNTY ALBERT L. KIRKNER, BRIAN C. McNEW and TRUST INVESTMENT GROUP, LLC, Plaintiffs Civil Action - Law v. No. 11-3968 Civil MICHAEL S. GLASS, MARGERY DANA and DGK PROPERTIES, LP, Defendants Honorable M.L. Ebert, Jr. MOTION FOR SUMMARY JUDGMENT COME NOW the above named Plaintiffs, by and through their undersigned attorney, and for their Motion for Summary Judgment state to the Court as follows: 1. Plaintiffs filed a Complaint in the matter on April 29, 2011. 2. The Defendants filed an Answer and New Matter on approximately July 6, 2012. 3. Plaintiffs filed an Answer to New Matter on August 14, 2012. 4. The Defendants then filed an Amended New Matter and Counterclaims on February 5, 2014. 5. The Plaintiffs filed an Answer to the Defendants' New Matter and Counterclaims on March 11, 2014. 6. Discovery is complete and the pleadings are now closed. 7. In their pleadings, and in the deposition of Defendant Michael Glass, Defendants Michael Glass and DGK Properties have either admitted, or failed to deny various facts which entitle the Plaintiffs to Summary Judgment in this matter. 8. Those facts are as follows: A. The Defendants admit that they have not made all the payments required of them by the Mortgage Note dated November 3, 2009. Defendants' Answer, paragraph 8. B. In his deposition on June 26, 2014, Defendant Glass admitted that he signed the November 3, 2009 Mortgage Note on behalf of Defendant DGK Properties, LP. Glass Deposition, pp 22, L. 22. C. Defendant Glass also admits that he signed the Mortgage. Glass Deposition, p 23, L 2-12. D. Defendant Glass also admits that Defendant DGK defaulted on the 2009 Note. Glass Deposition, p. 49 L 13-16. E. On November 3, 2009, Defendant Glass signed a personal guarantee of the 2009 Mortgage and Note. A copy of said Guarantee is attached to the Complaint as Exhibit B. The Defendants do not deny that Defendant Glass signed the 2009 Guaranty. F. The Defendants have defaulted on their obligations under the Mortgage and Note by failing to make payments since June 2010. G. The amount owed based on the default is $1,650,000.00 in principal and $485,143.00 in interest. Deposition of Albert Kirkner, June 25, 2014, p 71 LL 20-24. 9. Based on all of the facts established above, Plaintiff's Albert Kirkner and Brian McNew are entitled to judgment against Defendants Michael Glass and DGK Properties, LP. -2- WHEREFORE, Plaintiffs Albert Kirkner and Brian McNew respectfully request that the Court enter Summary Judgment in their favor and against Defendants Michael Glass and DGK Properties, LP in the amount of $2,135,143.00 plus court costs and reasonable attorney fees, along with such other relief as the Court deems just and equitable in the premises. Date: Respectfully submitted, s±,, James M. Stein, Attorney for Plaintiffs Dick, Stein, Schemel, Wine & Frey LLP 13 West Main Street, Suite 210 Waynesboro, Pennsylvania 17268 (717) 762-1160 Pa. Bar No. 84026 PROOF OF SERVICE I HEREBY VERIFY that I have served the foregoing document upon counsel of record by depositing one (1) true and correct copy thereof in the United States Mail, postage prepaid, addressed as follows: Date: 12 -18 -1 y Kelly M. (Ariosto) Neal, Esquire Timothy P. Palmer, Esquire Buchanan, Ingersoll & Rooney, PC One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219-1410 -3- James M. Stein, Attorney for Plaintiffs