HomeMy WebLinkAbout12-6980=;~.ECI-Q~= FxC;c
~.r~ THE F'ROTHuhdt~7r~r~~;{
David R. Galloway ~~~~ key ~ ~ ~~ ~. Counsel for Plaintiff
Attorney I.D. No. 87326 ~ ~
54 E. Main Street CUMBERLAND COU1~7}'
Mechanicsburg, PA 17055 PENNSYLVANIA
Telephone: (717) 697-4650
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO.,
Plaintiff
v.
H J TOWING & RECOVERY, INC.,
a/k/a H & J, a Corporation, and
JAKE RICHCREEK, Individually,
Defendants
CIVIL ACTION--LAW
DOCKET NO:-- ~ ~ S
NOTICE TO DEFEND
G~~~
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 an 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.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
1-800-990-9108
717-249-3166
~~a8sisa
David R. Galloway Counsel for Plaintiff
Attorney I.D. No. 87326
54 E. Main Street
Mechanicsburg, PA 17055
Telephone: (717) 697-4650
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO., )
Plaintiff )
v. )
H J TOWING & RECOVERY, INC., )
a/k/a H & J, a Corporation, and )
JAKE RICHCREEK, Individually, )
Defendants )
COMPLAINT
CIVIL ACTION--LAW
DOCKET NO:--
AND NOW, comes Plaintiff, by and through its attorney, David R. Galloway, Esquire,
and files this Complaint and in support avers as follows:
1. Plaintiff Progressive Service Die Co. is a foreign corporation registered with the
Pennsylvania Department of State with a primary place of business of 217 White Street,
Jacksonville, North Carolina, 28546.
2. Defendant, H J Towing & Recovery, Inc., a/k/a H & J, a corporation, is a
Pennsylvania corporation with a primary place of business of 34 Richcreek Ridge Lane,
Landisburg, Pennsylvania, 17040.
3. Defendant, Jake Richcreek, is an adult individual with a mailing address of 34
Richcreek Ridge Lane, Landisburg, Pennsylvania, 17040.
4. On or about July 15, 2009, Plaintiff and Defendants executed athree-year lease
agreement with an option to purchase (hereinafter the "Lease"), for a parcel of land, together
with a building and other improvements, located at #1 Taylor Blvd., New Kingstown,
Cumberland County Pennsylvania (hereinafter the "Premises"); a copy of the Lease is attached
hereto as Exhibit "A."
5. The Lease required Defendants to pay to Plaintiff $4,000 per calendar month
beginning July 15, 2009.
6. Shortly thereafter, the parties modified the Lease to change the Lease start date to
September 1, 2009, to change the payment date from the 15`~ to the ls` day of each month and to
reduce the monthly rent to $2,800.
7. Defendants' last payment in the amount of $5,000 was received by Plaintiff on or
about September 9, 2010.
COUNT I -EJECTMENT
8. Paragraphs 1-7 inclusive are incorporated herein by reference as though set forth
at length.
9. On or about August 31, 2012, as a result of Defendant's failure to pay rent and
pursuant to the Lease, Plaintiff served Defendant with a written notice of default and demanded
Defendant vacate the Premises and promptly remit all past-due rent. A copy of the August 31,
2012, letter is attached hereto as Exhibit "B."
10. Defendants breached the express and implied conditions of the Lease by failing to
pay rent, by failing to vacate the Premises when instructed and by failing to carry the requisite
insurance on the Premises.
11. As of the date of this Complaint, Defendant has refused to vacate the Premises
and to remit the past-due amount.
WHEREFORE, Plaintiff requests this Honorable Court enter judgment in favor of
Plaintiff and against Defendants for possession of the Premises, which includes a parcel of land,
together with a building and other improvements, located at #1 Taylor Blvd., New Kingstown,
Cumberland County Pennsylvania.
COUNT II -LOSS OF RENTAL INCOME
12. Paragraphs 1-11 inclusive are incorporated herein by reference as though set forth
at length.
13. Defendant owes Plaintiff $85,300 for rent through August 31, 2012.
14. Pursuant to Paragraph 17.A of the Lease, rent is accruing at $4,200 per month
until Defendant vacates the Premises; the accrued rent from September 1, 2012, through
November 1, 2012, is $12,600.
15. Paragraph 16.G of the Lease grants Plaintiff reasonable attorneys' fees which
Plaintiff has calculated to be $14,685 (15% of the principal balance).
16. Plaintiff fulfilled, performed and complied with all obligations and conditions the
Lease.
WHEREFORE, Plaintiff respectfully requests this Honorable Court return possession of
the Premises to Plaintiff and enter Judgment in favor of Plaintiff and against Defendant in the
amount of $97,900, plus attorneys' fees in the amount of $14,685 for a total judgment of
$112,585, plus costs of this action, and any other relief as this Court deems just and reasonable.
Respectfully submitted,
David R. Gallow~ #87326
Counsel for Plai iff
EXHIBIT "A"
.,, STATE G1f: PENNSYLVANIA
CAUt+IIY' VF ~UMBERL,AND
THi8 AGiREEMENT is coeds and entered Into by ProSressive Service : Co„ and H & .l A
Corporation, hersinarier referred to es'Tsnant'.
Landlord is the owner of a parosl at land, toi{ether with a bulidin~ rs; :oher improvements,
located at A11 Taytar 91vd„ Nsw Kingstown, Penneyhrsnls,
ixndlord and Tenant have naKotiated a transaotton by whtoh Landis shall leave the
Demised Premis~, to Tamtnt. Tenant shat! ooaupy the Detrtised Premises fr ~,r, aperatlat at a
truck and auto ropair fsalNty.
I.ANDt.ORD, FOR AND iN CONiiiDEtiATION of fife aovsnattti herelnaf: uantaMsd and made
on part of the Tenant, doss hereby convey and lease to Tenarrt, snd Tenant ~ ~s herby hke end
lease from landlord, the Premises herein desorlbed, sukrlsot to the terms, c. Hants and aandkfana
herevt.
i. PREMi$ts3. The `Promkes` includes aft of the property dlao~ased 1n Pars,
Inciualve:
3,.A. DEMISED PREM~EB. Landlord ~nnts to Tenant the use of than
mare pattloufariy daarlbed on a sketch attaal>dM hereto, marked Fachtbit'A'
by reference. The street address of the Demised Premises is Aft Taylor Blvd.
Pennsylvania.
~..a. APPURTENANT PREMISE6. lsndiord further ~raMs TeMnt the
baneflt of ail eeaements or other rt~ttts appurtenant ZQ the Gemised Rremis.
itntited to ap driveways, approaches, and {ndne and aYress to snd from ab~~
strerq, or tarns, whether pubtio ar private, to the Detnissd Pr~mMss.
i.C. IMPROVEMENTS. Lbndiard turther~ants Tenant the use and b~:
other improvettwnts (ifie'improtroments'y aanstruoted upon Ste Dembed P,
Improvements strap be deemed to Include but not be limited to ~/3 of the 1',
Premises, all its meohanioat, sleatrtaal, plumbtnl~, heeitlt~, aooll+~, snd vans
parkit~tlt Mt, service areas, parklrt~ tot Il~ht{tu end ail roster and servtae Ilnss
tetephons tines, and aanltary and storm sewer mama end Ilnse necessary f~;
Truck and Auta Repair Faaliity.
2. COVENANT OF TiTt.E, P088t:SStON, AND QUIET ENJOYMENT. Utndtord we
that landlord Is wall salxed of and ha: msrketabte title to the tJemised i+rei
ail flans, enaumbrehces, aesemems snd restrfatlons save snd except a deo~
principal amount of a6~.,i0i3,000.00, rsstrtativs oovensr-ts and Yenersl utitit:
landlord aovenarrts to defend the title thereto, aEsinst any and sp Itabilhl®e
expenses {tnaludir~ but not Nmlted to attorney's teeny vrhkdt Tenant tray sui
encumtxenoa, restrlctton ar defeat in the title or desorlptlan of the gemtsgc:
phs 1.A. throu@h 1.C.
arcel of latui vvhlch k
_i incorporated heroin
.sw KinA{stown,
,nt of use, aocea +snd
inotudttt~ but not
~d hl~hways, roads,
~Yt of the buikitng and
uses. The
iltt~ on the Demisad
:.Ion systems, the
eoMca! and
.e operation at the
nts and covenants
es, tree and aiear of
trust to the artElnai
~rsements of -ecord.
sots, damsW+s and
Ley reason of any lien,
ifYliaee.
If as a rasutt of any lien, enauhtbranae, easement, restrlotion or utr; ieteat M tltts,l'enant
is unable to continue the quiet en)oyment and ootrtinuous posseeslan of thf~ lira gemleod
>~remises, then Tenant shall have the option to Lsrminste thk ieaee end ail ~~ uhap cease as of rho
date cf notice of termination.
,_. ~~ ;~~~ ~r
~. LEASE TIsRM AND TERMINATION. The'trease Tsrtn'shati aammenve on`:i --frfr,-2tldil 4nd rhali
ear~tinue, until terntlnnted in acaordenoe with the prrnrisiar~s hereirsaftsr s~~ 'rh for three (3}yaers.
^~r
.. !
~. RENT. tenant shall pay to landtvrd by the fifteenth 4k9e) day of saoh mcs
the Lease-Term ae rental for the pembed Premtea the ssrtys of four Thawe~
calendar month (the 'Rent'), or prolate thereof for arty partial aaiendar moat:
8. P~e'iONAL PROPERTY TAXES. Tinarrt agrees to pay ail persona! property
and other psraortst property of Tenant.
6. UTiLiTiE8 AND St:R111CE8. Durind the t.eaaa Term, Tenant a addlttortai rr
psroentade share for all water- tool, ,Eas, ail, heat, efeatriolty, power, taNpha~
servlrtes which maybe fumished to or utt8sed on the Demised Pramiae,
7. REPAIRS. The Tenant shalt, rrt !ts aole coot and expes+se, fallawirsx the ao~
lease Tam rrsstl contlnutrrd thereafter durind the Leave Tarns, keep the lmp~
interior asM extariar, trtausYnd the drasssd area, on the Dssntsed PrerrNsss !~
repair as tttay an at the date of the comtttenamast of t!a Less Toren, exc.
an tear, dantade by aoaldsttsGat firs or other Mt-uured cawtly- a datmye.trau
and/ar wttltu! aa!(s) of Landlord, its adrttits or emptayess. It is undsr.~taad an
has no rrsaMtenance nor repair ablidatlans.
8.1NSUw-NCE.
EA AEdtN~ER7Y lNiaURANCE~6EMHiED PRteMlSt97f. Dttrlnd rho Lease
carry fire and extended aaverade tnsuranas on the l~nb from time
I~emtsed irs'assisee In the amount deemed necessary by Landlord, M Landio
,'Properly tnsunnos').
B.t3. LiABtLlTY i11i8URAAICE-DEMISED PRE'i~$pS. Durlttd tns L~ee~se 1~c
:oir: exprnss, ahaN proaws and keep in eftect Comrrserelal tietserai LlabNlty
havtnd INnlts of Ilabliity of LINE MiLUON ANO NQ/3.00 DOtIAFtS (i1,Od0,00:.
lrsattranoe7.
S.C. CEttYtFtCATE OF tiViffiURANC'E. Tenant shah tumish Landlord wltP.
lrrauranse tar loch L#rdsl#ty lrssurarscs, Wombed Lartdlard a an addittasat Ina
Llabttlty irteuranae. Such oerttfloab shah set fot#h the looatfas ai the Demts~:
aomparltes, oasrsra~s, policy nurnbsr, poitay pabd and Nrrtlbtf of NabHKy. Sai.
provide that to the event of aanaNatton ar matsrfM chastds bs the aowerage
(30) days prior written natiso wilt bs dhron to MI parties Warned M the pobcy.
S.Q. WAVER OF SUSROf3ATi0N. tat>dfvrd and Tenant vaMs hereby
arty and all lfabillty ar rasponslbiltty #o the other, or to anyone olaimind thro«~
of subreftatian or otherwMe, far any toss or damads to property oauesd by t:
the extent of any Insurance oaverade wen it such firo or other arstatity shat:
xhs tacit or nsditdence of the other party ar of anyass tar wham auah party .
provkied: however, this release shall fbs appifoable and In taros and ettea~t ot:
damads ooaurrind durind such time Ira the relsassr's pohCies shag catsprtn t
that any such release shah not adversely affect or impair aafd policies or ~S-•r
releaser to recover hereunder.
~, In rrdvassoe, durlnd
{r~4r000,QQ}.par
~ ~'caU ~, -~ ~ !~c'?,ri a
es an any sgarpmrnY ~~'i r~C•.. .
T~~~ ~~. ~t~..4
shah pay Fria ~P r1. .?ir r{' I
materials, and other ~ ~ ~'T" ~K,
~l,rl+~clc~»t.~~
>arsoernent o~[ the ~~ 3 ~~' 7 . i .
ahtante and drounds, t c•, ~4~ c k
a dpod order and /{~ ~z ~r.eo#-„7.
rind raaspr~M wear
~ b~- tha n~/anae ~ F ivct ~
;greed that landlarrd !
GVc:.~ u.'~ # ~
,t(E` L~ t •G~ ~ r r
m,Lartdiordelsail ~;,r~~•rc y ~~~,~
rims eltussted on the
Bohr dharet3as, L `'~"~`~. • .t.
~~ ~'lwC~t}r~~''+..
~, Tersant, n Tenant's
trance swirls oowrade ~ ~ « ; j ~ ~ .
.d) (ths't.t•bittty
~erltflleNte o! t
:d wigs redrrrd two the
,aralrllaM, tsnwtnd S
~attlMoslsr slsaN abo ,
svtded, at teaat thirty a
•ass- tits other from
,r under them by wsy I
:r atfier oauaity to
:zvs beM caused by ~
Y be responsitKe, ~
:vitls reapact to loss or ~
ausa or endorasrnsnt j
:rice the ridht of the
9.A T07AL CANDEMNATION. It the wtsote at the Premises h aossdet r : d ar tats~t br any
pubNa or quaraF~pulrtic use srnder any statute or by t1dM of emirrarst domain, c. yy pthrate purshase In
lieu tttaroat, than this Lease eltall autorrsattcaity tertrtinatea~k~ the term hat ~ /rarsbd sfartt cease
on the day prior to the taWnd at poesissbn by such rnstlsarity ar the veethsE . file M such authority,
whichever first oaattra, arnd the rent hsreunda shah be pppottlosted and ptrtr ,acid date.
9.5.OGNDEMNATIQN • AWARD 0'F DAMADE8 ANQ CDMPENB/1TIOP: If compsnsatich l
awardrd oz paid upon a total ar partial taWrtd of the Derrsised Prembes shy; eiond to curd ba the
property of the landlord without any particlprrtian by the Tsmxtt. tfowever, . sled aarrtalned herein ¢
shalt be construed to preetuds the Tenant hom pry a»y otalm direr; :sgabsat the
aortdemning suthorhty In such eandemnatlan proaeedlnd for loss of btrslrte ~ : aprroiatian, to '
darnade to, ricer of removal at, or the r-atus of stook, trade ilxtuna, fumlt~: • :td other psraonrri
property belondirsd to tits Tenant, and loss or damade sustNstsd try Tensrn~ • .rte suit at rosy
aiterastona, modlifcations, or repairs whtah may be reasot~bty regr,rired ofi ~ ant In ardor tc place
t
t
f
STATE OF PENNSYLVANIA
COUNTY OF CUMBERLAND
~ ASE~,~CREEMENT (the 'Lease'1
THIS AGREEMENT is made and entered into by Progressive Service Die Co., and H & J A
Corporation, hereinafter referred to as 'Tenant'.
PRELIMINARY STAT ENT
Landlord is the owner of a parcel of land, together with a building and other improvements,
located at #1 Taylor Blvd., New Kingstown, Pennsylvania.
Landlord and Tenant have negotiated a transaction by which Landlord shall lease the
Demised Premises, to Tenant. Tenant shall occupy the Demised Premises for the operation of a truck
and auto repair facility.
LANDLORD, FOR AND IN CONSIDERATION of the covenants hereinafter contained and made
on part of the Tenant, does hereby convey and lease to Tenant, and Tenant does hereby take and
lease from Landlord, the Premises herein described, subject to the berms, covenants and conditions
hereof.
1, PREMISES. The 'Premises' includes all of the property discussed in Paragraphs 1.A. through 1.C.
inclusive:
Z.A. DEMISED PREMISES. Landlord grants to Tenant the use of that parcel of land which is
more particularly described on a sketch attached hereto, marked Exhibit 'A' and incorporated herein
by reference. The street address of the Demised Premises is #1 Taylor Blvd., New Kin town,
Pennsylvania.
1.6. APPURTENANT PREMISES. Landlord further grants Tenant the right of use, access and
benefit of aH easements or other rights appurtenant to the Demised Premises, including but not
limited to all driveways, approaches, and ingrss and egress t'D and from abutting highways, roads,
streets, or lanes, whether public or private, to the Demised Premises.
1.C. IMPROVEMENTS. Landlord further grants Tenant the use and benefit ofthe buildingand
other improvements (the 'improvements')constructed upon the Demised Premises. The
Improvements shall be deemed to include but not be limited to 1/3 of the building on the Demised
Premises, all its mechanioal, electrical, plumbing, heating cooling, and ventilation systems, the
parking lot, service areas, parking lot lighting and all water and service lines, electrioal and telephone
lines, and sanitary and storm sewer mains and lines necessary for the operation of the Truck and Auto
Repair Facility.
2. COVENANT OF TITLE, POSSESSION, AN D QUIET ENJOYMENT. Landlord warrants and covenants that
Landlord is well seized of and has marketable title to the Demised Premises, free and clear of all liens,
encumbrances, easements and restrictions save and except a deed of trust in the original principal
amount of $1,100,000.00, restrictive covenants and general utility easements of record. Landlord
covenants tc defend the title thereto, against any and all liabilities, costs, damages and expenses
(including but not limited to attorney's fees) which Tenant may suffer by reason of any lien,
encumbrance, restriction or defect in the title or description of the Demised Premises.
If as a result of any lien, encumbrance, easement, restriction or other defect in title, Tenant is
unable to continue the quiet enjoyment and continuous possession of the entire Demised Premises,
then Tenant shall have the option to terminate this Lease and all rent shall cease as of the dabs of
notice of termination.
3. LEASE TERM AND TERMINATION. The 'Lease Term' shall commence on July 15, 2009 and shall
continue, until terminated in accordance with the provisions hereinafter set forth for three (3) years.
4. RENT. Tenant shall pay to Landlord by the fifteenth {15~) day of each month, in advance, during
the Lease Term as rental for the Demised Premises the sum of Four Thousand {$4,000.00) per
calendar month {the 'Rent'), or prorate thereof for any partial calendar month.
5. PERSONAL PROPERTY TAXES. Tenant agrees to pay all personal property taxes on any equipment
and other personal property of Tenant.
6. UTtUTIES AND SERVICES. During the Lease Term, Tenant as additional rent shall pay his
percentage share for all water, fuel, gas, oil, heat, electricity, power, telephone, materials, and other
services which may be furnished to or utilized on the Demised Premise.
7. REPAIRS. The Tenant shall, at its sole cost and expense, following the commencement of the Lease
Term and continuing thereafter during the Lease Term, keep the Improvements and grounds, interior
and exterior, includingthe grassed area, on the Demised Prem~es in as good order and repair as they
are at the date of the commencement of the Lease Term, excepting reasonable wear an tear, damage
by accidental firs or other Insured casualty, or damage caused try the negligence and/or willful acts)
of Landlord, its agents or employees. It is understood and agreed that Landlord has no maintenance
nor repair obligations.
8. INSURANCE.
B.A. PROPERTY INSURANCE-SEMISED PREMISES. During the Lease Term, tenant shall carry
hazard insurance on the Building, improvements and personal property situated on the Demised
Premises in the amount deemed necessary by Landlord, ('Property Insurance').
8.B. LIABILITY INSURANCE DEMISED PREMISES. During the Lease Term, Tenant, at Tenant's
sole expense, shall procure and keep in effect Commercial General Uabtllry Insurance with coverage
having limits of liability of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00)per occurrenoeand
$2,000,000 general aggregate (the 'Liability Insurance').
8.C. CERTIFICATE OF INSURANCE. Tenant shall furnish Landlord with a Certificate of
Insurance for such Uability Insurance, naming landlord as an additional insured with regard to the
Liability insurance. Such certificate shalt set forth the location of the Demised Premises, insuring
companies, coverage, policy number, policy period and limits of liability. Said Certificate shall also
provide that in the event of cancellation or material change in the coverage provided, at least thirty
(30) days prior written notice will be given to all parties named in the policy.
8.D. WAIVER OF SUBROGATION. Landlord and Tenant each hereby release the other from any
and all liability or responsibility to the other, or to anyone claiming through or under them by way of
subrogation or othervvise, for any foss or damage to property caused by fire or other casualty to the
extent of any insurance coverage even if such fire or other casualty shall have been caused by the
fault or negligence of the other party or of anyone for whom such party may be responsl~e, provided,
however, this release shall be applicable and in force and effect only with respect to loss or damage
occurring during such time as the releaser's policies shall contain a clause or endorsement that any
such release shall not adversely affect or impair said policies or prejudice the right of the releaser to
recover hereunder.
9.A. TOTAL CONDEMNATION. If the whole of the Premises is condemned or taken for any
public orquasi-public use under any statute or by right of eminent domain, or by private purchase in
lieu thereof, then this Lease shall automatically terminate and the term hereby granted shall ease on
the day prior to the taking of possession by such authority or the vesting of title in such authority,
whichever first occurs, and the rent hereunder shall be apportioned and paid to said date.
9.B. CONDEMNATION -AWARD OF DAMAGES AND COMPENSATION. All compensation
awarded or paid upon a total or partial taking of the Demised Premises shall belong to and be the
property of the Landlord without any participation by the Tenant. However, nothing contained herein
shall be construed to preclude the Tenant from prosecutingany claim directly againstthe condemning
authority in such condemnation proceeding for loss of business, depreciation, to damage to, clost of
removal of, or the value of stock, trade fixtures, furniture and other personal property belonging to the
Tenant, and loss or damage sustained by Tenant as the result of any alterations, modifications, or
repairs which may be reasonably required of Tenant in order to place the remaining portion of the'
Demised Premises not so condemned in a suitable condition for Tenant's further occupancy. No such
claim of Tenant shall diminish or otherwise adversely affect the Landlord's award or the award of any
fee mortgagee.
10. ALTERATIONS. Tenant shall not be entitled to make any interior or exterior, (not including
structural) alterations, additions or improvements ('Alterations') in or on the Demised Premises
without the prior written consent of Landlord. Any Alterations, when complete, shall not adversely
affect the structural integrity or diminish the value of the Improvements. At least ten (10) days prior to
the making of any such Alterations, (not inoluding interior alterations for which the oost does not
exceed $500.00). Tenant shall notify Landlord of the date upon which such alternations shall
commence in order to permit Landlord to post a notice of non-responsibility, if desired. Tenant shall
make all such Alternations in a good and workmanlike manner and in accordance with all valid
requirements of municipal or other governmental authorities. All Alterations shall be made at the sole
cost and expense of Tenant. Ali Alterations which many be made or installed by either Landlord or
Tenant upon or in the Demised Premises (not including Tenant's trade fixtures, machinery, furniture or
equipment) shall be the property of Landlord and shall remain upon and be surrendered with the
Demised Premises as pert thereof without disturbance, molestation or injury at the termination of the
Lease, whether by lapse of time or otherwise, all without compensation or credit to Tenant.
11. MECHANICS AND UTILITIES LIENS. Tenant shalt keep the Demised Premises free and clear of any
lien or encumbrance arising out of work performed, materials furnished or obligations incurred in
connection with Tenant's obligations for utilities, services, repairs, or alterations under this Lease. In
the event any lien is placed upon the Demised Premises as a result of any act or omission of Tenant,
Tenant shall pay such lien or may provide a bond or otherwise insure Landlord againstsuch lien within
fortyfive (45) days after notice to Tenant of such Ifen being perfected, and may thereafter contest
such lien or payment at Tenant's sole cost and expense,
12. TRADE FIXTURES, MACHINERY AND EQUIPMENT. Landlord acknowledges and agreesthatall trade
fixtures, machinery, equipment, furniture, signs or other personal property (hereinafter refen-ed to
collectively as the 'Equipment') of whatever kind and nature initially installed or affixed and thereafter
kept or installed on the Demised Premises by Tenant, shall not become the property o'f Landlord or a
part of the realty no matter haw affixed to the Demised Premises, and may be removed by Tenant, in
its discretion, at any time and from time to time, during the entire Lease Term, Tenant agrees to
restore the Premises to a condition as similar to the previously existing condition as possible following
the removal of any such Equipment.
13. DEFAULT. (a) I n the event the Tenant shall (i) fail to pay the monthly rental payments as and when
same shall become due and such failure shall continue for period often (10) days after written notice
thereof from Landlord to Tenant, or (ii) defaults in the performance of any other terms, covenants or
conditions of this Lase, and such other default shall continue for thirty (30) days after written notice
thereof to Tenant by Landlord, or (iii) if Tenant abandons or vacates the Demised Premises, or (iv) if
Tenant shall become insolvent, make a transfer in fraud of its creditors, fife a petition or answer
seeking reorganization or arrangements under the federal bankruptcy, then in either such event
Landlord may, in addition to any other rights or remedies it may have, including the right to recover
lost rent, elect to declare the Lease forfeited and proceed to recover possession of the Premises and
take possession of the same, together with ail buildings and improvements thereon.
(b) Notwithstanding default by Tenant in performance Of its obligations under this Lease, this
Lease shall continue in effect for so long as Landlord does not terminate Tenant's right to possession;
and Landlord may enforce all Landlord's rights and remedies under the Lease, inoluding Landlord's
right to recover the rent as it becomes due under the Lease. in the event Tenant abandons the
Demised Premises, Landlord shall attempt to mitigate its damages by makings reasonable effort to
re-let the premises and reduce its actual damages and Tenant shall be responsible for the difference
between the rent due under this Lease and the rent received from the new Tenant. Efforts by Landlord
to mitigate the damages caused by t'enant's defauitdo notwaive Landlord's rightto recover damages
under this paragraph otherwise.
14. INSOLVENCY. If any proceedings in bankruptcy or insolvency are flied against Tenant or if any writ
of attachment or writ of execution is levied upon the interest herein of Tenant, and such proceedings
or levy shall not be release or dismissed within ninety (90) days thereafter, or if any sale of the
leasehold interest hereby created or any part thereof should be made under any execution or other
judicial process, or if Tenant shall make any assignment for the benefit of creditors or shall volu-'ttarlly
institute bankruptcy or insolvency proce~ings, the Landlord, at Landlord's sole election, may re-enter
and take possession of said premises and remove all person there from and may, at Landlord's
option, terminate this Lease.
15. ASSIGNMENT AND SU&LETTiNG. The Tenant shall not assign, transfer its rights, title and interest
in or subletthe whole or any part of the Premises without prior written consent of landlord, which
consent may be withheld, or conditioned, in Landlord's so{e discretion. No subletting by the Tenant
shall affectthe obli~tion of the Tenant to perform all of the covenants required to be performed by
the Tenant under the terms of this Lease. No assignment shall operate to relieve the assigning party
of any obligation or liability arising under the farms of this Lease unless the other party here tD shall
specifically agree in writing that such proposed assignment shall so release the assigning party.
16. MISCELLANEOUS PROVISIONS.
16.A. NEGOTIATIONS. The furnishing of this Lease farm by Landlord to a prospective Tenant
shall not be considered an offer to lease,.even though completed in every respect, unless and until the
document has been executed by the Landlord. No correspondence or other communication respecting
this Lease shall create any obligation to go forward with this Lease until the Lease document itself is
fully completed and signed by both Landlord and Tenant. Tenant represents that no changes have
been made by him or his agents to any lease page unless the change is clearly visible by
intierlineations, in which case it must be initialed by Landlord and at least one partner of Tenant.
16.B. SEVERABILITY. If any farm or provision of this Lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease,
or the application of such term or provision tp persons whose circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, but shall continue in full force
and effect as to all other terms and conditions to the full extent provided by law.
16.C. SUCCESSORS. The terms, conditions and covenants of this Lease shall be binding upon
and shall inure to the benefit of each of the partite hereto, their heirs, personal representatives,
successors, or assigns, and shall run with the land; and where more than one party shall be Landlord
under this Lease, the word Landlord whenever used in this Lease shall be deemed t include aEl such
parties jointly and severalty.
16.D. MODIFICATIONS OF AGREEMENT. No waivers, alterations or modifications of this Lease
or any agreements in connection therewith shall be valid unless in writing duty executed by both
landlord and Tenant herein. Any addenda or amendments th this Lease, including, but not limited to
the amendment fixing the term of this Lease, must be signed by one (1j partner of Tenant.
Z6.E. CAPTIONS. The captions appearing in this Lease are inserted only as a matter of
eonvenienoe and in no way define, limit, construe or describe the scope ar intent of such paragraphs
of this Lease or in anyway affect this Lease.
16.F. GENDER, ETC. Any gender used herein shall be deemed to refer to any other gender
more grammatically applicable to the party to whom such use of gender relates. The use of singular
herein shall be deemed to include the plural and, conversely, the plural shall be deemed th include the
singular.
16.G. ATTORNEY'S FEES. In the eventthat any tame duringthe LeaseTerm eitherthe landlord
or the Tenant shall institute any action or proc~edinga against the other relating to the provisions of
this Lease, or any default hereunder, then, and in that event, the unsuccessful party shat! reimburse
the successful party for all costs and expenses; including reasonable attorney's fees and
disbursements, incurred therein ny the successful party.
16.H. STATE LAW. This lease shall be construed under the laws of the State in which the
Premises is located.
16J. NOTICES. All notices to be given to the Tenant shall be in writingand delivered in one of
the following manners: {aj deposited in the United Stages mail, certified or registered, with postage
prepaid, (b) by a nationally recognized overnight delivery carrier, or (c) hand delivered and address to
Landlord at
Progressive Service Die Co.
Attn: Brian or George France
217 White Street
Jacksonville, NC 28546
17. THIS LEASE is subject to an 'Option to Buy' as attached.
Notices by Tenant to Landlord shall be in writing, and delivered in one of the fallowing manners: (a)
deposited in the United States Mail, certified or registered, with postage prepaid, (b) by a nationally
recognized overnight delivery carrier, or (c) hand delivered, and addressed to Landlord at:
Progressive Service Die Co.
Attn: Brian or George France
217 White Street
Jacksonville, NC 28546 .
Notices shall be deemed delivered two (2) days following deposit in the United States mail, one (1) day
following delivery to an overnight mail carrier or on the date of delivery, if hand delivered, as above
provided. Change of address by either party must be by written notice given to the other in the same
manner as above specified.
17.A. HOLDING OVER. in the event Tenant remains in possession of the Demised Premises
after the expiration or termination hereof, Tenant shall occupy the same as a tenant at will, subject to
all the terms hereof, insofar as the same may be applicable to such tenancies. Monthly rent during
any such holding over period shall be one hundred fifty percent (150.096) of the rental set forth in this
Lease.
18. INSPECTIONS. Landlord shall have the right, upon 24 hours notice, to inspectthe Demised
Premises.
IN TESTIMONY WHEREOF, the parties have caused this Lease to be executed by a
partner(s) or manager(s), with authority duly obtained, the day and year hereafter indicated.
OPTION TO PURCHASE AGREEMENT I-OR RTES®ENTLlL LitASE
'This Lease to Pttrc`haac Option Agt~eematt ("`Option to .Purchase AgreemeN"} is rnatlt an July 13, 2009 [tnottth, day, year]
bctwedt ProBresaive Service Die Co. (the "Soltadt~andlord") and _Hd~3A corporation (the "Huyer/Tenant").
WHEREAS, Selkr/Lartdlotd is the fee owner of oertaia real property being, tying and situated in Cumberlatd County, Pa.,
such teal property hiWing a street address of Jl l Taybr blvd. (the "Property").
'WHEREAS, Selkr/l.andlord and Bityee/Tettant have together exex•uted a prior lease agreement, the subject of which is the
afOi'dllCAt~OLI PUOl~erty (lire "Lease AgreetaOAt" ).
NOW, THEREFORE, for and in cou>&ideration of the vovenants and obligations oattaitted het+ciu and other geed and valuable
carteidemCion, tiro noels and sutRcieary of which is try acktwwledged, Selkr/Laadlord hetrby grants to Huycr/Tenanr an
exclusrvt ap110n t0 purchase the atbeelptltttalleGl "Property'" The parttest hereto het~y agree a8 follows:
!. OPTION TERM. The aptian to purchase period Cattttuettces on Jury IS, 2009 [tttonth, clay, year] and expires at 1 t,S9
PM Juiy ls, 2002 [mornh, day, yearj.
2, NOTICE REQOIRED T8 lE7KERCIStE OPTION. 'To exercise the Option to P1mchase, the Buyerl'i'enam must deliver
to the SetlearJi.arudlo~td written notice of Huyer/Tcmant's latent to purchase. IA. addition, the written notice moat specify a
valid cueing dale. Thor claiag dau roust ooatr before the original expiration date oJ' the Lease Agr~oemeta, ar the daft of
the expiration of the Option to Purchase Agraenreat designated in paragraph 1, whichever Decors later.
3. OPTION CONSIDERATION. As cansldoratiaut for this Option to Purchase Agroetgent, the Buyer/Tenant shall pay the
Shcer/L~adlard s ran-a+efgridable ibe of 5100, itioeipt of which is herdry ackao~wleriged by the 5etlar/Landiond. This
antomtt shall bt credited bo the putchare pricx at dosing if the Buycr/Tenant timely exercise: the
provided that the HuyerlTeautt: (e) is not in default of ibe Lease ~n to purchase,
~n3'• TAe Salkr shall not r+diuttd the fee if the Bu /Tenant defaultt the Leese the ~~ of the
Y~ grCetrrCnt, fails t0 Close #
the oaatv+eyartoo, Or otherwise does trot axesrdsc the option to purcchase..
~. PURCHASES PRICE. The total ptu+rfiase price far the Property is 51,250.000. Ptrwidod that the finyeY/TCnarn titncly
Cxectrles the gttioa to pw+cbaae, is not in default of the Lease A~gt+eemcnt, end Closes the oanveyancc of the Property, the
Seller/l.andlatd tdtsll ta+odit tawar~ the purchase price at closing the tauu of S 100 brow each tttotdhiy lease Psynteat that 1
the Ptn+er/Temwt ti:raely made. Howrv~er, the Buyer/Tenant shall receive no cmdit at closing for airy 7t~ottthty lease }
payment that the SrlEer/Landlard eeaeived after the due date specified in the i.eaa~e Agreettteun.
5. iEXCLUSIVITY' OF OPTION. This E)ption to Atrcbiase Agt+cemictu is exclusive surd trout-assignable and solely for
the betteilt of the etytrned patties above. Should BgyeelTenam attempt to astdga, oottvoy, ddegNe, or transfer this option to
purchase without the Satler/t.atdlaed's express written Permission, airy such attempt abet! be deemed mill std void.
b. CLOSING AND SBTTLEIIIENT. Sellet~i..andlotYl sttaaU determine tltc title eotapartyr at which saabameut s~b~ali otxor attd
shall ird'oran BtsyiprlTcrriatit of this lacatioui in wtititig. BuyerlTeriarn agrees that +eloesing oasts iii their entirety, including
~3' . ~. asd other charges required bq the third-Patty lender, shall be the sole lesponaibility of Buyer~retiant. 'The
oulEy expeme related W closing costs appordaned to Selier/I.andiotd shall be the prri-rated slwne of the ad valore~r» taxes
.due at the time of closiaE for which Stlbr/t.andlord is solely rbk.
7, FINANCING AVAILABILITY. ~1.LER1l.ANDx.ORD MAKES NO REPRESENTATIONS OR WARRANTIES AS
TO THE AVAQ.ABiLITY OF FINANCING REGAEtDING TFIIS OPTION TO PERCHASE. BUYEWI'!"sNAN1' IS
SOLELY RESPONSIBLE FOR 0H7'AIMNG FINANCING II3 ORDER TO BXERCiSE THIS OPTION.
tf_ RINANCING I11rSCI.AI1YIEli. The parties aclulawbdgie that it is intltoaeUle to predict the availability of obtaining
tlaanidng towaaEr the pueclmse of this Pra~Perty. Ubtairiing fitiattoing shall twt be held as $ oondidon of petfartaanoe of
this Option to Purchase Agneetnettt. The ptrties tb~ee agree that this Option to Purchase Agrxment is not catered into in
reliance upon say repteneatation or warratuy niacle by Dither party.
9. REMIEDIES UPON DEFAULT. if Bayerrl'enarn defaults under this Option tv l'hu~cltitse Agreetteeitt or the Lease
Agreenrettt, then is addirioat to arty other remedies available w Seller/Landlord at law or in equity. Seikr/1.~idiord utay
terminate thbr Optiout to Purchase by giving written riotire of the terminstioa. If teratieated, the BuyerlTeuant shall lose
emitlentenR ~ itny t+dVtnd of rent or option consideration. Per this Option to Purthase Agreett~ent to be enforceable and
Page 1 of 1
cD'active. the Boyer/Tenant r+nust comply with all terms and ounditi~s of the I.caae Agreement.
10. COMML'S3I0~1. No real estatc cornnsiasions or any other cxxixuuissiona shall be paid in connection with this transact,inn.
11, lItZCORDIING OF AGRE]~I~T. Huyar/'Tanant shall act record this Option to Purchase Agreppetu on the Public
Raoords of arty public oboe witheut the express and written oonaem of 5alietdl.andlord.
12. ACKxOwLICOGII[>gxTB. The part~e ate oxacui~ing this Option to Purchase Agrooraartt vohwtarily and without any
dtueas or mdse iadhteaoe. The parses have carefally r+cad this Option to pittcMac Agtaq~tt and have aslwd any
questieas needed to mtderstaod its terns, ~, and binding asset anrt fhlly utsdesrstasd them and hs!vc boon given
an exeattad Dopy. The pattias have aouglsk the advice of an attorney of their respective cl-oice if so deairgd prior to signing
this Option to PMtr~chre Agr~cemant.
i3. TIMItxG. TirttE is of the oseance in this Option to Putohast Agreement.
l4. GOVERNING ~LAw AND V>irNUE. This Optiat to Pnrchaee Agraentent ahau be govertsod, ootwntod std interprged
by, tltroagb aadttudCr dte Laws et'the state of Fa.. The parties further agree that the veane far say and au dispwas related
to this Option toI Purchase shall be Cnmba<laad Coorriy, Pa.dtJA
1 S. Oltrt'IOx TO It[JRC8ASIC CONTROLLING. Ia the event a coa~ict arises betwam the terms ant! conditions of tha
Laase A and the Option a4 Pntrhase Agroetaent, the Option to purchase Amt shall tel.
1G. ~xTlt>~ AG>ri~EM>r.NT; MODn~cATl[Ox. This docutuent seta forth the satire agraemast and uadaretanding
betvreen the pattla relating to the su~act tntttter hmmn and supanedes all prior between the parties. No
r~sodifkation of or atne.adtaarrt to this Qption to Putrlrsaa Ag~roe:aent, nor say waiver of say order this Optiat to
Purchase Ageerhertt, will ba effectiva unless is writing ~~ by ~ PAY ~ ~ chtr8ed.
LORD;
.~
sign: mint: ~/e'1,9 `~ ~, ;-~ /~i t r/~
s LAUD;
s~~_
~:
~: ~~~~~
sign: Print:
Page 2 of 2
~~ .
EXHIBIT "B"
DAVID R. GALLOWAY
Attorney at Law
54 E. Main St.
Mechanicsburg, PA 17055
Telephone: 717-697-4650 Facsimile: 717-697-9395
davidrgallowa~"asgmai Lcom
August 31, 2012
VIA CERTIFIED &
FIRST CLASS MAIL:
HJ Towing & Recovery, Inc.
Attn: Mr. Jake Richcreek
34 Richcreek Ridge Ln.
Landisburg, PA 17040
RE: Commercial Lease - #1 Taylor Bivd., New Kingstown, Pennsylvania
Our Client: Progressive Service Die Co.
Dear Mr. Richcreek,
Our office represents Progressive Service Die Company (hereinafter "Progressive"), the
landlord in the referenced commercial lease. Pursuant to the Lease Agreement signed by you on
July 15, 2009, (hereinafter "Agreement"), the lease expires today. If you have not vacated # 1
Taylor Blvd., New Kingstown, Pennsylvania (hereinafter "the Premises"), you will be
considered ahold-over tenant pursuant to Paragraph 17.A of the Agreement.
Additionally, we enclose an Invoice dated August 30, 2012, itemizing the rent payments
made and the rent that is past due. Please make a check payable for $85,300 payable to
Progressive Service Die Company and remit to Progressive at the address shown on the Invoice
within ten (10) days from the receipt of this letter. This letter serves as notice of your default
pursuant to Paragraph 13 of the Agreement.
Should you have any questions, please contact me at 717-697-4650.
Very truly yours,
COPY
David Galloway
Enclosure
cc: Mr. Thomas E. Schmitt (via electronic mail)
Mr. George France (via electronic mail)
VERIFICATION
I verify that the facts set forth in this Camplaint 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 § 4909, relating to unsworn falsification to authorities.
I am authorized to make this verification on behalf of Progressive Service Die Co.,
because of my position as Vice-President. !/`' ~
___ ,
,~.`
Date: November ~~012 Y `
eorge Fr~fi e
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson i- ~.-,4i;_i-(~_ 1= ~~k_
Sheriff E
~4ilitt4' 0~ 1'.BYttttll~,~.,r~ ~ ~`"~tt L),~~! _X iT~r , 'a
Jody S Smith 7'
Chief Deputy ~~ ~ ~ ~~`~' 30 Phi 3. Q r
Richard W Stewart ~~.l~~~t~.~~ill L~~fi~,i
Solicitor s,r~ ~~ -~~ '~~~ ~~ ~~~~
~'E!~SYLV,~~~1~'-;
Progressive Service Die Company Case Number
vs.
HJ Towing & Recovery, Inc. (et al.) 2012-6980
SHERIFF'S RETURN OF SERVICE
11/20/2012 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry
for the within named Defendant to wit: HJ Towing & Recovery, Inc., but was unable to locate the
Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Perry, Pennsylvania to
serve the within Complaint & Notice according to law.
11/20/2012 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry
for the within named Defendant to wit: Jake Richcreek, but was unable to locate the Defendant in the
Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Perry, Pennsylvania to serve the within
Complaint & Notice according to law.
11 /26/2012 02:00 PM -The requested Complaint & Notice served by the Sheriff of Perry County upon Sharon Burd,
Secretary/Adult in Charge, who accepted for Jake Richcreek, at 34 Richcreek Ridge Lane, Landisburg,
PA 17040. Carl E. Nace, Sheriff, Return of Service attached to and made part of the within record.
11 /26/2012 02:00 PM -The requested Complaint & Notice served by the Sheriff of Perry County upon Sharon Burd,
Secretary, who accepted for HJ Towing & Recovery, Inc., at 34 Richcreek Ridge Lane, Landisburg, PA
17040. Carl E. Nace, Sheriff, Return of Service attached to and made part of the within record.
SHERIFF COST: $53.45 SO ANSWERS,
~- ~~
November 29, 2012 RON R ANDERSON, SHERIFF
Progressive Service Die IN THE COURT OF COMMON PLEAS OF
THE 41st JUDICIAL DISTRICT OF PENNSYLVANIA,
Company PERRY COUNTY BRANCH
Versus
H & J Towing & Recovery Inc.
Jake Richcreek No. 2012-6980 Cumberland Co.
SHERIFF'S RETURN
And now November 26 , 2012: Served the within name Jack Richcreek
the defendant(s) named herin, personally at his place of residence in Spring Twp-34
Richcreek Ridge Lane,
Landisburg,
Perry County, PA, on November 26, 2012 at 2:00 o'clock PM
by handing to Sharon Burd, office secretary/person in 1 true and attested
charge
copy(ies) of the within Complaint
and made known to her the contents thereof
Sworn and subscribed to before me this
day of ~,~ ~ , o? 0/~
G(~ _
~~,,,-'Prothonotary
So answers
Deputy Sheriff of Perry County
COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
MARGARET F. FLICKINGER, Notary Public
Bloomfield Boro, Perry County
My Commission Expires February 16, 2016
Progressive Service Die IN THE COURT OF COMMON PLEAS OF
THE 41st JUDICIAL DISTRICT OF PENNSYLVANIA,
Company PERRY COUNTY BRANCH
Versus
H & J Towing & Recovery Inc.
Jake Richcreek No. 2012-6980 Cumberland Co.
SHERIFF'S RETURN
And now November 26 , 2012: Served the within name H & J Towing & Recovery Inc.
the defendant(s) named herin, personally at his place of residence in Spring Twp-34
Richcreek Ridge Lane,
Landisburg,
Perry County, PA, on November 26, 2012 at 2:00 o'clock PM
by handing to Sharon Burd, office secretary
copy(ies) of the within Complaint
and made known to her the contents thereof
Sworn and subscribed to before me this ~~P ~~
day of ~~U~vvl12P~' , ~D/ ~
~' Prothonotary
COIuNMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
MARGARET F, FLICKINGER, Notary Public
Bloomfield Boro, Perry County
My Commission Expires February 16, 2016
1 true and attested
So answers
~ ~~ ~~S
Deputy Sheriff of Perry County
David R. Galloway ' lip
H 0 N 0 Counsel for Plaintiff
Attorney I.D.No. 87326 2013 APR - 1
54 E. Main Street Ptl 3: 0 7
Mechanicsburg, PA 17055 CUMBERLAND CoUllil-f y
Telephone: (717) 697-4650 PENNSYLVANIA
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO.,
Plaintiff
CIVIL ACTION--LAW
V.
DOCKET NO: 2012--6980
H J TOWING & RECOVERY, INC.,
a/k/a H&J,a Corporation,
JAKE RICHCREEK TRANSPORTATION, INC.,
and JAKE RICHCREEK, Individually,
Defendants
PLAINTIFF'S RESPONSE TO DEFEDANTS' PRELIMINARY OBJECTIONS
AND NOW, comes Plaintiff, by and through its attorney, David R. Galloway, Esquire,
and responds to Defendants' Preliminary Objections as follows:
1-3. Without admission or denial as the allegation refers to a written document which
speaks for itself.
4-6. Denied. To the contrary, the spirit of the document refers directly to H J Towing
and Recovery, Inc., the entity with the sign attached to the Premises referenced in the First
Amended Complaint. A picture of said sign is attached hereto as Exhibit"A."
WHEREFORE, Plaintiff respectfully requests this Honorable Court overrule
Defendants' Preliminary Objections and order Defendants to file an answer to Plaintiffs First
Amended Complaint.
Plaintiff incorporates Paragraphs I through 6, above, as if set forth in full, below.
7-8. Without admission or denial as the allegations contained in these Paragraphs refer
to a written document which speaks for itself.
9-11. The allegation contained herein is a conclusion of law to which no response is
necessary. To the extent a response is necessary, Defendants' initial preliminary objections under
Pa.R.Civ.P. 1028, permitted Plaintiff to file an amended complaint under Pa.R.Civ.P. 1028(c)(1)
and Pa.R.Civ.P. 1033. The addition of Jake Richcreek Transportation, Inc. is not prejudicial to
any party as the statute of limitations has only begun to run.
WHEREFORE, Plaintiff respectfully requests this Honorable Court overrule
Defendants' Preliminary Objections and order Defendants to file an answer to Plaintiffs First
Amended Complaint.
Plaintiff incorporates Paragraphs I through 11, above, as if set forth in full, below.
12-15. Without admission or denial as the allegations contained in these Paragraphs refer
to a written document that speaks for itself.
16. The allegation contained herein is a conclusion of law to which no response is
necessary.
17-20. The allegations contained in these Paragraphs are conclusions to laws to which no
response is necessary. To the extent a response is necessary, Defendants did not vacate the
Premises until February 2, 2013.
WHEREFORE, Plaintiff respectfully requests this Honorable Court overrule
Defendants' Preliminary Objections and order Defendants to file an answer to Plaintiffs First
Amended Complaint.
Plaintiff incorporates Paragraphs I through 20, above, as if set forth in full, below.
21-22. Without admission or denial as the allegations contained in these Paragraphs refer
to a written document that speaks for itself.
23-27. Without admission or denial as the allegations contained in this Paragraph refers
to a written document that speaks for itself. To the extent a response is necessary, Thomas E.
Schmitt, Jr. is no longer a corporate officer of Progressive Service Die Company. George France
is presently Plaintiff's vice-president.
WHEREFORE, Plaintiff respectfully requests this Honorable Court overrule
Defendants' Preliminary Objections and order Defendants to file an answer to Plaintiffs First
Amended Complaint.
Respectfully submitted,
T By
David R. Galloway 873126
f
Counsel for Plain f
I mhfv that the facts set forth in this Response are twe and correct to the hest ofmy
ku*p1cdee. information and 6eiic[ loodc'�iuod ,bu/ false $uucmcnm herein are made subject |m
the penalties u[ iXyu{.5 §4g09' rr}udne tnuxsr/nrn Falsification 0oauthorities.
I om authorized to make this vcdOoKinu on behalf of Progressive Service Din Co-
because of my position as Vice-President.
Du/c March - 2013
qGeorL,e ace
U '
v
David R. Galloway Counsel for Plaintiff
Attorney I.D. No. 87326
54 E. Main Street
Mechanicsburg, PA 17055
Telephone: (717) 697-4650
IN THE COURT OF COMMON PLEAS OFCUMBERLAND COUNTY,PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO.,
Plaintiff
CIVIL ACTION--LAW
V.
DOCKET NO: 2012--6980
H J TOWING & RECOVERY, INC.,
a/k/a H&J, a Corporation,
JAKE RICHCREEK TRANSPORTATION, INC.,
and JAKE RICHCREEK, Individually,
Defendants
CERTIFICATE OF SERVICE
1, David R. Galloway, certify I served a copy of the within Plaintiffs Response to
Defendants' Preliminary Objections on this date, upon Defendants by First-Class Mail, Postage
Pre-Paid,addressed as follows:
Douglas G. Miller, Esquire
IRWIN & McKNIGHT, P.C.
60 West Pomfret Street
Carlisle, PA 17013
Respectfully submitted,
Date: 2013 Dyvid R. Gallowa
Counsel for Plaintiff
d E
w 7
.
C`
rHLE J-O FICE
David R. Galloway 10,F T HIE P R 0 T H 0 N 0 TAIR Y Counsel for Plaintiff
Attorney I.D.No. 87326
54 E. Main Street 2013 APR 22 PM t: 22
Mechanicsburg, PA 17055 CUMBERLAND COUNTY
Telephone: (717) 697-4650 PFNNSYf VANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO., )
Plaintiff )
CIVIL ACTION--LAW
V. )
DOCKET NO: 2012--6980
H J TOWING &RECOVERY, INC., )
a/k/a H& J, a Corporation, )
JAKE RICHCREEK TRANSPORTATION, INC., )
and JAKE RICHCREEK, Individually, )
PRAECIPE TO REMOVE FROM ARGUMENT COURT LIST
TO THE PROTHONOTARY:
Please remove the above captioned case from the argument court list scheduled for May
10, 2013.
Respectfully submitted,
David R Galloway, 7326
David R. Galloway Counsel for Plaintiff
Attorney I.D. No. 87326
54 E. Main Street
Mechanicsburg, PA 17055
Telephone: (717) 697-4650
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO., )
Plaintiff )
CIVIL ACTION--LAW
V. )
DOCKET NO: 2012--6980
H J TOWING &RECOVERY, INC., )
a/k/a H&J, a Corporation, )
JAKE RICHCREEK TRANSPORTATION, INC., )
and JAKE RICHCREEK, Individually, )
Defendants )
CERTIFICATE OF SERVICE
1, David R. Galloway, certify I served a copy of the Praecipe to Remove Case from
Argument Court List by First-Class Mail, Postage Pre-Paid, addressed as follows:
Douglas G. Miller, Esquire
IRWIN & McKNIGHT, P.C.
60 W. Pomfret St.
Carlisle, PA 17013
Respectfully submitted,
By:
Date: April 19, 2013 David R. Gallowftiff
Counsel for Plai
PRAECIPE FOR LISTING CASE FOR ARGUMENT 4AL
(Must be typewritten and submitted in triplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter Jqr t4p,,ne)M
Argument Court.) (-- = *-n
-- --------------------------------------------------------------- --------------------------------------------; a
CAPTION OF CASE RM
:Zrn
(entire caption must be stated in full) -;,-M --c ,,r—
PROGRESSIVE SERVICE DIE CO.,
vs.
C.)
=e
H J TOWING&RECOVERY,INC.
a/k/a H&J,a Corporation,
JAKE RICHCREEK TRANSPORTATION,INC., 12-6980 Civil
and JAKE RICHCREEK,Individually, No. Term
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to
complaint,etc.):
Defendant Preliminary Objection
2. Identify all counsel who will argue cases:
(a) for plaintiffs:
David R. Galloway, Esquire
(Name and Address)
54 E. Main Street, Mechanicsburg, PA 17055
(b) for defendants:
Douglas G. Miller, Esquire
(Name and Address)
60 West Pomfret Street, Carlisle, PA 17013
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date:
6/21/2013
Si u
9
r
u
A
Pwt your name
Plaintiff
Date: Attorney for
INSTRUCTI NS:
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 rellsted.
,
.1-7
David R. Galloway Counsel for Plaintiff
Attorney I.D.No. 87326
54 E. Main Street
Mechanicsburg, PA 17055
Telephone: (717) 697-4650
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO.,
Plaintiff
CIVIL ACTION--LAW
V.
DOCKET NO: 2012--6980
H J TOWING& RECOVERY, INC.,
a/k/a H&J, a Corporation,
JAKE RICHCREEK TRANSPORTATION, INC.,
and JAKE RICHCREEK, Individually,
Defendants
CERTIFICATE OF SERVICE
1, David R. Galloway, certify I served a copy of the Praecipe for Listing Case for
Argument upon counsel for Defendant by First-Class Mail, Postage Pre-Paid, on May 3. 2013,
addressed as follows:
Douglas G. Miller,Esquire
60 West Pomfret Street
Carlisle, PA 17013
Re I bmitted, M;=
y
C�
By -<> C:) I
2_1 -icy
David R. Ga011. o- ay
iff
Counsel 7for Pla ntiff C7
C-_
;z
Cn
PROGRESSIVE SERVICE DIE CO. IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
H J TOWING & RECOVERY, INC.,
A/K/A H & J, A CORPORATION, AND
JAKE RICHCREEK, INDIVIDUALLY,
DEFENDANTS NO. 12-6980 CIVIL
IN RE: DEFENDANTS PRELIMINARY OBJECTIONS
BEFORE GUIDO, J., EBERT, J., AND PECK, J.
ORDER OF COURT
AND NOW, this 27th day of June, 2013, upon consideration of the Defendants'
Preliminary Objections to Plaintiff's First Amended Complaint, Plaintiff's Response
thereto, and after oral argument,
IT IS HEREBY ORDERED AND DIRECTED that the Preliminary Objections are
OVERRULED. The Defendants shall file an Answer to the Complaint within 20 days
from the date of this Order.
By the Court,
vt�I, �-a V
M. L. Ebert, Jr., J.
✓ David R. Galloway, Esquire
Attorney for Plaintiff
-OX
Douglas G. Miller, Esquire MCC
c
Attorney for Defendants =rn
�r �
> NCa
bas
n
ies
/�3 -
t
PROGRESSIVE SERVICE DIE CO. : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY,PENNSYLVANIA
V. NO. 2012—6980 CIVIL TERM
H J TOWING & RECOVERY,INC., CIVIL ACTION—LAW
a/k/a H & J,a Corporation, and
JAKE RICHCREEK, Individually,
Defendants. JURY TRIAL DEMANDED
NOTICE
YOU ARE HEREBY NOTIFIED that you must responsively plead to the within
Defendants' New Matter and Counterclaim,pursuant to Pa. R.C.P. 1026 within twenty (20) days
after service, or a default judgment may be entered against you.
IRWIN& McKNIGHT,P.C.
By:
Douglas . Miler,Esquire
Supreme ourt I.D.No: 83776
60 West Pomfret Street
Carlisle, PA 17013
717-249-2353
Date: August 8, 2013 Attorney for Defendants r
CD
r--.r..
�✓� � C r ter`.
M
. t
x ,
PROGRESSIVE SERVICE DIE CO. : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY,PENNSYLVANIA
V. NO. 2012—6980 CIVIL TERM
H J TOWING &RECOVERY,INC., CIVIL ACTION—LAW
a/k/a H& J,a Corporation, and
JAKE RICHCREEK, Individually,
Defendants. : JURY TRIAL DEMANDED
ANSWER WITH NEW MATTER AND COUNTERCLAIM
TO PLAINTIFF'S FIRST AMENDED COMPLAINT
AND NOW this 8h day of August, 2013, come the Defendants by and through their
attorneys, Irwin & McKnight, P.C., and respectfully file this Answer with New Matter and
Counterclaim to the Plaintiff's First Amended Complaint, and in support thereof aver as follows:
1. After reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph one (1) so they
are therefore specifically denied and strict proof thereof is demanded at trial. By way of further
answer, and upon information and belief, Plaintiff does not have a primary mailing address in
North Carolina registered with the Pennsylvania Department of State.
2. The averments of fact contained in paragraph two (2) are denied as stated. It is
admitted that H J Towing & Recovery, Inc. is a Pennsylvania corporation with a registered office
address in Landisburg, Pennsylvania. The remaining averments in paragraph two (2), including
any inference that"H & J, a corporation" is owned by or affiliated with H J Towing & Recovery,
Inc., are specifically denied and strict proof thereof is demanded at trial and are continuously
denied for the remainder of the averments in Plaintiffs Complaint wherein Plaintiff repeatedly
attempts to merge and/or link the two.
3. The averments contained in paragraph three (3) are denied as stated. It is
admitted that Jake Richcreek Transportation, Inc., is a Pennsylvania corporation with a registered
office address in Landisburg, but the remaining averments, including any and all inferences that
Plaintiff contracted with or has any business relations or commercial contacts with Jake
Richereek Transportation, Inc., are specifically denied and strict proof thereof is demanded at
trial.
4. The averments of fact contained in paragraph four(4) are admitted.
5. The averments contained in paragraph five (5) are denied as stated. It is admitted
that Defendant Jake Richcreek on behalf of H&J, a corporation, signed a Lease with Plaintiff on
or about July 15, 2009, and that a poor copy of that signed Lease, including several handwritten
and agreed upon changes to the Lease, is attached as Exhibit "A." The remaining averments in
paragraph five (5) are specifically denied and strict proof thereof is demanded at trial.
6. The averments contained in paragraph six (6) are specifically denied and strict
proof thereof is demanded at trial. By way of further answer, although the Lease is dated July
15, 2009, the first rent payments were changed to October, November, and December 2009 and
the payment amounts were reduced to $2,800.00 per month with a review to occur in January
2010 and further negotiations between the parties to the Lease.
7. The averments contained in paragraph seven (7) are denied as stated. It is
admitted that the date in paragraph 3 of the Lease was changed by Plaintiff to "September 1,
2006" along with the payment date. It is also admitted that the first rent payments were changed
to October,November, and December 2009 and the payment amounts were reduced to $2,800.00
per month with a review to occur in January 2010 and further negotiations between the parties to
the Lease. Any remaining averments contained in paragraph seven (7) are specifically denied
and strict proof thereof is demanded at trial.
8. The Lease referenced in paragraph eight (8), including its named parties and
signatories, speaks for itself and therefore no response is required. To the extent a response is
required, any inference that any of the named Defendants have any further obligations to the
Plaintiff are specifically denied and strict proof thereof is demanded at trial.
2
9. The Lease referenced in paragraph nine (9), including its named parties and
signatories, speaks for itself and therefore no response is required. To the extent a response is
required, any inference that any of the named Defendants have any further obligations to the
Plaintiff are specifically denied and strict proof thereof is demanded at trial.
10. The averments contained in paragraph ten(10) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
11. The averments contained in paragraph eleven (11) are denied as stated. It is
admitted that a check in the amount of $5,000.00 was paid to Plaintiff, but the remaining
averments in paragraph eleven (11), including any inference that H J Towing & Recovery, Inc.
had any contractual obligation, or that further rent payments were owed by any of the named
Defendants, are specifically denied and strict proof thereof is demanded at trial.
COUNT I—EJECTMENT
12. The averments contained in the Defendants' Answers in paragraphs one (1)
through eleven (11) above are hereby incorporated by reference as if fully set forth below.
13. After reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph thirteen (13) so
they are therefore specifically denied and strict proof thereof is demanded at trial. By way of
further answer, the letter referenced by Plaintiff in the paragraph is not attached to the First
Amended Complaint and Defendants Jake Richcreek and H&J, a Corporation had long before
informed Plaintiff's agents and representatives that the premises were not fixed, repaired, or
maintained as previously promised, were therefore not commercially usable as required by the
terms of the Lease, and that Defendants were turning possession of the premises back to Plaintiff
through its agents and representatives.
3
14. The averments contained in paragraph fourteen (14) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial.
15. The averments contained in paragraph fifteen (15) are specifically denied and
strict proof thereof is demanded at trial. By way of further answer, Defendants Jake Richcreek
and H&J, a Corporation had long before informed Plaintiff's agents and representatives that the
premises were not fixed, repaired, or maintained as previously promised, were therefore not
commercially usable as required by the terms of the Lease, and that Defendants were turning
possession of the premises back to Plaintiff through its agents and representatives.
WHEREFORE, Defendants respectfully request that this Honorable Court enter a
judgment in their favor and against Plaintiff in this matter.
COUNT 11—RENTAL INCOME
16. The averments contained in the Defendants' Answers in paragraphs one (1)
through fifteen (15) above are hereby incorporated by reference as if fully set forth below.
17. The averments contained in paragraph seventeen (17) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial.
18. The averments contained in paragraph eighteen (18) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial. By way of further answer, the
monthly payment amounts were reduced to $2,800.00 per month with a review to occur in
January 2010 and further negotiations between the parties to the Lease. Said negotiations never
occurred or were finalized, and in the meantime the premises were not fixed, repaired, or
maintained as previously promised by Plaintiffs agents and representatives, were therefore not
4
commercially usable as required by the terms of the Lease, and therefore possession of the
premises was returned to Plaintiff prior to the end of 2010.
19. The averments contained in paragraph nineteen (19) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial. By way of further answer,
Paragraph 16.G of the Lease by its terms provides only for "reasonable attorney's fees" for the
successful party in proceedings commenced during the term of the lease, and Plaintiffs action
was not brought during the term of the lease and are far from reasonable.
20. The averments contained in paragraph twenty (20) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial.
WHEREFORE, Defendants respectfully request that this Honorable Court enter a
judgment in their favor and against Plaintiff in this matter.
COUNT III—ALLEGED DAMAGE TO LEASHOLD PREMISES
21. The averments contained in the Defendants' Answers in paragraphs one (1)
through twenty (20) above are hereby incorporated by reference as if fully set forth below.
22. After reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph twenty-two (22)
so they are therefore specifically denied and strict proof thereof is demanded at trial. By way of
further answer, Plaintiff has a long history of not paying its obligations timely and not fulfilling
its promises and representations, including its agents' and representatives' many promises to fix,
repair, and maintain the premises in a commercially usable manner as required by the terms of
the Lease.
5
23. After reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph twenty-three
(23) so they are therefore specifically denied and strict proof thereof is demanded at trial. By
way of further answer, Plaintiff has a long history of not paying its obligations timely and not
fulfilling its promises and representations, including its agents' and representatives' many
promises to fix, repair, and maintain the premises in a commercially usable manner as required
by the terms of the Lease.
24. After reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph twenty-four
(24) so they are therefore specifically denied and strict proof thereof is demanded at trial. By
way of further answer, Plaintiff has a long history of not paying its obligations timely and not
fulfilling its promises and representations, including its agents' and representatives' many
promises to fix, repair, and maintain the premises in a commercially usable manner as required
by the terms of the Lease..
25. After reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph twenty-five
(25) so they are therefore specifically denied and strict proof thereof is demanded at trial. By
way of further answer, Plaintiff has a long history of not paying its obligations timely and not
fulfilling its promises and representations, including its agents' and representatives' many
promises to fix, repair, and maintain the premises in a commercially usable manner as required
by the terms of the Lease.
26. After reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph twenty-six (26)
so they are therefore specifically denied and strict proof thereof is demanded at trial. By way of
further answer, Plaintiff has a long history of not paying its obligations timely and not fulfilling
its promises and representations, including its agents' and representatives' many promises to fix,
6
repair, and maintain the premises in a commercially usable manner as required by the terms of
the Lease.
27. After reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph twenty-seven
(27) so they are therefore specifically denied and strict proof thereof is demanded at trial. By
way of further answer, Plaintiff has a long history of not paying its obligations timely and not
fulfilling its promises and representations, including its agents' and representatives' many
promises to fix, repair, and maintain the premises in a commercially usable manner as required
by the terms of the Lease.
28. After reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph twenty-eight
(28) so they are therefore specifically denied and strict proof thereof is demanded at trial. By
way of further answer, Plaintiff has a long history of not paying its obligations timely and not
fulfilling its promises and representations, including its agents' and representatives' many
promises to fix, repair, and maintain the premises in a commercially usable manner as required
by the terms of the Lease.
WHEREFORE, Defendants respectfully request, that this Honorable Court enter a
judgment in their favor and against Plaintiff in this matter.
COUNT IV—IN QUANTUM MERUIT
29. The averments contained in the Defendants' Answers in paragraphs one (1)
through twenty-eight(28) above are hereby incorporated by reference as if fully set forth below.
30. The averments contained in paragraph thirty (30) are conclusions of law to which
no response is required. To the extent that a response is required, the averments are specifically
7
denied and strict proof thereof is demanded at trial. By way of further answer, through its agents
and representatives Plaintiff promised that the premises would be fixed, repaired, and maintained
in a commercially reasonable and usable manner and as further required by the terms of the
Lease, which Plaintiff failed and refused to do after possession was granted pursuant to the
revised terms of the Lease.
31. The averments contained in paragraph thirty-one (31) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial.
32. The averments contained in paragraph thirty-two (32) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial.
WHEREFORE, Defendants respectfully request that this Honorable Court enter a
judgment in their favor and against Plaintiff in this matter.
COUNT V—IN QUANTUMMERUIT
33. The averments contained in the Defendants' Answers in paragraphs one (1)
through thirty-two (32) above are hereby incorporated by reference as if fully set forth below.
34. The averments contained in paragraph thirty-four (34) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial. By way of further answer,
Defendant Jake Richcreek Transportation, Inc. did not use or lease the premises from Plaintiff,
and was not properly added as a party to this action under Pennsylvania law.
35. The averments contained in paragraph thirty-five (35) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
8
specifically denied and strict proof thereof is demanded at trial. By way of further answer,
Defendant Jake Richcreek Transportation, Inc. did not use or lease the premises from Plaintiff,
and was not properly added as a party to this action under Pennsylvania law.
36. The averments contained in paragraph thirty-six (36) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial. By way of further answer,
Defendant Jake Richcreek Transportation, Inc. did not use or lease the premises from Plaintiff,
and was not properly added as a party to this action under Pennsylvania law.
WHEREFORE, Defendants respectfully request that this Honorable Court enter a
judgment in their favor and against Plaintiff in this matter.
COUNT VI—IN QUANTUM MERUIT
37. The averments contained in the Defendants' Answers in paragraphs one (1)
through thirty-six(36) above are hereby incorporated by reference as if fully set forth below.
38. The averments contained in paragraph thirty-eight (36) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial.
39. The averments contained in paragraph thirty-nine (39) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial.
40. The averments contained in paragraph forty (40) are conclusions of law to which
no response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
9
WHEREFORE, Defendants respectfully requests that this Honorable Court enter a
judgment in their favor and against Plaintiff in this matter.
NEW MATTER
41. The averments of fact contained in Defendants' Answers above are hereby
incorporated by reference as if fully set forth below.
42. According to the Lease attached to Plaintiffs First Amended Complaint, the
Tenant as defined in the Lease is"H & J A Corporation" and is signed by Jake Richcreek.
43. Plaintiff,by and through its agents, owners, or representatives,prepared, found, or
otherwise caused the Lease to be made and presented to Jake Richcreek for signature.
44. The parties to the Lease made several handwritten amendments to the typewritten
Lease Agreement form.
45. One of the handwritten changes to the typewritten form was to reduce the
monthly rent amount to $2,800.00 for at least the months of October, November, and December
2009 with a review to occur in January 2010 and further negotiations between the parties to the
Lease as to the future monthly rental amount.
46. The parties to the Lease never agreed to raise the monthly rent to the original
$4,000.00 typed onto the Lease Agreement.
47. Paragraph LC of the Lease Agreement provides in pertinent part that certain
improvements to the premises were included as part of the lease including all "mechanical,
electrical, plumbing, heating, cooling, and ventilation systems, the parking lot, service areas,
parking lot lighting and all water and service lines, electrical and telephone lines, and sanitary
10
and storm sewer mains and lines necessary for the operation of the Truck and Auto Repair
Facility."
48. Said paragraph of the Lease Agreement also states that the improvements to be
included for Tenant's use were "1/3 of the building," in this case a warehouse.
49. Paragraph 8 of the Lease Agreement provides in pertinent part that Tenant was to
be responsible as additional rent for "his percentage share for all water, fuel, gas, oil, heat,
electricity, power, telephone, materials, and other services which may be furnished to or utilized
on the Demised Premises" (emphasis added).
50. As inducement to entering in the Lease Agreement, Plaintiff's agents or
representatives promised that certain repairs and improvements would be made to the warehouse
structure, especially repairs to the roof.
51. At no time during the occupancy of the "Demised Premises" in accordance with
the aforementioned Lease Agreement did Plaintiff repair or replace the roof on the warehouse
structure.
52. At all times relevant hereto, the roof of the warehouse structure had significant
holes and resulting leaks that prevented material from being stored in the leased warehouse
space.
53. At all times relevant hereto, the roof of the warehouse structure would leak
directly into the office space, causing ceiling tiles to bulge and the carpeting to be wet and
stained, and materials to be damaged.
54. At all times relevant hereto, Plaintiff's agents or representatives would, install,
reinstall, or maintain significant amounts of plastic sheeting to direct rainwater from the holes in
11
the roof of the structure to buckets on the ground in order to attempt to collect the rainwater
coming into the warehouse structure.
55. After the commencement of the Lease, the roof was leaking so badly that
Plaintiffs agent or representative, Thomas E. Schmitt, who was also utilizing a portion of the
warehouse, asked if the tenant could fix the roof and repair the multiple leaks.
56. The tenant in fact did fix the front corner of the Plaintiff's roof, paid for all labor
and materials, and was not reimbursed by the Plaintiff.
57. The roof leaked so badly, however, that there was mold growing in numerous
locations of the leased warehouse, including walls,carpeting, fixtures, and appliances.
58. In the winter at the end of 2009 and beginning of 2010, the tenant also discovered
that the heating system for the offices located in the warehouse did not function properly.
59. In the winter at the end of 2009 and beginning of 2010, the temperature was so
cold in the offices of the warehouse that the ink in the tenant's printer froze and could not print
documents.
60. The temperature was so cold in the warehouse as a result of the malfunctioning
heating system that the Plaintiff's representative or agent who was using a portion of the
warehouse, Thomas E. Schmitt, did not even come into the warehouse or work there when the
temperature fell.
61. As a direct result of the failure to fix the leaking roof of the warehouse and
misrepresentation by Plaintiff of the fitness for use and operability as a Truck and Auto Repair
Facility, the tenant informed Plaintiff that it was in violation of the terms of the parties' Lease
Agreement and was moving out of the offices and associated warehouse space.
12
62. The tenant also expended significant sums of money to fix or repair the
warehouse and property that were the responsibility of the Plaintiff under the terms of the Lease
Agreement, including but not limited to installing wiring, fixing fire hydrant water lines, paying
real estate taxes, re-grading of the property, fixing dock plates, removal of Plaintiff's junk from
around the premises to comply with township codes and zoning regulations, replacing warehouse
garage door, and paying for milling to be installed to improve the parking area.
63. The tenant also paid all insurance and heating bills both during the time tenant
occupied the premises as well as a period of time beyond occupancy, even though Plaintiff was
to be responsible for approximately two-thirds of said expenses under the terms of the Lease
Agreement.
64. The tenant also helped Plaintiffs agent or representative, Thomas E. Schmitt,
load materials into trailers that had been sold, removed large rocks from his property, repaired
and inspected several vehicles, and plowed the driveway numerous times with the promise and
assurance that said acts would result in further reductions to the monthly rent.
65. At the request of the Plaintiffs agents and representatives, the tenant also took
and shipped three (3) loads of freight and materials to Jacksonville, North Carolina with the
promise on behalf of Plaintiff that$525.00 would be credited to the monthly rental amount.
66. Despite the numerous additional actions undertaken by the tenant and the
associated promises and assurance on behalf of Plaintiff for associated reductions in the monthly
rent, no such credits or refunds were provided by Plaintiff.
67. As set forth above, Plaintiff breached both its obligations under the terms of the
Lease Agreement, and its inducements and representations that were material to the signing of
13
the document and occupancy of the warehouse premises for the operation of a truck repair
facility.
68. According to Plaintiff's Complaint, the last rent check received was on or about
September 9, 2010, yet Plaintiff purportedly did not send a demand letter for rent payment until
nearly two (2) years later, on or about August 31, 2012.
69. Under the terms of the Lease Agreement and Pennsylvania law, Plaintiff was
required to mitigate its purported damages by making a reasonable effort to re-lease the
warehouse premises.
70. Plaintiff did not mitigate its purported damages by making a reasonable effort to
re-lease the premises.
71. After leaving the leased premises in 2010, the tenant brought at least five (5)
different companies and individuals to view the warehouse for possible rental, but none of the
said prospective tenants would consider renting the premises until the roof and its leaks were
properly repaired.
72. Upon information and belief, after the Plaintiff repaired and/or replaced the roof
of the warehouse it was able to lease the warehouse space to one of the individuals or companies
that tenant took through the premises.
73. Plaintiff s Complaint therefore fails to state claims or causes of action upon which
relief can be granted.
74. All or a portion of Plaintiff's claims may be barred by the defense of the
applicable statute of limitations.
75. All or a portion of Plaintiff's claims may therefore be barred by the defense of
laches.
14
76. All or a portion of Plaintiff's claimed damages are attributable to persons and/or
causes other than the named Defendants.
77. As outlined herein, all or a portion of Plaintiff's claimed damages are barred
impossibility of performance and justification as a result of the condition of the warehouse
premises.
78. Defendant Jake Richcreek Transportation, Inc. did not contract with or have any
business relations or commercial contacts with Plaintiff, did not use or lease the premises from
Plaintiff, and was not properly added as a party to this action under Pennsylvania law.
WHEREFORE, Defendants respectfully request that this Honorable Court enter a
judgment in their favor and against Plaintiff in this matter.
COUNTERCLAIM
79. In spite of the clear terms of the parties' Lease Agreement, Plaintiff did not pay
any portion of the insurance, heating, or electric bills for the Leased Premises during the time of
occupancy and for a period of time beyond occupancy.
80. On or about July 15, 2010, the Plaintiff's warehouse property was posted with a
"Notice of Public Tax Sale" in which it was stated that Plaintiff was behind in the payment of
real estate taxes in the amount of$27,568.08.
81. On or about September 13, 2010, the tenant paid or caused to be paid a sufficient
amount of taxes to avoid having the warehouse property sold at Cumberland County Upset Tax
Sale on September 16, 2010, which payment upon information and belief was $14,179.22.
15
82. Plaintiff failed and refused to reimburse tenant for the partial payment of
Plaintiff's then outstanding real estate taxes.
83. As set forth in more detail above, Plaintiff failed and refused to reimburse the
tenant for installing wiring, fixing fire hydrant water lines, paying real estate taxes, re-grading of
the property, fixing dock plates, removal of Plaintiff's junk from around the premises to comply
with township codes and zoning regulations, replacing warehouse garage door, and paying for
milling to be installed to improve the parking area, all of which were obligations of the Plaintiff
under the terms of the Lease Agreement and the representations of the Plaintiff by its agents.
84. As set forth in more detail above, Plaintiff also did not pay for its proportional
share of the insurance, heating, electric, and other utility bills both during the time the tenant
occupied the premises as well as a period of time beyond occupancy, even though Plaintiff was
to be responsible for approximately two-thirds of said expenses under the terms of the Lease
Agreement, nor did Plaintiff pay for the labor and materials expended to fix a portion of the roof.
85. As set forth in more detail above, Plaintiff also did not pay for or credit the tenant
against the monthly rent for helping Plaintiff's agent or representative, Thomas E. Schmitt, load
materials into trailers that had been sold, removing large rocks from his property, repairing and
inspecting several vehicles, and plowing the driveway on the property numerous times.
86. As set forth in more detail above, Plaintiff also did not pay for or credit the tenant
against the monthly rent for taking and shipping three (3) loads of freight and materials to
Jacksonville, North Carolina at the request of Plaintiff.
87. Plaintiff is therefore in breach of the express terms of the parties' Lease
Agreement and its numerous representations and promises arising out of both the inducement to
enter into the commercial lease and the operation of the warehouse for a truck repair facility.
16
88. As set forth in more detail herein, Plaintiff has also been unjustly enriched by the
numerous improvements and capital expenditures made by the tenant to the real estate and
associated warehouse structure, and payment of taxes and multiple bills and expenses that were
obligations of the Plaintiff under the terms of the Lease Agreement and Pennsylvania law.
89. As a direct result of both Plaintiff's breach of the lease terms and obligations, and
expenditures unjustly enriching Plaintiff, the tenant has paid and is owed by Plaintiff more than
the arbitration limit of$50,000.00.
90. As a direct result of Plaintiff's breach of the lease terms and obligations, the
tenant is also entitled to payment of the reasonable attorney fees in accordance with paragraph
16.G. of the Lease Agreement.
91. Defendants are entitled to recover from Plaintiff compensatory damages sustained
in an exact amount yet to be determined.
WHEREFORE, Defendants demand judgment against Plaintiff, Progressive Service Die
Company, for the aforesaid damages in an amount greater than the arbitration limit of Fifty
Thousand ($50,000.00) Dollars, plus costs, interest, reasonable attorney fees, and all other relief
this Honorable Court deems fair and just.
Respectfully Submitted,
IR N& McKNIGHT, P.C.
By:
Douglas . Mater, Esquire
Supreme Court ID No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717)249-2353
Dated: August 8, 2013 Attorney for Defendants
17
j.
i
i
I
'I
VERIFICATION
i
The foregoing document is based upon information which has been gathered by'my
counsel and myself,in the preparation of this action. I have read the statements made in this
document and they are true and correct to the best of my knowledge, information and belief. I
understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section
4904, relating to unsworn falsification to authorities.
JA . RICHC EK
Date: 8/8/13
I
1
i
{
I�
1
CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy
of the foregoing document upon the persons indicated below both by facsimile and by first class
United States mail,postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
David R. Galloway, Esquire
54 East Main Street
Mechanicsburg, PA 17055
(Attorney for Plaintiff)
Date: August 9, 2013 IRWIN & McKNIGHT,P.C.
Douglas CU Miller, Esquire
Supreme Court ID No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717)249-2353
Attorney for Defendants
IHE
David R. Galloway '' l utr`! 'A
Counsel for Plaintiff 20,13 SEP
12
Attorney I.D. No. 87326
54 E. Main Street CUIIBERLA14D COUNTY
Mechanicsburg, PA 17055 RENNSYLVANI
Telephone: (717) 697-4650
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO., )
Plaintiff )
CIVIL ACTION--LAW
V. )
DOCKET NO: 2012--6980
H J TOWING& RECOVERY, INC., )
a/k/a H& J, a Corporation, )
JAKE RICHCREEK TRANSPORTATION, INC., )
and JAKE RICHCREEK, Individually, )
Defendants )
PLAINTIFF'S REPLY TO NEW MATTER, ANSWER TO COUNTERCLAIM WITH.
NEW MATTER
NOTICE TO PLEAD:
TO: H J TOWING & RECOVERY, INC., a/k/a H & J, a Corporation, JAKE
RICHCREEK TRANSPORTATION, INC., and JAKE RICHCREEK, Individually,
Defendants, by and through their attorney, DOUGLAS G. MILLER., ESQUIRE
You are hereby notified to file a written response to the enclosed New Matter of
Plaintiff within twenty (20) days from service hereof or a judgment may be entered against
you.
REPLY TO NEW MATTER
AND NOW, comes Plaintiff, by and through its attorney, David R. Galloway, Esquire,
and responds to Defendants' New Matter as follows:
41. Plaintiff incorporates Paragraphs 1 through 40 of its First Amended Complaint as
if set forth in full.
42. Without admission or denial as the allegation contained herein refers to a written
document which speaks for itself.
43. The allegation contained herein is a conclusion of law to which no response is
necessary.
44-49. Without admission or denial as the allegations contained herein refer to a written
document which speaks for itself. To the extent a response is necessary, Defendants occupied
nearly 100% of the Premises.
50. Admitted in part and denied in part. Plaintiff admits in 2010 it retained the
services of ESC Roofing and spent well over $5,000 in roofing repairs in preparation for leasing
the Premises. ESC remained on call for any future roofing issues that needed to be addressed.
All remaining allegations referring to Plaintiffs alleged inducement of Defendants are
specifically denied and proof thereof is demanded at trial.
51-53. Denied. To the contrary, Plaintiff retained the services of ESC Roofing for roof
repairs. When leaks occurred, ESC Roofing made repairs to the roof. In late 2011, ESC Roofing
indicated to Plaintiff the roof was so severely damaged from Defendants' failure to maintain the
utilities, namely heat, to the Premises, the roof could no longer be repaired. In December 20 11,
Plaintiff replaced the roof at a cost of $73,440. Additionally, as a result of the damage to the
roof, Plaintiff replaced the ceiling tile at a cost of$1,782.09.
54. Admitted in part and denied in part. Plaintiff admits it temporarily installed
plastic sheeting to direct rainwater to buckets until ESC Roofing could repair. All allegations
that plastic sheeting was maintained in significant amounts is specifically denied.
55. Denied. Plaintiff specifically denies the alleged request ever occurred.
56. Plaintiff is without information sufficient to form a belief as to the truth or falsity
of the allegations contained herein. If Defendants performed repairs, Defendants never notified
Plaintiff of those repairs.
57. After reasonable investigation, Plaintiff is without information sufficient to form a
belief as to the truth or falsity of the allegations contained herein.
58-60. Denied. To the contrary, Defendants failed to pay the utilities that powered the
heating system. Additionally, Defendants often worked inside the Premises with the garage door
open.
61. Denied. Plaintiff specifically denies Defendants ever approached Plaintiff about
the heating system or their desire to move from the Premises.
62. Denied. Plaintiff specifically denies Defendants expended significant sums of
money to fix, repair or improve any part of the Property. Plaintiff admits Defendants installed a
garage door opener at Defendants' expense.
63. Denied. Plaintiff specifically denies Defendants paid all insurance and heating
bills. To the contrary, Defendants failed to pay the hazard insurance and the utilities on the
Premises.
64. Denied. Plaintiff specifically denies any of the alleged actions would result in a
reduction of the monthly rent. To the contrary, if Plaintiff was afforded any service from
Defendants, Plaintiff never received a bill, invoice or other demand for payment. Plaintiff's
employees loaded all trailers of equipment heading to Plaintiff's Jacksonville location.
Defendants, with permission, converted the rear portion of the Premises into a truck parking lot.
To do that, Defendants moved rocks. Pursuant to the lease, Defendants were responsible for all
lawn care and snow removal.
65. Denied. To the contrary, Plaintiff contracted trucking firms to ship four (4) loads
of equipment from the Premises to Plaintiffs Jacksonville location. Three (3) of those
shipments were paid for by Plaintiff; one (1) shipment was transported by Defendants.
Defendants never submitted a bill or invoice for the work provided. Plaintiff offers to credit the
$525 against the amount requested in its Complaint.
66. Admitted in part and denied in part. It is admitted that Plaintiff, following the
initial revision to the monthly rent referenced in the Lease, provided no further reductions,
credits or refunds to the monthly rent. Any allegation that Plaintiff was required or promised to
reduce, credit or refund rent is specifically denied.
67. The allegations contained in this Paragraph are conclusions of law to which no
response is necessary.
68. Without admission or denial as the allegation contained herein refers to a written
document which speaks for itself. To the extent a response is necessary, the allegation is denied.
Plaintiff, by and through Thomas E. Schmitt, repeatedly made demands for rent payments and
repeatedly received promises and reinsurances from Defendants that rent would be paid.
69-70. The allegations contained in this Paragraph are conclusions of law to which no
response is necessary.
71. Denied. It is specifically denied Defendants left the premises in 2010. To the
contrary, Defendants did not leave the Premises until January, 2013. Because none of the
remaining allegations are relevant, no response is necessary. To the extent a response is
necessary, the allegations are specifically denied.
72. Denied. To the contrary, Plaintiff has been unable to lease the Premises even
though it replaced the roof in December 2011.
73-78. The allegations contained in this Paragraph are conclusions of law to which no
response is necessary.
WHEREFORE, Plaintiff requests that this Honorable Court dismiss Defendants' New
Matter with prejudice and enter Judgment in favor of Plaintiff and against Defendants plus costs
and other such relief as this Honorable Court shall deem just and appropriate.
ANSWER TO COUNTERCLAIM
Plaintiff incorporates Paragraphs 1 through 40 of its First Amended Complaint and
Paragraphs 41 through 78 of its Reply to New Matter as if incorporated in full herein.
79. Admitted in part and denied in part. Plaintiff admits all utility accounts were
opened, controlled and in Defendants' name. Utilities were to be divided by the parties by
usage; commercial general liability insurance was to be carried by Defendants. Defendants
occupied nearly the entire Premises. Plaintiff admits it occupied (1) small office 1 to 2 days per
week during the lease period. Plaintiff denies Defendants provided Plaintiff with any invoice,
request or demand for any portion of the utilities.
80. After reasonable investigation, Plaintiff is without information sufficient to form a
belief as to the truth or falsity of the allegations contained herein.
81-82. Denied. It is specifically denied Defendants paid any taxes on the Premises. To
the contrary, Plaintiff paid all taxes.
83-85. The allegations contained in these Paragraphs are conclusions of law to which no
response is necessary. To the extent a response is necessary, the allegations are denied. To the
contrary, all repairs made by Defendants, if any, to the Premises or payments made by
Defendants, if any, were made pursuant to the Lease or to repair damage caused by Defendants.
Additionally, utilities were to be divided by the parties by usage. Defendants occupied nearly
the entire Premises; commercial general liability insurance was to be carried by Defendants.
86. Denied. To the contrary, Plaintiff contracted trucking firms to ship four (4) loads
of equipment from the Premises to Plaintiff's Jacksonville location. Three (3) of those
shipments were paid for by Plaintiff, one (1) shipment was transported by Defendants.
Defendants never submitted a bill or invoice for the work provided. Plaintiff offers to credit the
$525 against the amount requested in its Complaint.
87-91. The allegations contained in these Paragraphs are conclusions of law to which no
response is necessary.
WHEREFORE, Plaintiff requests that this Honorable Court dismiss Defendants'
Counterclaim with prejudice and enter Judgment in favor of Plaintiff and against Defendants
plus costs and other such relief as this Honorable Court shall deem just and appropriate.
NEW MATTER
92. Plaintiff incorporates Paragraphs 1 through 40 of its First Amended Complaint,
Paragraphs 41 through 78 of its Reply to New Matter and Paragraphs 79 through 91 of its
Answer to Counterclaim as if incorporated in full herein.
93. Defendants' Counterclaim is barred due to the statute of limitations.
94. Defendants' Counterclaim fails to state a cause of action upon which relief may
be granted.
95. Defendants' Counterclaim is barred from recovery due to the doctrine of unclean
hands.
96. Defendants' Counterclaim is barred from recovery due to Defendants' failure to
deal in good faith.
97. Defendants' Counterclaim is barred from recovery due to the doctrine of laches.
98. Defendants' Counterclaim is barred from recovery due to the doctrine of estoppel.
99. Plaintiff is entitled to a set-off for any damages awarded to Defendants.
100. At all times material hereto, Plaintiff has acted in good faith.
101. Defendants continued to remove their possessions from the Premises through
January, 2013.
102. Defendants have never surrendered their keys to the Premises to Plaintiff.
WHEREFORE, Plaintiff requests that this Honorable Court dismiss Defendants'
Counterclaim with prejudice and enter Judgment in favor of Plaintiff and against Defendants
plus costs and other such relief as this Honorable Court shall deem just and appropriate.
Respectfully submitted,
7
David R. Galloway #87 26
Counsel for Plaintif
VERIFICATION
I verify that the facts set forth in this Plaintiff's Reply to New Matter, Answer to
Counterclaim with New Matter 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 § 4909, relating to unsworn falsification to authorities.
1. am authorized to make this verification on behalf of Progressive Service Die Co.,
because of my position as Vice-President.
Date: September 10, 2013
George Fr e
David R. Galloway Counsel for Plaintiff
Attorney I.D. No. 87326
54 E. Main Street
Mechanicsburg, PA 17055
Telephone: (717) 697-4650
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO., )
Plaintiff )
CIVIL ACTION--LAW
V. )
DOCKET NO: 2012--6980
H J TOWING & RECOVERY, INC., )
a/k/a H & J, a Corporation, )
JAKE RICHCREEK TRANSPORTATION, INC., )
and JAKE RICHCREEK, Individually, )
Defendants )
CERTIFICATE OF SERVICE
I, David R. Galloway, certify I served a copy of Plaintiff's Reply to New Matter, Answer
to Counterclaim with New Matter on this date, upon counsel for Defendants by First-Class Mail,
Postage Pre-Paid, addressed as follows:
Douglas G. Miller, Esquire
IRWIN & McKNIGHT, P.C.
60 W. Pomfret St.
Carlisle, PA 17013
Respectfully submitted,
By:
Date: September !t, 2013 David R. Galloway
Counsel for Plain ' f
David R. Galloway j THE PROTHO O IAi(`i Counsel for Plaintiff
Attorney I.D. No. 87326 2014 JAN 30 MI 8 25
WALTERS & GALLOWAY, PLLC
54 E. Main Street CUMBERLAND COUNTY
Mechanicsburg, PA 17055 PENNSYLVANIA
Telephone: (717) 697-4650
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO., )
Plaintiff )
) CIVIL ACTION--LAW
v. )
) DOCKET NO: 2012--6980
H J TOWING & RECOVERY, INC., )
a/k/a H & J, a Corporation, )
JAKE RICHCREEK TRANSPORTATION, INC., )
and JAKE RICHCREEK, Individually, )
Defendants )
CERTIFICATE OF SERVICE
I, David R. Galloway, certify I served a copy of Plaintiff's First Set of Interrogatories to
Defendants and Plaintiff's First Request for Production of Documents to Defendants, on this
date, upon counsel for Defendants by First-Class Mail, Postage Pre-Paid, addressed as follows:
Douglas G. Miller, Esquire
IRWIN & McKNIGHT, P.C.
60 W. Pomfret St.
Carlisle, PA 17013
Respectful) submitted,
By:
Date: January f 2014 David R. Galloway
Counsel for Plaintiff
David R. Galloway
Attorney I.D. 87326
WALTERS & GALLOWAY, PLLC
54 E. Main St.
Mechanicsburg, PA 17055
Telephone: 717-697-4650
Facsimile: 717- 697 -9395
FILED-OFFICE
'OF THE PROTHONOTARY
201 Counsel for Plaintiff
CUMBERLAND COUNTY
PENNSYLVANIA
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO.,
Plaintiff
CIVIL ACTION - LAW
v.
DOCKET NO: 2012 -6980
H J TOWING & RECOVERY, INC., )
a/k/a H & J, a Corporation, )
JAKE RICHCREEK TRANSPORTATION, INC., )
and JAKE RICHCREEK, Individually, )
Defendants )
PLAINTIFF'S MOTION TO COMPEL DISCOVERY RESPONSES
AND NOW, comes Plaintiff by and through its attorneys, Walters & Galloway, PLLC,
and files this motion to compel for the following reasons:
1. On January 29, 2014, plaintiff's counsel served written interrogatories and request
for production of documents upon counsel for defendant. A copy of those discovery requests are
attached hereto as Exhibits "A" and "B," respectively.
2. On March 12, 2014, counsel for Plaintiff wrote to defense counsel requesting the
status of his client's discovery responses. A copy of said letter is attached hereto as Exhibit "C."
3. To date, Defendant has failed to respond to any of Plaintiffs discovery responses.
4. Pursuant to Pa.R.C.P. 4006(a)(2), Defendant's responses to those discovery
requests were due thirty (30) days from January 29, 2014.
5. Plaintiff seeks an order pursuant to Pa.R.C.P. 4019(a)(1)(i), 4019(a)(1)(viii), and
4019(c)(5) compelling Defendant to answer Plaintiff's Interrogatories and Request for
Production of Documents.
WHEREFORE, Plaintiff respectfully asks that this Honorable Court to compel Defendant
within twenty (20) days to file full and complete answers to each of the interrogatories and
request for production of documents.
Respectfully submitted,
WALTERS & GALLOWAY, PLLC
By:
David R. Gallow
Counsel for Plain f
EXHIBIT "A"
David R. Galloway
Attorney I.D. No. 87326
WALTERS & GALLOWAY, PLLC
54 E. Main Street
Mechanicsburg, PA 17055
Telephone: (717) 697-4650
Counsel for Plaintiff
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO., )
Plaintiff )
) CIVIL ACTION--LAW
v. )
) DOCKET NO: 2012--6980
H J TOWING & RECOVERY, INC., )
a/k/a H & J, a Corporation, )
JAKE RICHCREEK TRANSPORTATION, INC., )
and JAKE RICHCREEK, Individually, )
Defendants )
PLAINTIFF'S FIRST SET OF INTERROGATORIES TO DEFENDANTS
Plaintiff PROGRESSIVE SERVICE DIE CO., by the undersigned attorney, requests that
Defendants, HJ TOWING & RECOVERY, INC., a/k/a H & J, a Corporation, JAKE
RICHCREEK TRANSPORTATION, INC., and JAKE RICHCREEK, Individually, answer
under oath the following interrogatories within thirty (30) days of service in accordance with Pa.
R.C.P. No. 4005 and 4006. These interrogatories are deemed to be continuing to the extent
provided in Pa. R.C.P. No. 4007.4.
I. INSTRUCTIONS AND DEFINITIONS:
Please follow these instructions and use the following definitions in answering these
.interrogatories. Any term or word that is not defined herein has its usual and customary
meaning.
a. Each of the following interrogatories shall be answered separately and fully in writing.
The answers shall be signed and verified by the person making them. Objections, if any, shall be
signed by the attorney making them.
b. Where knowledge or information in possession of a party is requested, such request
includes knowledge of the party's agents, employees, servants, officers, directors, accountants,
attorneys (unless privileged), or other persons acting or purporting to act on behalf of the party to
whom these interrogatories are addressed. You must make inquiries of your agents, employees,
etc., whenever such inquiry is necessary to enable you to answer these interrogatories completely
and accurately.
c. When, after a reasonable and thorough investigation, you are unable to answer any
interrogatory, or any part thereof, because of lack of information available to you, specify in full
and complete detail the reason the information is not available to you and what has been done to
locate such information. In addition, specify what knowledge or belief you have concerning the
unanswered portion of the interrogatory and set forth the facts upon which such knowledge or
belief is based.
d. Where an interrogatory does not specifically request a particular fact, but where such
fact or facts are necessary to make the answer to the interrogatory either comprehensible, or
complete, or not misleading, you are requested to include such fact or facts as part of the answer,
and the interrogatory shall be deemed specifically to request such fact or facts.
e. If, in answering these interrogatories, you encounter any ambiguity, in a question,
instruction, or definition, set forth the matter deemed ambiguous and the interpretation you used
in answering.
f. If you assert a privilege, work product immunity, or decline to provide an answer on
the basis of some other objection, please:
i. identify and describe the document or communication in question;
ii. describe the basis for the asserted privilege or objection;
iii. identify every person to whom the document was sent, or every person
present when the communication was made;
iv. identify the present custodian of the document, if any.
Include sufficient facts for the court to make a full determination of whether the claim or
objection is valid.
g. Unless otherwise indicated, these interrogatories refer to the time, places and
circumstances of the occurrences mentioned or complained of in plaintiffs complaint and
Defendants' answer, new matter, and counterclaim.
h. The pronoun "you" refers to the party to whom these interrogatories are addressed, the
party's agents, representatives and, unless privileged, the party's attorneys. Additionally, the
pronoun "you" refers to each parent, predecessor, subsidiary, affiliate, and each present and
former officer, employee, agent, representative, and attorney of a corporate or other business
entity.
i. The word "person" means any natural individual in any capacity whatsoever or any
entity or organization, including divisions, department, or other units therein, and shall include
without limitation a public or private corporation, partnership, joint venture, voluntary
unincorporated association, organization, proprietorship, trust, state, government agency,
commission, bureau, or department.
j. The term "document" means any medium in which information or intelligence can be
recorded or retrieved, and includes, without limitation, the original or copy, regardless of origin
and location, of any book, pamphlet, periodical, letter memorandum, (including any
memorandum or report of a meeting or conversation), invoice, bill, order, form, receipt, financial
statement, accounting entry, diary, calendar, telex, telegram, cable, report, record, contract,
study, handwritten note, draft, working paper, chart, paper, print, laboratory record, drawing
sketch, graph, index, list, tape, photograph, microfilm, data sheet, or data processing card, or any
other written, recorded, transcribed, punched, taped, filmed, or graphic matter, however
produced or reproduced, which is or was in your possession, custody or control.
k. The term "communication" means any oral or written utterance, notation, or statement
of any nature whatsoever between or among two or more persons, by or to whomsoever made,
and including without limitation correspondence, documents, conversations, dialogues,
discussions, interviews, consultations, agreements, and other understandings.
1. The word "identify," or words of similar import, when used in reference to:
i. a natural individual, requires you to state his or her full name, and present or
last known residential address, business address, and telephone number;
ii. a corporation, requires you to state its full corporate name, and any names
under which it does business, its state of incorporation, the address and telephone number of its
principal place of business, and the address and telephone number(s) of all its officers;
iii. a business other than a corporation, requires you to state the full name or style
under which the business is conducted, its business addresses, its telephone numbers, and the
identity of the persons who own, operate, and control the business;
iv. a document, requires you to state its title, its date, the names of its authors and
recipients, and its present or last known location and custodian, including any documents
prepared subsequent to any time period;
v. a commuication, requires you, if any part of the communication was written,
to identify the documents which refer to or evidence the communication, and, if any part of the
communication was non- written, to identify the person participating in or otherwise present
during all or part of the communication, and describe the substance thereof.
m. When an interrogatory requires you to "describe," to "state the basis of," or to "state
the facts" on which you rely to support a particular claim, contention, or allegation, state in your
answer each and every fact and identify each and every communication or document which you
contend supports, refers to, or evidences such claim, contention, or allegation. When an
interrogatory requires you otherwise to describe or state the facts relating to any particular set of
circumstances, act, event, transaction, occurrence, meeting, purchase, sale, agreement, contract,
venture, relationship, conversation, representation, communication, or other item of information,
state briefly in your answer the facts (including dates and places) relating to such transaction,
occurrence, relationship, set of circumstances, etc.; identify any persons who are or were parties
thereto or have knowledge thereof; and identify any communications and documents relating to
or evidencing such transaction, occurrence, relationship, set of circumstances, etc.
INTERROGATORIES
1.
(a) Identify each Defendant's officers and directors at the present time and at all times
material to the complaint and the answer, new matter and counterclaim, with the dates of their
terms of office.
ANSWER:
(b) Describe the nature of each of Defendant's businesses at the present time and at all
times material to the complaint and the answer, new matter, and counterclaim.
ANSWER:
2. List the names, titles and business address(es) of all persons who answered or assisted in
answering these interrogatories.
ANSWER:
3. State the address(es) for each Defendant.
ANSWER:
4. If any Defendant is, or was between July 15, 2009, through January 31, 2013, covered by
any type of insurance, including excess of umbrella insurance, state the following with respect to
each such policy:
(a) The name of the insurance carrier which issued the policy.
(b) The named insured under each policy and the policy number;
(c) The type of each policy and the effective dates;
(d) The amount of coverage provided for injury to each person, for each occurrence
and in the aggregate for each policy;
(e) Each exclusion, if any, in the policy which is applicable to any claim thereunder
and any reasons why you or the carrier claim the exclusion is applicable.
ANSWER:
5. State whether any Defendant has any photographs or diagrams reflecting any of the
allegations referenced in the Complaint or Defendants' Counterclaim, and if so, for each such
photograph or diagram state:
(a) a description of what it depicts;
(b) the name, current address, and occupation of the person who took it or made it;
(c) the date, time and place it was taken or made;
(d) the name and current address of the person who has custody of it.
ANSWER:
6. Identify each person who has any knowledge concerning the allegations raised in the
Complaint or Counterclaim.
ANSWER:
7. Identify each person you intend to call as a non - expert witness at the trial of this case and
for each person identified state your relationship with the witness and the substance of the facts
to which the witness is expected to testify.
ANSWER:
8. Identify each expert you intend to call as a witness at the trial of this matter and for each
expert state:
(a) The subject matter on which the expert is expected to testify; and
(b) The substance of the facts and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion. (You may file as your Answer to this
Interrogatory the report of the expert or have the Interrogatory answered by our expert.)
ANSWER:
9. Identify all exhibits and /or documents that you intend to use at trial of this matter and
state whether they will be used during the liability or damages portion of the trial, and /or during
opening and /or closings.
ANSWER:
10. If you intend to use any admission of a party at trial, identify such admission.
ANSWER:
11. During Defendants' tenancy, what documents did Defendants send to Plaintiff
concerning any defects or problems with the Premises?
ANSWER:
12. Did any Defendant inform Plaintiff of Defendants' intent to break the lease? If so, please
specify the date, to whom that intent was made and how it was relayed.
ANSWER:
13. Did Defendants pay all required utility bills, fees and costs stipulated by the terms of the
lease? If not, please explain why not.
ANSWER:
14. Defendants allege it paid real estate taxes on the Premises. Please identify when
Defendants paid those taxes, the amount paid, and the check number(s) associated with that
payment.
ANSWER:
15. What date did Defendants return the keys to the Premises to Plaintiff?
ANSWER:
Respectfully submitted,
WATT - ' _ • WAY, PLLC
David R. Galloway #: 326
Counsel for Plaintiff
EXHIBIT "B"
David R. Galloway
Attorney I.D. No. 87326
WALTERS & GALLOWAY, PLLC
54 E. Main Street
Mechanicsburg, PA 17055
Telephone: (717) 697 -4650
Counsel for Plaintiff
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO.,
Plaintiff
CIVIL ACTION - -LAW
v.
DOCKET NO: 2012 - -6980
H J TOWING & RECOVERY, INC.,
a/k/a H & J, a Corporation,
JAKE RICHCREEK TRANSPORTATION, INC.,
and JAKE RICHCREEK, Individually,
Defendants
PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
& THINGS TO DEFENDANTS
You are hereby requested to produce, pursuant to Pennsylvania Rule of Civil Procedure
4009, the following documents, writings, photographs or tangible things. Said documents, .
writings, photographs, or tangible things are to be produced, for the purpose of inspecting,
photographing and copying, at the law offices of WALTERS & GALLOWAY, PLLC, 54 E.
Main St., Mechanicsburg, PA 17055, on or before thirty (30) days from the date of service of this
Request for Production:
1. Any and all correspondence notes, memoranda, electronic communications or
other documents which in any way discuss, or pertain to the lease of the Premises from July 15,
2009, through January 31, 2013.
2. Any and all correspondence notes, memoranda, electronic communications,
invoices, proposals or any other documents which in any way discuss or pertain to any of the
improvements or repairs Defendants allege they performed to the Premises from July 15, 2009,
through January 31, 2013.
3. Copies of each and every payment you made to the Cumberland County Tax
Claim Bureau, tax collector or any other entity related to the Premises' real estate taxes.
4. A copy of each and every check any Defendant wrote to Plaintiff. Please provide
the reason for said payment (i.e. rent, purchase of generator, etc.).
5. Copies of each and every document which you have identified in your answers to
Plaintiff's Interrogatories to Defendants.
6. Each and every document whose identification was requested by Plaintiff in
Plaintiff's Interrogatories to Defendants.
Respectfully submitted,
WALTERS & GALLOWAY, PLLC
;40-1110
David R. Galloway # 326
Counsel for Plaintif
David R. Galloway
Attorney I.D. No. 87326
WALTERS & GALLOWAY,
54 E. Main Street
Mechanicsburg, PA 17055
Telephone: (717) 697-4650
t.
,
r:ILED-OFFICE
(iF, THE PROTHONOTAFC.,"
PLLC 2014 JAN 30 ikti 815
CUMBERLAND COUNTY
PENNSYLVANIA
Counsel for Plaintiff
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO., )
Plaintiff )
)
v. )
)
H J TOWING & RECOVERY, INC., )
a/Ida H & J, a Corporation, )
JAKE RICHCREEK TRANSPORTATION, INC., )
and JAKE RICHCREEK, Individually, )
Defendants )
CIVIL ACTION--LAW
DOCKET NO: 2012--6980
CERTIFICATE OF SERVICE
I, David R. Galloway, certify I served a copy of Plaintiff's First Set of Interrogatories to
Defendants and Plaintiff's First Request for Production of Documents to Defendants, on this
date, upon counsel for Defendants by First-Class Mail, Postage Pre-Paid, addressed as follows:
Date: January'1 2014
Douglas G. Miller, Esquire
IRWIN & McKNIGHT, P.C.
60 W. Pomfret St.
Carlisle, PA 17013
Respectfull submitted,
By:
David R. Galloway
Counsel for Plaintiff
EXHIBIT "C"
WALTERS & GALLOWAY, PLLC
54 East Main Street, Mechanicsburg, PA 17055
Phone: 717-697-4700 Fax: 717-697-9395
Murrel R. Walters Ill David R. Galloway
MurrelPwaltersgalloway.com DavidPwaltersaalloway.corn
March 12, 2014
Douglas G. Miller, Esquire
IRWIN & McKNIGHT, P.C.
60 West Pomfret Street
Carlisle, PA 17013
Re: Progressive Service Die Co. v. H J Towing & Recovery Inc.,
a/k/a H & J, a Corporation, Jake Richcreek Transportation, Inc., and
Jake Richcreek, Individually
Docket No. 12-6980 — Cumberland County, C.C.P.
Dear Attorney Miller,
On or about January 29, 2014, we wrote to you enclosing Plaintiff's First Set of
Interrogatories to Defendants and Plaintiff's First Request for Production of Documents
& Things to Defendants. As of the date of this letter, no response has been received and
the deadline to respond to those items is long past due.
To avoid our filing a Motion to Compel, please forward your client's responses
within ten (10) days from the 'date of this letter. Should you need additional time, please
contact me.
Very truly yours,
DRG/sh
cc: Mr. George France (via electronic mail)
David R. Galloway
Attorney I.D. 87326
WALTERS & GALLOWAY, PLLC
54 E. Main St.
Mechanicsburg, PA 17055
Telephone: 717-697-4650
Facsimile: 717-697-9395
Counsel for Plaintiff
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO.,
Plaintiff
)
)
)
CIVIL ACTION - LAW
v. )
) DOCKET NO: 2012-6980
H J TOWING & RECOVERY, INC., )
a/k/a H & J, a Corporation, )
JAKE RICHCREEK TRANSPORTATION, INC., )
and JAKE RICHCREEK, Individually, )
Defendants )
CERTIFICATE OF SERVICE
The undersigned does hereby certify that I served a copy of the foregoing Plaintiff s
Motion to Compel Answers to Interrogatories and Request for Production of Documents by
Regular Mail, Postage Pre-Paid, on this I rtrIN day of April, 2014, addressed as follows:
Douglas G. Miller, Esquire
IRWIN & MCKNIGHT, P.C.
60 West Pomfret Street
Carlisle, PA 17013
Respectfully submitted,
WALTERS & GALLOWAY, PLLC
By:
David R. Galloway
Counsel for Plaintiff
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
PROGRESSIVE SERVICE DIE CO., )
Plaintiff
v.
)
)
)
CIVIL ACTION - LAW
) DOCKET NO: 2012-6980
H J TOWING & RECOVERY, INC., )
a/k/a H & J, a Corporation, )
JAKE RICHCREEK TRANSPORTATION, INC., )
and JAKE RICHCREEK, Individually, )
Defendants )
ORDER
AND NOW, this D day of I\ 13
, 2014, upon consideration of
Plaintiff's Motion to Compel, it is ORDERED that within twenty (20) days Defendant shall file
full and complete answers to Plaintiff's Interrogatories and Request for Production of
Documents.
BY THE COURT:
Distribution List:
bar-Plaintiff:
..-David R. Galloway, Esquire
WALTERS & GALLOWAY, PLLC
54 E. Main St.
Mechanicsburg, PA 17055
For Defendants:
,./nouglas G. Miller, Esquire
IRWIN & MCKNIGHT, P.C.
60 West Pomfret Street
Carlisle, PA 17013
2,42//y
N\L
J.
PROGRESSIVE SERVICE DIE CO.
v.
: IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
•
NO. 2012 — 6980 CIVIL TERM c `7'
rn co
CIVIL ACTION — LAW
�r—
JURY TRIAL DEMANDED * r_ -a
A
DEFENDANT'S ANSWER TO PLAINTIFF'S MOTION TO COMPEIT-:
DISCOVERY RESPONSES
H J TOWING & RECOVERY, INC.,
a/k/a H & J, a Corporation, and
JAKE RICHCREEK, Individually,
Defendants.
AND NOW this 20th day of May, 2014, comes the Defendants, H J Towing & Recovery,
Inc. and Jake Richcreek, by and through its attorneys, Irwin & McKnight, P.C. and respectfully
files this Answer to the Plaintiff's Motion to Compel, and pursuant to the Order of Court dated
April 28, 2014, and in support thereof aver as follows:
1. The averments of fact contained in paragraph one (1) of the Motion are admitted.
2. The averments of fact contained in paragraph two (2) are admitted.
3. The averments contained in paragraph three (3) are denied as stated. It is
admitted that Defendants required additional time to complete their responses, but the remaining
averments are specifically denied. By way of further answer, Defendants have provided legal
counsel for Plaintiff with complete and substantive responses to Plaintiffs discovery requests.
4. The Rule of Civil Procedure referenced in paragraph four (4) speaks for itself and
therefore no response is required.
5. The Rule of Civil Procedure referenced in paragraph five (5) speaks for itself and
therefore no response is required. By way of further answer, Defendants have provided legal
counsel for Plaintiff with complete and substantive responses to Plaintiffs discovery requests.
WHEREFORE, Defendants respectfully request that this Honorable Court enter an
Order denying any further relief requested by the Plaintiff or its legal counsel.
Dated: May 20, 2014 By:
2
Respectfully Submitted,
IRWIN & McKNIGHT, P.C.
Doug as G. iller, Esquire
Supreme Court ID No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendants
CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy
of the foregoing document upon the persons indicated below by first class United States mail,
postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
Date: May 20, 2014
DAVID R. GALLOWAY, ESQUIRE
54 EAST MAIN STREET
MECHANICSBURG, PA 17055
IRWIN & McKNIGHT, P.C.
Douglas G Miller, Esquire
Supreme Court I.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Attorney for Defendants