HomeMy WebLinkAbout04-5504
Thomas 1. W.:h.:r. Esquir.:
Attorney 1.0. 1'\,). 5S853
GOLDBERG ~A'r/\rANI'C
320 Market Street
P. O. Box 1268
Harrisburg, PA 17111~-1 ~t,K
(717)234-4161, (717) 23-1--1161 U:,cSlmlkl
Counselfor Ph,,""I!'
HERRE BROS., INC
and R.DJ.AM., L.P.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
No OLl - K~C>V
CIO'll'--r'Ln-"'l
v.
CINEMAGIC
2250 Millennium Way
Enola, PA 17025
Defendant
NOTICE
YOll HAVE BEEN SUED IN COURT If you wish to defend against the claims set
forth in the following pages, you must take action within t\\enty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set fOl1h 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 CouI1 without further notice for any money clai med in the Complaint or for
any other claim or relief requested by the Plaintiff You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD O:\E, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT \VI-IERE YOU CAN GET LEGAL HELP,
Lawyer Referral Service
Cumberland County' Bar Association
:2 Liberty A venue
Carlisle, PA 17013
717-249-3166
Thomas 1. Weber. Esquire
Attorney J.D. "io. 58853
GOLDBERG K.-\TZ~I.-\N. l' C
320 Market Street
P. O. Box 1268
Harrisburg. PAl 711 18- J}6X
(717) 234-4161. (717) c3..f-..f161 (facSI 1111 Ie I
Counselfor PIOII1III(
HERRE BROS., INC.
and RD.J.AM., L.P.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
No.
CINEMAG 1 C
2250 Millennium Way
Enola, PAl 7025
Defendant
NOTICIA
Le han demand ado a usted en la corte. Si listed quiere defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene viente (20) dias de plaza al partir de la fecha de
la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 pOl'
abogado y archival' en la corte en forma escrita SllS defensas 0 SllS objectiones alas demandas en
contra de su persona. Sea adisado que si listed no se defiende, la sin previa aviso 0 notificacion
y pOl' eualquier quja 0 puede perder dinero 0 sus p1'Opiedades 0 ot1'Os derechos importantes para
usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATArvIENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,
V AY A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DlRECCION SE
ENCUENTRA ESCRIT A ABAJO PARA r\ VERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Lawyer Referral Service
Cumberland County Bar Association
:2 Liberty Avenue
Carlisle, PA 170 13
717-249-3166
Thomas 1. Wchcr. bquirc
Attorney J.D. 1'\0. 5RR53
GOLDBERG K-\TI:MAN. l' ('
320 Market Street
P.O Box 1268
Harrisburg, PA 171f1R-1 :C6R
(717) 234-4161. l7 I 7) 23..-..161 (facSimile)
Counsel for Plaintl!)'
HERRE BROS., INe.
and R.D.J.A.M., L.P.
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
No.
04 - SSDj
C.iuL ~~
CINEMAGIC
2250 Millennium Way
Enola, P A ] 7025
Defendant
COMPLArNT
1. Plaintiff R DJ.A. M, L P. is a limited partnership organized and existing under
the laws of the Commonwealth of Pennsylvania with a principal place of business at 4421 Valley
Road, Enola, Pennsylvania 17025-1477.
2. Plaintiff Herre Bros. Inc. is a corporation dually organized and existing under the
laws of the Commonwealth of Pennsylvania with a principal place of business at 4417 Valley
Road, Enola, PA 17025.
3. Defendant Cinemagic is believed to be a corporation dually organized and
existing under the laws of the Commonwealth of Pennsylvania with a principal place of business
identified as 2250 Millennium Way, Enola, P A 17025.
4. Pursuant to a Sales Agreement dated April 13, 2004, Plaintiff R.D.lA.M., LP.
sold to Cinemagic, a parcel ofland comprising of approximately 1.12 acres. See Sales
Agreement attached hereto as Exhibit "A"
5. An Addendum to the Sales Agreement was executed on or about May II, 2004.
See Addendum attached hereto as Exhibit "B".
6. Defendant purchased the property with the intention of constructing a new office
building for its use on the same.
7. The parcel of land purchased by Defendant is contiguous to other property owned
by R.D.J.A.M., LP and Herre Bros, Inc.
8. The principal owner of Herre Bros, Inc. is also a principal in R.D.J.A.M., LP.
9. Plaintiff Herre Bros., Inc. is an electrical/mechanical, HV AC contractor with over
90 years of experience in the Central Pennsylvania area.
10. Due to the close proximity of Defendant's anticipated new ofTice building, it was
of interest to the Plaintiffs that companies competing with Herre Bros, lnc would not have the
opportunity of using Defendant's new construction site as a parcel upon which competitors of
Herre Bros., Inc. could do business and stage their advertising.
11. As a result, PlaintiffR.D.J.A.M., LP agreed to reduce the purchase price of the
real estate in exchange for Defendant's agreement to utilize the services of Plaintiff Herre Bros.,
Inc. for the mechanical and electrical trades in the construction of Defendant's new building.
See Section E of Special Clauses to Agreement of Sale attached hereto as Exhibit A. ("It is the
Buyers intent to contract with Pyramid Construction Services to build a new facility, who in turn
will utilize Herre Bros, Inc. for mechanical/electric trades for a reasonable cost")
.2
12. At the time Defendant agreed to utilize the services of Herre Bros., Inc.,
Defendant knew of the association between Plaintiffs and further knew Plaintiff Herre Bros., Inc.
utilized union labor.
13. Defendant's selected contractor, Pyramid Construction, was willing to utilize the
services of Herre Bros., Inc.
14. Following closing on the real estate, Defendant's general contractor contacted
Herre Bros., Inc. for purposes of initiating the construction process.
15. As a result, Herre Bros, Inc. prepared technical design drawings for the
mechanical and electrical components of Defendant's building and provided an estimate of
$138,360.00 for completion of the electrical and mechanical component of the project.
16. Despite contractually agreeing to utilize the services of Herre Bros., Inc.,
Defendant has now refused to do so in breach of the contract.
COUNTJ
17. Paragraphs 1 through 16 are incorporated herein as though set forth in their
entirety.
18. Defendant agreed to utilize the services of Herre Bros, Inc. in the construction of
its building.
19. In exchange for this agreement, Plaintiff, RD.JAM., LP reduced the purchase
price of the real estate by $ 16,940 00
20. Defendant has now breached its contract with RD.JAM, L.P. by refusing to use
Herre Bros" Inc.
,
.'
21. But for its promise to utilize Herre Bros. Inc., PlaintiffRDJ.A.M. would not
have reduced the sale price for the parcel ofland.
WHEREFORE, R.D.lA.M., LP. demands judgment in its favor and against Defendant
in an amount in excess of $15,000 plus interest and costs, which amount does not exceed the
limit for compulsory arbitration.
COUNT IJ
22. Paragraphs 1 through 21 are incorporated herein as though set forth in their
entirety.
23. Herre Bras, Inc. \Vas a third party beneficiary of the contractual provisions
governing mechanical and electrical services between R.DJA.M., LP and Cinemagic.
24. Herre Bros, Inc. expended time and energy in preparing design drawings and an
estimate for the mechanical and electrical services.
25. Defendant has breached its contractual agreement to use Here Bros. Inc.
26. As a result of Defendant's breach, Herre Bros, Inc. has been improperly deprived
of its profit and overhead on the job totaling $ 24,087.46.
~
WHEREFORE, Plaintiff Herre Bros, Inc. demands judgment in its favor and against
Defendant in an amount in excess of $20,000 plus interest and cost which amount does not
exceed the amount of compulsory arbitration.
Respectfu II y submitted,
Date: IOlt~1 01
7: KATZMAN, ~c
By J11ttM~ ~ r--
Thom~.s ,J. W eber, Esq~~re
Arrorne), J.D. No. 588__,
320 !\1arket Street
P.O Box 1268
Harrisburg, P A 17108-1268
Telephone (717) 234-4161
Attorneys for PlaintitT
::ODMA\PCDOCS\DOCS\I095131\
:1
RECYCLED @
i tit -.b; -f- 1\
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,
AGREEMENT FOR THE SALE OF COMMERCIAL REAL ESTATE
This form I'ecommended and approved for, but not restricted 10 use by, the members of the Pennsylvania Association of REAL TORS@ (P ARl.
AlS-C
SELLER'S BUSINESS RELATIONSHIP WITH PA LICENSED BROKER
BROKER (Company) Landmark C01l1l\lercial Realty, Inc. PHONE ('717) 731-1990
ADDRESS 20 Erford Road, Suite 215, Lemoyne, PA 17043 FAX (717)731-8765
BROKER IS THE AGENT FOR SELLER. Designated Agent(s) for Seller, if applicable: Jeremy Shyk and Tom Posavec
OR
Bl'olw' is NOT the Agent for Seller and is alan: 0 AGENT FOR BUYER 0 TRANSACTION LICENSEE
BUYER'S BUSINESS RELATIONSHIP WITH PA LICENSED BROKER
BROKER (Company) Landmark C01l1l\lercial Realty, Inc.
ADDRESS 20 Erford Road, Suite 215, Lemoyne, PA 17043
BROKER IS THE AGENT FOR BUYER. Designated Agent(s) for Buye.', U applicable:
OR
BI'oltel'ls NOT the Ageut fOI' Buyel" RIId is alnu: 0 AGENT FOR SELLER ~ SUBAGENT FOR SELLER 0 TRANSACTION LICENSEE
PHONE (717) 731-1990
FAX (717)731-8765
Wheu tile same B."oker is Ageut for Seller aud Ageut for Buyer, BI'oker is a Dual Ageut. All of Broker's IIceusees al"e nlso Dunl Agents UNLESS
thcrc are separate Deslguated Agents for Buyer aud Seller. If the same Licensee Is designated for Seller and Buyer, the Licensee Is a Dunl Agent.
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l. THIS AGREEMENT, dated April 13. 2004
SELLER(S): R.D.J.A.M. Limited. Partnership clo Richard. McBride
is between
, called "Seller," and
BUYER(S): Cinemaaic andlor Assigns clo Louise Hanley
, called "Buyer."
2. PROPERTY. Seller hereby agrees to sell and convey to Buyer, who hereby agrees to purchase:
ALL THAT CERTAIN lot or pie<:e of ground with buildings and improvements thereon erected, ifany, known as:
Tract #2 Lot #6. App~ox. 1.12 Ac~es, Millennium Way, Pv~amid Business Park. Eno1a.
(See Attached Plan)
in the Township of Hampden County of Cumbe~land
Commonwealth ofPennsylvlInia, Zip Code 17025
Identification (e.g., Tall.1D #j Parcel #j Lot, Blockj Deed Book, Page, Recording Date)
P.l\.
3. TERMS (10-01)
(A) Purchase Price lOa. 500 . 00
which will be paid to Seller by Buyer as follows:
(I) Cash or check at signing this Agreement:
(2) Cash or check within 3 days of the execution of this Agreement:
(3)
(4)
(5) Cash, cashier's or certified check at time of settlement:
U.S. Dollars
(B)
$
$
$
$
$
TOTAL $
Deposits paid on account of purchase price to be held by Broker for Seller, unless otherwise stated here:
5.000.00
103.500.00
108.500.00
(C) Seller's written approval on or before: April 15. 2004
(D) Seltlement to be on June 15. 2004 ,or before if Buyer and Seller agree.
(E) Conveyance from Seller will be by fee simple deed of special warranty unless otherwise stated here:
(F) Payment of transfer taxes will be divided equally between Buyer and Seller unless otherwise stated here:
(0) At time of settlement, the following will be adjusted pro-rata on a daily basis between Buyer and Seller, reimbursing where applicable:
taxes (see Notices and Information Regarding Tax Proration); rents; interest on mortgage assumptions; condominium fees, if any;
water and/or sewer fees, if any; together with any other lienable municipal service. The charges are to be pro-rated for the period(s)
covered: Seller will pay up to and including the date of settlement; Buyer will pay for all days following settlement, unless otherwise
stated here:
(H) Buyer shall reimburse Seller for the actual costs of any remaining heating, cooking or other fuels stored on the Property at the time of
settlement, unless otherwise stated here:
4. FIXTURES AND PERSONAL PROPERTY (1-00)
(A) INCLUDED in this sale and purchase price are all existing items permanently installed in the Property, free of liens, including
plumbing; HV AC equipment; lighting fixtures (including chandeliers and ceiling fans); and water treatment systems, unless otherwise
stated below" Also included:
(B) LEASED items:
(C) EXCLUDED fixtures and items:
5. SPECIAL CLAUSES:
(A) The following are part of this Agreement if checked:
o
o
o
o
-- . - -.... -. r"C'l'101\..lC! {11i' A. NV\~
5. Special Clauses (Continued):
This agreement is expressly contingent upon the following terms and conditions being met or waived or
this agreement shall become null and void and the deposit together with interest shall be returned to the
BUYER and neither BUYER or SELLER shall have any further obligation to the other. Each condition
will be deemed to have been satisfied by settlement or the otherwise indicated dates unless BUYER
notifies SELLER or SELLER'S agent to the contrary in writing on or before the indicated date:
A.
B.
D.
FEASIBILITY PERIOD: BUYER or BUYER'S agent shall have a period of thirty-five (35)
days from the date of the Agreement is fully executed to enter upon and investigate all aspects of
the property with out limitation. Included, but not limited to, soil and subsoil studies, including
core samples, environmental studies, engineering studies, land-use planning and feasibility
studies, access to utilities, access to highways or any other studies or inspections BUYER deems
necessary to determine the property meets the BUYER'S intended use to BUYER'S sole
satisfaction.
RIGHT TO TERMINATE: If BUYER determines, in BUYER'S sole discretion, not to acquire
the property for any reason, BUYER may, at its option, terminate by written notice to SELLER
on or before the expiration of the Feasibility Period set forth in Paragraph 5A above. Upon such
termination, the Deposit, and all accrued interest thereon, will be immediately returned t6
BUYER and BUYER will have no liability to SELLER hereunder so long as the termination
occurs prior to May 15,2004.
c.
FINANCING: BUYER to secure acceptable conventional financing to acquire and develop the
property for its intended use on/or before May 15,2004.
SHORT TERM LEASE: SELLER agrees to allow BUYER to lease up to 3,000 Sq. Ft. of
?f~ce .space ~t 2250.Millennium Way, Enola, PA at a rate of $15.75 per square foot plus
Jamtonal servIce. SaId lease shall begin no later than July 15, 2004 and shall continue until
completion and move-in by BUYER at BUYER'S new office building. Formal lease document
to be executed on or before May 1,2004.
E.
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6. .pOSSESSION (5-01) I
(A) Possession is to be delivered by deed, keys and: . I UNLESS
I Physical possession to vacant Property free of debris, with all structures broorn clean, at day and time of sett ement R
. . , AND/O
2. ~~~~:::~~a~~~~~:~~g lease(s), together with any security deposits and interest, at time of settlement, if Property is leased at the
execution of this Agreement or unless otherwise specified here:
Buyer will acknowledge existing lease(s) by initialing said lease.(s~ at time of~igning tbis A~r~ement if Property is leased. .
(B) Seller will not enter into any new leases, written extension of eXlstmg leases, If any, or additional leases for the Property Without
written consent of the Buyer.
7. DATESITIME IS OF THE ESSENCE (5-01) ., .
(A) The said date for settlement and all other dates and times referred to for the performance of any of the obhgatlons of thiS Agreement
are hereby agreed to be of the essence of this Agreernent. ..,
(B) For the purposes of this Agreement, number of days will be counted from the date of execution, by excludmg the day thiS Agreement
was executed and including the last day of the time period. .
. (C) "The date of settlement is not extended by any other provision of this Agreement and may only be extended by wnUen agreement of the
parties.
8. FINANCING CONTINGENCY (5-01)
o WAIVED. This sale is NOT contingent on financing.
[1g ELECTED
(A) This sale is contingent upon Buyer obtaining fUlancing as follows:
1. Amount ofloan $
2. Minimum Term years
3. Type ofloan
4. Buyer agrees to accept the interest rate as may be committed by the lender, not to exceed a maximum interest rate of
%.
(B) Within 10 days of the execution of this Agreement, Buyer will make a completed, written application to a responsible lender according
to the terms above. The Broker for Buyer, if any, otherwise the Broker for Seller, is authorized to communicate with the lender
for the purposes of assisting in the loan process. .
(C) 1. Upon rc:ceipt of a ~nancing commitment, Buyer Z'~~y'aeliver a co C'1:Ulnmitment to Seller.
2. FII~ancll1g commitment date Mav li, 2004U. _' . Unless
otherwise agreed to in writing by Buyer and Sell r, i n mmitment is not received by Seller by the above date, all deposit
monies paid on account of purchase price will be returned promptly to Buyer and this Agreement will be VOID. Buyer will be
responsible for any premiums for mechanics lien insurance and/or title search, or fee for cancellation of same, if any; AND/OR
any premiums for flood insurance and/or fire insurance with extended coverage, insurance binder charges or cancellation fee, if
any; AND/OR any appraisal fees and charges paid in advance to lender. &;
9. ZONING CLASSIFICATION (5-01) '"
Failure of this Agreernent to contain the zoning classification (excep t in cases where the property {and each parcel thereof, if subdividable ~j)~:
is zoned solely or primarily to permit single-family dwellings) will render this Agreement voidable at the option of the Buyer, and, ir V,
void~d, any d~posit;' tendered by the Buyer will be returned to the I}u~er without any r~quifement for court action. .' .r- ' -. D < . ,'.
ZonmgClasslficatlon: f,,:-.lVl/\,r'-,....t A('>/<' ___d(.'1'I111.ftw~ rtft'{"frn.rw..'t c..Ir(,(\ ISftrv
10. ZONING CONTINGENCY (5-01)
o WAIVED
[1g ELECTED. Within 30 days of the execution of this Agreement by all parties, Buyer will verify that the proposed use of the
Property as 5000-6000 SF Off. Bldg is permitted. In the event the proposed use is not permitted, Buyer' will, within the time
given for verification, notify Seller in writing that the proposed use of the Property is not permitted and Buyer will (check only one):
00 Option 1. Within the time for verifying the zoning classification, notify Seller, in writing, of Buyer's decision to proceed with
the purchase of the Property or terminate the Agreement. Should Buyer elect to terminate the Agreement all deposit monies paid
on account of purchase price will be returned promptly to Buyer and this Agreement will be VOID. Failure of Buyer to provide
written notice of Buyer's decision will constitute a WAIVER of this contingency and Buyer accepts the Property and
agrees to the RELEASE 'set forth in paragraph 25 of this Agreement.
o Option 2. Make application for approval (or variance/non-conforming use/conditional use/special exception) from
(municipality) to use the Property as
(proposed use).
(A) Such application wiII be made on or before .
(B) Buyer will pay for applications, legal fees, engineering and any other cost associated with obtaining approval.
(C) If the municipality requires the application to be signed by the current owner, Seller agrees to do so.
(D) If a final, unappealable approval is not obtained by
monies paid on account of purchase price will be returned promptly to Buyer and this Agreement will be VOID.
STATUS OF WATER (5-01)
Seller represents that this Property is served by:
[1g Public water
o On-site water
o Community Water
o None
o
Seller further warrants that this system(s) is/are fully paid for as of the execution date of this Agreement.
STATUS OF SEWER (5-01)
Seller represents that Property is served by:
[1g Public Sewer
o Community Sewage Disposal Systel~
o Off-Property Sewage Disposal System
L ~:u:-'u_1 ,,- T ~, ,"a",~".. T)i~hn~,,1 ~v"tp.m (See Sewa2e Notice I)
, all deposit
L COpy
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. .(B) ~eller and Buyer acknawledge that any Broker identified in this Agreeme~t: (l)dIS ~1:ice~s;~:a~;t~;~I~~~~~~~i~~sI~rn~t~a~~~:r~~;
canstructian engineering ar enviranmental matters; and (3) Has nat ma e an WI no . d' b t r 't d
conduct inv~stigatians af'the environmental canditian ar suitability af the Property ar any adjacent property, mclu mg ut no Iml e
to. those canditions listed in paragraph 13(A). .' . .,. . d' ~ d
(C) Seller agrees to. indemnify and to. hald Broker harmless fram and agaJ~~t all c1aJ~s, .d.emands, or hablhtles~ 11lclu 11l~ attarneys ees~,
caurt costs which arise from ar are related to the enviranmental candltlan ar sUltablhty of the Praperty pnar to, dunng, ar after Sell r s
accupatia; of the Property including withaut limitation any cand.itian listed in paragraph 13(A). .
(D) The provisions afthis Section will survive the performance ofthls Agreement.
NOTICES & ASSESSMENTS (5-01) . . . .
(A) Seller represents as af Seller's execution af this Agreement, that no. public impro.vement, candammJUm ar aw?er assa~Jatlan
assessments have been made against the Property which remain unpaid and that no. natlce by any gavernm.ent ar pU?hc authanty has
been served upan Seller or anyone an Seller's behalf, including natices relating to. vialatians afzaning, hau~11lg, bUlldmg, safety. ar fire
ardinances which remain uncarrected, and that Seller knaws af no. conditian that wauld canstitute vialatlan of any such ard1l1ances
which remains uncarrected, unless atherwise specified here:
(B) Seller knaws af no. other patential notices (including violatians) and assessments except as follaws:
(C) Any natice af impravements ar assessments received on or before the date of Seller's acceptance af this Agreement, unless
improvements cansist af sewer ar water lines nat in use, shall be the respansibility af Seller; any notices received thereafter shall be the
responsibility af the Buyer. .
(D) If required by law, Seller will deliver to. Buyer, an or befare settlement, a certificatian from the appropriate municipal department or
departments disclosing natice afany uncorrected vialatian o.fzaning, building, safety, ar fire ordinances.
(E) Buyer is advised that access to. a public raad may require issuance af a highway accupancy permit from the Department af
Transportatian.
TITLE, SURVEYS AND COSTS (1-00)
(A) The property is to. be canveyed free and clear of all liens, encumbrances, and easements, EXCEPTING HOWEVER the fallowing:
existing deed restrictions, histaric preservatian restrictians ar ardinances, building restrictions, ordinances, easements of raads,
easements visible upon the ground, easements of record, privileges or rights af public service companies, laJlds use restrictians
pursuant to. property enrallment in a preferential tax pragram if any; otherwise the title to the above described real estate will be gaad
and marketable and such as will be insured by a reputable Title Insurance Campany at the regular rates.
(B) In the event the Seller is unable to give a good and marketable title and such as will be insured by a reputable Title Insurance Campany
at the regular rates, as specified in paragraph I5(A), Buyer will have the option o.f: (I) Taking such title as Seller can give, with no
change to the selling price; ar (2) Being repaid all monies paid by Buyer to. Seller on account af purchase price and being reimbursed
by Seller far any costs incurred by Buyer for thase items specified in paragraph 15(C) and in paragraph 15(D) items (1), (2), (3), in
which case there will be no further liability ar abligatian on either of the parties hereto and this Agreernent will become VOID.
(C) Any surveyor surveys which may be required by the Title Insurance Campany ar the abstracting attarney, for the preparation af an
adequate legal description af the Property (ar the carrection thereof), will be secured and paid for by Seller. Hawever, any survey ar
surveys desired by Buyer ar required by the martgage lender will be secured and paid far by Buyer.
(D) Buyer will pay far the following: (I) Title search, title insurance and/ar mechanics lien insurance or fee for cancellatian af same, if
any; (2) Flo.od insurance, fire insurance with extended coverage, mine subsidence insurance, and cancellation fees, if any; (3) Appraisal
fees and charges paid in advance to mortgage lender, if any; (4) Buyer's custamary settlement casts and accruals.
COAL NOTICE
00 NOT APPLICABLE
o APPLICABLE. THIS DOCUMENT MAY NOT SELL, CONVEY, TRANSFER, INCLUDE OR INSURE THE TITLE TO THE COAL AND
RIGHTS OF SUPPORT UNDERNEATH THE SURFACE LAND DESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNERS
OF SUCH COAL MAY HAVE THE COMPLETE LEGAL RIGHT TO REMOVE ALL SUCH COAL AND IN THAT CONNECTION, DAMAGE
MA Y RESULT TO THE SURF ACE OF THE LAND AND ANY HOUSE, BUILDING OR OTHER STRUCTURE ON OR IN SUCH LAND. (This
notice is set forth in the rnanner provided in Section I af the Act af July 17, 1957, P.L. 984.) "Buyer acknawledges that he may nat be
obtaining the right af protection against subsidence resulting from caal mining aperatians, and that the praperty described herein may
be protected fram damage due to. mine subsidence by a private cantract with the owners of the econamic interests in the caal. This
acknowledgement is made for the purpase of camplying with the provisians of Sectian 14 of the Bituminaus Mine Subsidence and the
Land Canservation Act af April 27, 1966." Buyer agrees to. sign the deed fram Seller which deed will contain the afaresaid provisian.
TAX DEFERRED EXCHANGE (10-01)
00 NOT APPLICABLE
o APPLICABLE. In the event Seller wishes to. enter into. a deferred exchange far the Praperty pursuant to. Sectian 1031 of the Internal
Revenue Cade, Buyer agrees to. co. operate with Seller in connection with such exchange, including the executian af such documents as
may be reaso.nably necessary to conduct the exchange, pravided that there shall be no. delay in the agreed-to. settlement date, and that
any additianal costs associated with the exchange are paid salely by Seller. Buyer is aware that Seller anticipates assigning its interest
in this Agreement to. a third party under an Exchange Agreement and daes hereby consent to such assignment. Buyer shall nat be
abligated to take title to. any property other than the Praperty described in this Agreement. Seller shall indemnify and hald harmless
Buyer against any liability which arises or is claimed to have arisen from any aspect of the exchange transaction.
COMMERCIAL CONDOMINIUM (10-01)
00 NOT APPLICABLE
o APPLICABLE. Buyer acknowledges Ulat the candominium unit to be transferred by the terms af this Agreement is intended far
nonresidential use, and the Buyer may agree to. madify or waive the applicability af certain provisians af the Uniform Candominium
Act of Pennsylvania (68 Pa. C.S. ~3101 et. seq.).
RECORDING (5-01) This Agreement will nat be recarded in the Office of the Recorder af Deeds ar in any other affice ar place of public
record. If Buyer causes ar permits this Agreement to be recarded, Seller may elect to. treat such act as a breach afthis Agreement.
ASSIGNMENT (3-85) This Agreement will be binding upan the parties, their respective heirs, persanal representatives, guardians and
successars, and, to the extent assignable, on the assigns af the parties hereto.. It is expressly understaad, hawever, that the Buyer will nat
transfer or assign this Agreement withaut the written cansent afthe Seller.
DEPOSIT AND RECOVERY FUND (1-00)
. . . OoLL_ '"In. ..1__... ....f' ..."",.....lo.r""..::.nt u,ill h.,. h" I""3lt"h ""!:l~ht...rt~ nr C"prtifi".A ,...h...,...\r f)pnnC!itC! rPDa.rrl1pC!(! nr thp fnrm nf
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4. 21 . MAINTENANCE AND RISK OF LOSS (5-01) . . I d i t d
5 . (A) Seller will maintain the Property, and any personal property specified herein, in its present condltlO~, norma wear an t~ar expec e .
6 (B) Seller will prornptly notify the Buyer if, at any time prior to the time of settlement, all or any portion of the Property IS destroyed, or
7 damaged as a result of any cause whatsoever. . .'
8 (C) Seller wil\ bear risk of loss from fire or other causes until time of settlemen~. In the ev~nt.that d.amage to any propertY.I~cluded In tl.l1S
9 sale is not repaired or replaced prior to settlement, Buyer wil\.~ave the option. of rescmdmg thiS Agre~ment and receIVIng all ~ollles
.0 paid on account or of accepting the Property in its then condition together with the proceeds of any msuranc~ reco~ery obtamed ~y
~ 1 Seller. Buyer is hereby notified that he/she may insure his/her equitable interest in this Property as of the time thiS Agreement IS
~2 accepted.
~3 23. CONDEMNATION (5-01)
~4 Seller has no knowledge of any current or pending condemnation or eminent domain proceedings ~hat would affect the Property. If any
IS portion of the Property should be subject to condemnation or eminent domain procee?ings after ~he sig~ing of this Agreement: ~eller ~hall
16 immediately advise Buyer, in writing, of such proceedings. Buyer shall have the option to term mate thiS Agreement by provldmg wntten
n notice to Seller within fifteen (15) days after Buyer learns of the filing of such proceedings, in which case Seller shall return to Buyer all
18 money paid on account of the purchase price by Buyer. Buyer's failure to provide notice of termination within the time stated will
19 constitute a WAIVER of this contingency and all other terms of this Agreement remain in full force and effect.
50 24. WAIVER OF CONTINGENCIES (1-00)
51 In the event this Agreement is contingent on Buyer's right to inspect and/or repair the Property, Buyer's failure to exercise any of Buyer's
52 options specified in the contingency provision(s) within the time limits will constitute a WAIVER of that contingency and Buyer
53 accepts the Property and agrees to the RELEASE set forth in paragraph 25 of thili Agreement.
54 25. RELEASE (1-00) Buyer hereby releases, quit claims and forever discharges SELLER, ALL BROKERS, theh' LICENSEES,
55 EMPLOYEES, and any OFFICER or PARTNER of anyone of them and any other PERSON, FIRM, or CORPORATION who
56 may be liable by or through them, from any and all claims, losses or demands, including, but not limited to, personal injuries and
57 property damage and all ofthe consequences thereof, whether now known or not, which may arise from the presence of termites or
58 other wood-boring insects, radon, lead-based paint hazards, environmental hazards, any defects in the individual on-lot sewage
59 disposal system or deficiencies in the on-site water service system, or any defects or conditions on tbe Property. This release will
.60 survive settlement.
.61 26. REPRESENTATIONS (5-01)
:62 (A) Buyer understands that any representations, claims, advertising, promotional activities, brochures or plans of any kind made by Seller,
~63 Brokers, their licensees, employees, officers, or partners are not a part of this Agreement unless expressly incorporated or stated in this
~64 Agreement. It is further understood that this Agreement contains the whole agreement between Seller and Buyer and there are no other
~6S terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale.
~66 Furthermore, this Agreement will not be altered, amended, changed or modified except in writing executed by the parties.
!67 (B) It is understood that Buyer has inspected the Property before signing this Agreement (including fixtures and any personal
!68 property specifically scheduled herein), or has waived the right to do so, and has agreed to purchase it in its present condition
!69 unless otherwise s~ated in this Agreement. Buyer acknowledges that Brokers, tbeir licensees, employees, officers or partners
l70 have not lJ.1ade an independent examination or determination of the structural soundness of the Property, the age or condition
l71 of the components, environmental conditions, the permitted uses, or of conditions existing in the locale where all Property is
l72 situated; nor have they made a mecbanical inspection of any of the systems contained therein.
273 (C) Broker(s) may perform services to assist unrepresented parties in complying with the terms of this Agreement.
].74 (D) The headings, captions, and line numbers in this Agreement are meant only to make it easier to find the paragraphs.
275 27. DEFAULT (1-00)
276 Should Buyer:
277 (A) Fail to make any additional payments as specified in paragraph 3; OR
278 (B) Furnish false or incomplete information to Seller, Broker for Seller, Broker for Buyer, or the lender, if any, concerning the Buyer's
279 legal or financial status, or fail to cooperate in the processing ofthe loan application, which acts would result in the failure to obtain the
280 approval of a loan commitment; OR
281 (C) Violate or fail to fulfill and perform any other terms or conditions of this Agreement;
282 then in such case, Seller has the option of retaining all sums paid by Buyer, including the deposit monies, I) on account of purchase
283 price, or 2) as monies to be applied to Seller's damages, or 3) as liquidated damages for such breach, as Seller may elect, unless
284 otherwise checked below.
285 IX! Seller is limited to retaining sums paid by Buyer, including deposit monies, as liquidated damages.
286 If Seller elects to retain all sums paid by Buyer, including deposit monies, as liquidated damages, Buyer and Seller will be released
287 from further liability or obligation and this Agreement will be VOID.
288 28. CERTIFICATION OF NON-FOREIGN INTEREST (10-01)
289 0 Seller IS a foreign person, foreign corporation, foreign partnership, foreign trust, or foreign estate subject to Section 1445 of the
290 Internal Revenue Code, which provides that a transferee (Buyer) of a U.S. real property interest must withhold tax if the transferor
291 (Seller) is a foreign person.
292 IX! Seller is NOT a foreign person, foreign corporation, foreign partnership, foreign trust, or foreign . estate as defined by the Internal
293 Revenue Code, or is otherwise not subject to the tax withholding requirements of Section 1445 of the Internal Revenue Code. To
294 inform Buyer that the withholding of ta.'I. is not required upon the sale/disposition of the Property by Seller, Seller hereby agrees to
295 furnish Buyer, at or before closing, with the following:
296 0 An affidavit stating, under penalty of perjury, ~e Seller's U.S. taxpayer identification number and that the Seller is not a foreign
297 person.
298 0 A "qualifying statement," as defined by statute, that tax withholding is not required by Buyer.
299 0 Other:
300 Seller understands that any documentation provided under this provision may be disclosed to the Internal Revenue Service by Buyer, and
301 that any false statements contained therein could result in punishment by fine, imprisonment, or both.
302 29. ARBITRATION OF DISPUTES (1-00) Buyer and Seller agree to arbitrate any dispute between them that cannot be amicable resolved.
303 After written demand for arbitration by either Buyer or Seller, each party will select a competent and disinterested arbitrator. The two so
304 selected will select a third. If selection of the third arbitrator cannot be agreed upon within 30 days, either party may request that selection
305 be made by a judge of a court of record in the county in which arbitration is pending. Each party will pay its chosen arbitrator, and bear
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I
2
3
4
5
6
7
.8
:9
iO
II
12
13
14
35
36
37
38
39
40
41
42
43
44
-45
;46
147
148
149
l50
351
352
353
354
355
356
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362
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364
365
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367
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386
387
388
389
31. .GOVERNING LAW (10~01) .' aI h fP I'
This Agreement shall be construed and interpreted m accordance with the laws of the Common we t 0 ennsy vama.
32 NOTICE BEFORE SIGNING (5-01) .' h I I d 1 flI ts of this
. Bu er and Seller acknowledge that Brokers have advised them to consult and retam experts concermn~ t e .ega an ax ~ ~c
A ~eement and the completion of the sale, as well as the condition and/or legality of the Property, .m~ludmg, b~t ?ot limited lo, U~e
pr~perty's improvements, equipment, soil, tenancies, title ~d envir?nmental aspects. Re~urn by faCSimile transmiSSIOn (FAX) of thiS
Agreement, and all addenda, bearing the signatures of all parties, constitutes acceptance of thiS Agreement.
33. ~~~~~~ requirements under the provisions of this Agreement or by application of statutory or commo~ law will be addr~ssed to the
appropriate party, at the addresses listed below via any means of delivery as mutually agreed upon by the parties and stated here. '.
If to Seller:
With a copy to:
Ifto Buyer:
With a copy to:
00 Buyer has received the Consumer Notice as adopted by the State Real Est~te Commission at 49 Pa. Code ~35.336.
o Buyer has received a statement of Buyer's estimated closing costs before signing this Agreement.
o Buyer has received the Deposit Money Notice (for cooperative sales when Broker for Seller is holding deposit money) before
signing this Agreement.
Buyer acknowledges receiViig copy of this AFJeerrJn; a~,the time o:';~1 !f
WITNESS/ATIEST '-----IS. - 61>1' BUVrc,l,ta ' 9' DATE
BUYER(S) NAME Ci aCJ.,~:~/or Ass~ans c/o LouiJ" Hfln1 PY ..... SSrrl#
Mailing Addr:ess
Phone #s
E~Mail
I.( II L/ /0 .;
FAX#
WITNESS/A TTEST
BUYER
DATE
BUYER(S) NAME
Mailing Address
Phone #s
E-Mail
88rn #
FAX#
WITNESS/A TTEST
BUYER
DATE
BUYER(S) NAME
Mailing Address
Phone #s
E-Mail
ssm #
FAX#
o Seller bas received tbe Consumer Notice as adopted bytbe State Real Estate Commission at 49 Pa. Code ~35.336.
o Seller has received a statement or Seller's estimated closing costs before signing this Agreement.
VOLUNTARY TRANSFER OF CORPORATE ASSETS (if applicable): The undersigned acknowledges that he/she is authorized by the
Board of Directors to sign this Agreement on behalf of the Seller corporation and that this sale does not constitute a sale, lease, or
exchange of all or substantially all the property and assets of the corporation, such as would require the authorization or consent of the
shareholders pursuant to 15 P.S. ~ BU.
SELLER'S ACCEf.'fANCE: Seller hereby ~ts-.pte above contract this (date) ~t:i!-~ tl 0 CJ Y
WITNESS~EST \.... X_~'(tit....- SELLE~~C-----... DATE y~.s-~V
SELLER(S)NAMER.D.J.A.M. Li.1nited Partnership c/o Richrlrn McBride ssrrI#
Mailing Address
Phone #s
E-Mail
FAX#
WITNESS/A TTEST
SELLER
DATE
SELLER(S) NAME
Mailing Address
Phone #s
E-Mail
SSfTI#
FAX#
~"H .. UD
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NOTICES AND INFORMATION
INFORMATION REGARDING TAX PRORATION
For ur oses of prorating real estate taxes, the "periods covered" by the tax bills are as follows: for ~Il counties and municipalities in
pem~YI~ania, and for the Philadelphia, Pittsburgh, and Scranton school districts, the tax bills are for the penod January 1 to December 31. For
all other school districts, the period covered by the tax bill is July 1 to June 30.
5 . .
7
8
9
o
1
2
'3
14
15
16
)7
)8
)9
10
II
12
13
14
15
16
17
18
19 .
20
.21
.22
m
124
125
126
~27
l28
129
'1-30
431
432
433
434
435
436
437
438
439
440
441
442
443
444
445
446
447
448
449
450
451
452
453
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459
460
461
462
463
464
465
466
NOTICE 1:
SEW AGE NOTICES
NOTICES PURSUANT TO THE PENNSYLVANIA SEWAGE FACILITIES ACT
THERE IS NO CURRENTLY EXISTING COMMUNITY SEW AGE SYSTEM A V AILA~LE FOR THE SUBJEC!
PROPERTY. Section 7 of the Pennsylvania Sewage Facilities Act provides that no person shall \I1stall, construct, req~est bid
proposals for construction, alter, repair or occupy any building ~r str~cture for which ~n .indivi~ual sewage system IS to be
installed, without first obtaining a permit. Buyer is advised by thiS notice th~t, before Signing thIS Agn:ement of Sale, B.u~er
should contact the local agency charged with administering the Act to determme the procedure an~ reqUlrement.s ror ?btammg
a permit for an individual sewage system. The local agency charged with administering the Act Will be the mUnicipalIty where
the Property is located or that rnunicipality working cooperatively with others.
THIS PROPERTY IS SERVICED BY AN INDIVIDUAL SEWAGE SYSTEM INSTALLED UNDER THE
TEN-ACRE PERMIT EXEMPTION PROVISIONS OF SECTION 7 OF THE PENNSYLVANIA SEWAGE
FACILITIES ACT. (Section 7 provides that a permit may not be required before installing, constructing, awarding
a contract for construction, altering, repairing or connecting to an individual sewage system where a ten.~cre parcel or
lot is subdivided from a parent tract after January 10, 1987.) Buyer is advised that soils and site testing were not
conducted and that, should the system malfunction, the owner of the Property or properties serviced by the system at the
time of a malfunction may be held liable for any contamination, pollution, public health hazard or nuisance which occurs
as a result.
NOTICE 2:
NOTICE 3:
THIS PROPERTY IS SERVICED BY A HOLDING TANK (PERMANENT OR TEMPORARY) TO WHICH
SEWAGE IS CONVEYED BY A WATER CARRYING SYSTEM AND WHICH IS DESIGNED AND
CONSTRUCTED TO FACILITATE ULTIMATE DISPOSAL OF THE SEWAGE AT ANOTHER SITE.
Pursuant to the Pennsylvania Sewage Facilities Act, Seller must provide a history of the annual cost of maintaining the
tank from the date of its installation or December 14, 1995, whichever is later.
NOTICE 4:
AN INDIVIDUAL SEWAGE SYSTEM HAS BEEN INSTALLED AT AN ISOLATION DISTANCE FROM A
WELL THAT IS LESS THAN THE DISTANCE SPECIFIED BY REGULATION. The regulations at 25 Pa.
Code ~73.13 pertaining to minimum horizontal isolation distances provide guidance. Subsection (b) of ~73.13 states
that the minimum horizontal isolation distance between an individual water supply or water supply system suction line
and treatment tanks shall be 50 feet. Subsection (c) of ~73.13 states that the horizontal isolation distance between the
individual water supply or water supply system suction. line and the perimeter of the absorption area
shall be 100 feet.
NOTICE 5:
THIS LOT IS WITHIN AN AREA IN WHICH PERMIT LIMITATIONS ARE IN EFFECT AND IS SUBJECT TO
THOSE LIMITATIONS. SEWAGE FACILITIES ARE NOT AVAILABLE FOR THIS LOT AND CONSTRUCTION
OF A STRUCTURE TO BE SERVED BY SEW AGE FACILITIES MAY NOT BEGIN UNTIL THE MUNICIP ALlTY
COMPLETES A MAJOR PLANNING REQUIREMENT PURSUANT TO THE PENNSYLVANIA SEWAGE
FACILITIES ACT AND REGULATIONS PROMULGATED THEREUNDER.
A REQUIRED REVISION FOR NEW LAND DEVELOPMENT, OR AN EXCEPTION TO THE REQUIREMENT
TO REVISE, OR A REQUIRED SUPPLEMENT HAS NOT BEEN APPROVED FOR THIS LOT. SEW AGE
FACILITIES ARE NOT AVAILABLE FOR THIS LOT AND SEWAGE FACILITIES WILL NOT BE AVAILABLE,
NOR MAY CONSTRUCTION BEGIN UNTIL SEW AGE FACILITIES PLANNING HAS BEEN APPROVED
PURSUANT TO THE PENNSYLVANIA SEWAGE FACILITIES ACT AND REGULATIONS PROMULGATED
THEREUNDER.
NOTICE 6:
EXPERTISE OF REAL ESTATE AGENTS
Pennsylvania Real Estate Agents are required to be licensed by the Commonwealth of Pennsylvania and are obligated to disclose adverse
factors about a property that are reasonably apparent to someone with expertise in the marketing of real property.
(A) If Buyer wants information regarding specific conditions 01' components of the property which are outside the Agent's expertise, the
advice of the appropriate professional should be sought.
(B) If Buyer wants financial, legal, or any other advice, Buyer is encouraged to seek the services of an accountant, lawyer, or other
appropriate professional. .
COMMUNICATIONS WITH BUYER AND/OR SELLER
Wherever this Agreement contains a provision that requires or allows communication/delivery to the Buyer, said provision shall be satisfied'
by communication/delivery to the Broker for Buyer, if any. If there is no Broker for Buyer, all such provisions may be satisfied only by
communication/delivery being made directly to the Buyer, unless otherwise agreed to by the parties. .
Wherever this Agreement contains a provision that requires or allows communication/delivery to the Buyer, said provision shall be satisfied
L. --'-~"h;n~t;nn/rt..liv..rv to the Broker for Seller, if any. If there is no Broker for Seller, all sUl::h provisions may be satisfied only by
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ADDENDUM
This Addendum to the Agreement for the Sale of Commercial Real Estate dated April 13,
2004, is made this 11-r;J:J. May 2004, by and between RDJAM Limited Partnership
("Seller"), and Mary Louise Hanley ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer have entered into an Agreement for the Sale of
Commercial Real Estate dated April 13, 2004, providing for the sale of Tract #2 and
Lot#6, Millennium Way, Hampden Township, Cumberland Count, Pennsylvania; and
WHEREAS, both parties desire to amend the Agreement regarding the use by
Seller of an easement crossing said property to be sold.
NOW, THEREFORE, intending to be legally bound, the parties hereby agree as
follows:
1. Both parties acknowledge that the property being sold is subject to a 20-foot wide
emergency access easement and which has recently been stabilized in accordance
with township regulations.
2. Both parties agree to and accept the location of the easement as shown on the drawing
identified on Schedule "A" attached hereto and made a part hereof.
3. Buyer agrees to allow Seller along with Seller's family, close friends, employees, and
subcontractors and successors and assigns ("authorized travelers") to traverse said
easement, at any time, for the purpose of having access to seller's land located to the
south (formally Shoop property) of said Commercial Real Estate. In support of the
additional 'authorized traveler' use of the easement contained herein, Seller agrees for
as long as the Seller utilizes the easement for said purpose, to provide ongoing
reasonable, maintenance, repairs, and snow removal for said easement.
4. Seller or Buyer shall have the right to improve said easement including but not
limited to paving, but anyone who shall hereafter disturb the condition of any part of
said easements shall put the same back to the identical condition, or as near thereto as
is practicable, as existed prior thereto. All costs of improving, altering, repairing or
maintaining the easements or rights-of-way shall be borne by those who shall make
such improvements, alterations, repairs or maintenance without the right of
reimbursement from any other owner, tenant, mortgagee, or other interested party.
5. No barriers, fences, curbs, signs or obstruction to the free and unhampered use of said
easement shall hereafter be permitted, nor shall any automobiles, trucks, motor
vehicles or other personal property nor any building or other structure be parked,
stored, constructed on any part of said easement.
6. Seller shall and will and hereby does release, indemnify, defend, protect and save
harmless Buyer from and against any and all claims, demands, liability, damages,
costs and expenses, including without limitation, court costs and attorneys' fees,
resulting from any and all loss of life or property, or from injury or- damage to the
person or property of any person, firm, corporation or entity, including Buyer and
COpy
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;
Seller and their officers, agents, and employees, arising out of or in connection with
Seller's (or Seller's agents', family, close friends, employees', subcontractors' or
invitees') authorized use, maintenance, repair, renewal, reconstruction or alteration of
said easement. Seller's release and indemnity hereunder shall survive any termination
of said easement.
7. Said easement is for the benefit of Buyer and its successors and assigns as owner of
the Premises, in conjunction with use by Seller, and is appurtenant to and shall run
with the Premises. Buyer may, at no cost to Seller, use and permit others to use the
easement and any improvement located thereon, and Buyer may grant to third parties
easements for the use of the easement. Any relocation by Buyer will be subject to any
required municipal approvals.
8. Buyer reserves the right to relocate said easement at Buyer's expense, provided that
upon such relocation, the Premises shall enjoy comparable access as currently is
provided by said easement. Upon such relocation, Buyer agrees to execute and deliver
to Seller an instrument in recordable form evidencing the grant of the relocated
easement upon similar terms and conditions as provided herein.
9. Buyer shall have the right to notify Seller of any failure to perform its obligations
herein in writing at Seller's last known address. Should Seller fail to perform any of
its duties or obligations hereunder within ten (10) business days, Buyer shall have the
right (but shall be under no obligation) to perform and to make such repairs or
maintenance, or payments for repairs or maintenance as may be necessary to cause
performance of Seller's obligations hereunder, and Buyer, upon demand therefore by
Seller, shall promptly pay all expenses incurred by Buyer in connection with such
performance.
10. This Addendum shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, and the terms Buyer and Seller hereunder
shall include their respective successors and assigns.
11. This Addendum shall not be modified or any provisions hereof waived except in
writing signed by the parties.
IN WITNESS WHEREOF, the parties have executed this Addendum on the day and
year first written above.
Witness:
Seller:
RDJAM Limited Partnership
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By.,.?_..~ '-- -____~ ,-,';,
.v-- Richard A. McBride;General Partner
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Witness:
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Buyer:
Mary Louise Hanley
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ADDENDUM
This Addendum to the Agreement for the Sale of Commercial Real Estate dated April 13,
2004, is made this /I"i):J. May 2004, by and between RDJAM Limited Partnership
("Seller"), and Mary Louise Hanley ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer have entered into an Agreement for the Sale of
Commercial Real Estate dated April 13, 2004, providing for the sale of Tract #2 and
Lot#6, Millennium Way, Hampden Township, Cumberland Count, Pennsylvania; and
WHEREAS, both parties desire to amend the Agreement regarding the use by
Seller of an easement crossing said property to be sold.
NOW, THEREFORE, intending to be legally bound, the parties hereby agree as
follows:
1. Both parties acknowledge that the property being sold is subject to a 20-foot wide
emergency access easement and which has recently been stabilized in accordance
with township regulations.
2. Both parties agree to and accept the location of the easement as shown on the drawing
identified on Schedule "A" attached hereto and made a part hereof.
3. Buyer agrees to allow Seller along with Seller's family, close friends, employees, and
subcontractors and successors and assigns ("authorized travelers") to traverse said
easement, at any time, for the purpose of having access to seller's land located to the
south (formally Shoop property) of said Commercial Real Estate. In support of the
additional 'authorized traveler' use of the easement contained herein, Seller agrees for
as long as the Seller utilizes the easement for said purpose, to provide ongoing
reasonable, maintenance, repairs, and snow removal for said easement.
4. Seller or Buyer shall have the right to improve said easement including but not
limited to paving, but anyone who shall hereafter disturb the condition of any part of
said easements shall put the same back to the identical condition, or as near thereto as
is practicable, as existed prior thereto. All costs of improving, altering, repairing or
maintaining the easements or rights-of-way shall be borne by those who shall make
such improvements, alterations, repairs or maintenance without the right of
reimbursement from any other owner, tenant, mortgagee, or other interested party.
5. No barriers, fences, curbs, signs or obstruction to the free and unhampered use of said
easement shall hereafter be permitted, nor shall any automobiles, trucks, motor
vehicles or other personal property nor any building or other structure be parked,
stored, constructed on any part of said easement.
6. Seller shall and will and hereby does release, indemnify, defend, protect and save
harmless Buyer from and against any and all claims, demands, liability, damages,
costs and expenses, including without limitation, court costs and attorneys' fees,
resulting from any and all loss oflife or property, or from injury or-damage to the
person or property of any person, firm, corporation or entity, including Buyer and
COpy
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Seller and their officers, agents, and employees, arising out of or in connection with
Seller's (or Seller's agents', family, close friends, employees', subcontractors' or
invitees') authorized use, maintenance, repair, renewal, reconstruction or alteration of
said easement. Seller's release and indemnity hereunder shall survive any termination
of said easement.
7. Said easement is for the benefit of Buyer and its successors and assigns as owner of
the Premises, in conjunction with use by Seller, and is appurtenant to and shall run
with the Premises. Buyer may, at no cost to Seller, use and permit others to use the
easement and any improvement located thereon, and Buyer may grant to third parties
easements for the use of the easement. Any relocation by Buyer will be subject to any
required municipal approvals.
8. Buyer reserves the right to relocate said easement at Buyer's expense, provided that
upon such relocation, the Premises shall enjoy comparable access as currently is
provided by said easement. Upon such relocation, Buyer agrees to execute and deliver
to Seller an instrument in recordable form evidencing the grant of the relocated
easement upon similar terms and conditions as provided herein.
9. Buyer shall have the right to notify Seller of any failure to perform its obligations
herein in writing at Seller's last known address. Should Seller fail to perform any of
its duties or obligations hereunder within ten (10) business days, Buyer shall have the
right (but shall be under no obligation) to perform and to make such repairs or
maintenance, or payments for repairs or maintenance as may be necessary to cause
performance of Seller's obligations hereunder, and Buyer, upon demand therefore by
Seller, shall promptly pay all expenses incurred by Buyer in connection with such
performance.
10. This Addendum shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, and the terms Buyer and Seller hereunder
shall include their respective successors and assigns.
11. This Addendum shall not be modified or any provisions hereof waived except in
writing signed by the parties.
IN WITNESS WHEREOF, the parties have executed this Addendum on the day and
year first written above.
Witness:
Seller:
RDJA1vl Limited Partnership
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Witness:
Buyer:
Mary Louise Hanley
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71 77325943
EXECUTIVE OFFICE
GOLDBERG K^TZMAN
PAGE 1212
fa! 008/00B
ld/21/2004 10:27 FAX 717 234 8808
.'
VER)FICA TTON
I. R.ichard A. McBride, President and CEO ot'Herre Bros., Inc. I hereby aoknowledge that
1 am an authorized representative of Plaintiffs in thi!; aotictn and that 1 have read the foregoing
Complaint ilnd that the facts ~tl:lted therein ftl'C In.IO Md o~n'cet to the be!lt of my knowledge.
information and belief.
I understand that any false statements herein nre made subjec.t to penalties of 18 Pa. C,S.
Section 4904, relating to unsworn falsiflcaJion to authorities
Date;
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Richl\rd A. McBride .
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SHERIFF'S RETURN - REGULAR
CASE NO: 2004-05504 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HERRE BROS INC ET AL
VS
CINEMAGIC
CPL. TIMOTHY REITZ
, Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
was served upon
says, the within COMPLAINT & NOTICE
CINEMAGIC
the
DEFENDANT
, at 1515:00 HOURS, on the 3rd day of November, 2004
at 2250 MILLENNIUM WAY
ENOLA, PA 17025
SUZANN WOOLS, SECRETARY,
by handing to
ADULT IN CHARGE
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18.00
11.10
.00
10.00
.00
39.10
Sworn and Subscribed to before
J~
me this.6 day of
n. .:)(J05 A.D.
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So Answers:
---..-::~-{/'?,-::;-;;/ ..(.~
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R. Thomas Kline
11/04/2004
GOLDBERG KATZMAN
By:
7--- -~-? 7 ~-'-?'
.7-. /M;/ //~/./ ~/.
~ Dejuty she)iff
HERRE BROS., INC.
and R.D.J.A.M., L.P.,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiffs,
CIVIL ACTION - LAW
v.
CINEMAGIC,
DOCKET NO: CV-04-5504
Defendant.
ORDER
AND NOW, this
day of
, 2005, upon consideration of
the Preliminary Objection filed by Defendant Cinemagic against Plaintiff R.D.J.A.M., L.P.'s
Complaint, it is hereby ORDERED and DECREED that said Preliminary Objection is
GRANTED. PlaintiffR.D.J.A.M., L.P.'s claim against Cinemagic is dismissed and this matter
is ordered to proceed with arbitration as per the Contract between Cinemagic and R.D.J.A.M.,
L.P.
Further, upon consideration of the Preliminary Objection filed by Defendant Cinemagic
stating that Plaintiff Herre Bros, Inc. does not have standing to sue, it is hereby ORDERED and
DECREED that said Preliminary Objection is GRANTED. Plaintiff Herre Bros, Inc.'s claim is
.
dismissed, in that Herre Bros, Inc. does not have standing to sue for any actions arising out of a
Contract to which it is not a party or third party beneficiary.
BY THE COURT:
J.
DICKIE, McCAMEY & CHILCOTE, P.C.
BY: CHARLES E. HADDICK, JR., ESQUIRE
ATTORNEY ID. NO. 55666
BY: J. DAVID ZIEGLER, ESQUIRE
ATTORNEY ID. NO. 92882
1200 Camp Hill Bypass - Suite 205
Camp Hill, P A 17011
(717)731-4800 (Tele)
(717) 731-4803 (Fax)
ATTORNEYS FOR: ClNEMAGIC
HERRE BROS., INC.
and R.D.J.A.M., L.P.,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiffs,
CIVIL ACTION - LAW
v.
CINEMAGIC,
DOCKET NO: CV-04-5504
Defendant.
MOTION FOR PRELIMINARY OBJECTIONS FILED BY
DEFENDANT, CINEMAGIC, AGAINST PLAINTIFFS, HERRE BROS, INC. AND
R.D.J.A.M., L.P.'s, COMPLAINT
AND NOW, comes Defendant, Cinemagic, by and through its attorney, 'Char1es E.
Haddick, Jr., Esquire, Dickie, McCamey & Chilcote, P.C., and files the within Preliminary
Objections against the Plaintiffs' Complaint and in support thereof avers as follows:
1. Plaintiffs, Herre Bras, Inc. and R.D.J.A.M., L.P., commenced the present action
with the filing ofa Complaint on or about November 1, 2005. (See Complaint attached hereto as
Exhibit "A.")
2. Plaintiffs provided the Defendant, Cinemagic, an open extension to file
Preliminary Objections to their Complaint (see correspondence from Cinemagic to R.D.J.A.M.,
L.P. dated March 18,2005 attached hereto as Exhibit "B") and they do so now.
3. This action is the result of an Agreement for the Sale of Commercial Real Estate
("Contract") entered into by Cinemagic and R.D.J.AM., L.P. (See Contract attached hereto as
Exhibit "C.") It has been filed despite Cinemagic and R.D.J.AM., L.P., in their Contract,
including an Agreement to Arbitrate any disputes arising out ofthe Contract.
4. Plaintiffs claim that Defendant Cinemagic breached the Contract by not using
Plaintiff, Herre Bros, Inc., as the electrical and mechanical contractor during the construction of
Cinemagic's new building. (See generally Plaintiffs' Complaint.)
5. Herre Bros, Inc., who is not a party to the Contract, brings its claim against
Cinemagic under a theory that they are a third party beneficiary of the Contract. (See Count II of
Plaintiffs' Complaint.)
6. Cinemagic now raises two (2) Preliminary Objections pursuant to
Pa.R.C.P. J028(a):
A. Plaintiff R.D.J.A.M., L.P.'s. claim against Cinemagic
should be dismissed pursuant to Pa.R.C.P. l028(al(6l in
that it involves an issue subject to a valid agreement to
arbitrate.
7. When ruling on Preliminary Objections, the court must consider as true all
relevant and well-pleaded facts, as well as all inferences reasonably deduced from those facts.
Santiago v. Penna. Nat'l Mutual Casualty Ins. Co., 418 Pa.Super. 178,613 A.2d 1235 (1992).
8. When a pleading is subject to the pendency of a prior action or agreement for
alternative dispute resolution, the Pennsylvania Rules of Civil Procedure permit a party to file
preliminary objections. (Pa.R.C.P. I028(a)(6)).
9. Under Section 29 of the Contract, it clearly states: "Buyer and Seller agree to
arbitrate any dispute between them that cannot be amicable [sic] resolved."
2
10. An arbitration clause indicates that the parties contemplated one metho.d, and one
method only, for the resolution of disputes under the contract. See Cunningham v. Prudential
Property & Casualtv Ins. Co., 340 Pa.Super. 130, 135 (Pa. Super. Ct. 1985).
B. Plaintiff Herre Bros, Inc. should be dismissed, in that
Herre Bros, Inc. is not a named party or third party
beneficiary to the Contact between R.D.J.A.M., L.P.
and Cinemagic and, therefore, does not have standing
to bring an action against Defendant arising from the
Contract.
II. When a plaintiff lacks the capacity to sue a defendant, the Pennsylvania Rules of
Civil Procedure permit immediate dismissal by way of preliminary objections.
(Pa.R.C.P. 1028(a)(5)).
12. The parties to the Contract are R.D.J.A.M., L.P. (Seller) and Cinemagic (Buyer).
(See generally the Contract.)
13. "[I]t is fundamental contract law that one cannot be liable for a breach of contract
unless one is a party to that contract." Electron Energy Com. Y. Short. 408 Pa.Super. 563, 571,
597 A.2d 175, 178 (199Il.
14. To be a third party beneficiary with the ability to recover on a contract, both
parties to the contract must intend that the third party will benefit and that intention must be
specifically stated in the contract. Spires v. Hanover, 70 A.2d 828, 830 (Pa. 1950).
15. To determine whether one is an intended third party beneficiary, there is a two-
part test: 1) the beneficiary's right must be appropriate to effectuate the parties' intention; and 2)
either the performance must satisfy the promisee's obligation to pay money to the beneficiary, or
the circumstances must indicate that the promisee intends to give the beneficiary the benefit of
3
the promisee's performance. Scarpitti v. Weborg, 609 A.2d 147, 150 (Pa. 1992); Guv v.
Liederbach, 459 A.2d 744, 751 (pa. 1983).
16. An incidental beneficiary acquires no rights against the parties to the Contract.
Grossi v. U.S. Fidelitv; Restatement (Second) of Contracts S 315 (1981). Mere hope, or even
simple awareness, that a third party will benefit from a contract provision is not an intention to
specifically confer a third party right. See, Pa. Liquor Control Bd. v. Rapistan. Inc., 371 A.2d
178, 183 (Pa. 1976).
17. In the present case, Herre Bros, Inc. has claimed intended third party beneficiary
status to the Contract between Cinemagic and R.DJ.A.M, L.P. and has filed a claim for breach
of contract against Cinemagic. (See Complaint at p. 11 and Count II.)
18. Herre Bros, Inc. states that Section E of Special Clauses to the Contract entitles it
the status of an intended third party beneficiary. Id. The clause in the Contract states:
It is the Buyer's intent to contract with Pyramid Construction
Services to Build New Facility, who in turn will utilize Herre Bros,
Inc. for mechanical/electrical trades for a reasonable cost.
(Section E of Special Clauses to Contract at p. IA.)
19. To be considered a third-party beneficiary in this state, it is necessary to show
both parties to the contract had an intent to benefit the third party through the contract and did, in
fact, explicitly indicate this intent in the contract. Strutz v. State Farm Mut. Ins. Co., 415 Pa.
Super. 371; see also Gerace v. Holmes Protection of Phila., 357 Pa.Super. 467, 516 A.2d 354
(1986).
20. There is no explicitly expressed intent by R.D.J.A.M., L.P. at all. Although
unlikely, Pyramid Construction may have standing as a third party beneficiary. Herre Bros, Inc.,
4
however, has no such standing because there is no indication that both parties to the Contract
(Cinemagic and RDJ.A.M., L.P.) expressed an intent to do so.
21. Pyramid has no authority to make promises on behalf of Cinemagic. The
statement that "[Pyramid] will utilize Herre Bros, Inc. for mechanical/electrical trades for a
reasonable cost" is not a statement of clear intent made by Cinemagic which would establish
third party beneficiary status for Herre Bros, Inc.
22. Accordingly, Herre Bros, Inc. is an incidental beneficiary to the Contract and
acquires no rights against the parties to the Contract. Grossi v. U.S. Fidelity; Restatement
(Second) of Contracts S 315 (1981).
WHEREFORE, Moving Defendant respectfully requests that this Honorable Court grant
Defendant's Preliminary Objection filed against Plaintiff, R.DJ.A.M, L.P., and dismiss its cause
of action so that this matter can proceed to arbitration as per the Contract.
Furthermore, Moving Defendant requests that this Honorable Court grant its Preliminary
Objection filed against Herre Bros, Inc. and dismiss its cause of action against Cinemagic in full,
in that Herre Bros, Inc. is not a third party beneficiary to the Contract and does not have standing
to sue Cinemagic for any action arising from the Contract.
Respectfully submitted,
DICKIE,
CAMEY & CHILCOTE,.P.e.
I '
Date:
I D l-t..-\ 0 ;-
, Jr., Esquire
Attorney Id. No. 666
J. David Ziegler, Esquire
Attorney Id. No. 92882
1200 Camp Hill Bypass, Suite 205
Camp Hill, PA 17011
(717) 731-4800
Attorneys for Defendant
5
CERTIFICATE OF SERVICE
/~\f:f<""
AND NOW, this U; day of (fcf{) W-.JG , 2005, I, Charles E. Haddick,
Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing Motion for
Preliminary Objections Filed by Defendant, Cinemagic, Against Plaintiffs, Herre Bros, Inc.
and R.D.J.A.M., L.P.'S, Complaint via U.S. mail, postage prepaid, at Camp Hill,
Pennsylvania, addressed as follows:
Thomas Weber, Esquire
Goldberg Katzman, P.c.
320 Market Street
Strawberry Square
P.O. Box 1268
Harrisburg P A 17108
Attorney for Plaintiffs
J/David Ziegler, Esquire/
6
Thomas J. Wdl':r. Esquir.:
AHllf"fl':Y l.D, i\to 5Ni:5.1
uuLl1BERli j~!\I/.~l:\I':.I'I'
32(1lvlarl.:cl :)llCd
P. O. Box 126M
Hnnisburg,PA 1711111.]:!(,t
(717)2,14-416):(71)12,1-1..;jI(,),rIU':;1I1111.-1
Cou/lsel }ur f'hullrW
I-TERRE BROS., INc.
and R.D.JAM, Ll'
IN THE COURT OF COrvlMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
CfNEMAGIC
2250 Millennium Way
Enola, PA 17025
No. OY - S S C:f-(
Ci<->'Ll~~
v.
Defendant
NOTICE
YOU HAVE BEI,N SUED IN COURT. If you wish 10 de/end against the claims set
forth in the following pages, you must take action within twenty (20) clays after this Complaint
and Notice are served, by entering a written appearance personally 'or by attorney and filing in
writing with the C01ll1 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 ancl a judgment may be entered
against you by the COllll without further notice for any money claimed in the Complaint or for
any other claim or relief requested by the Plaintiff You may lose ll10ney or propel1y or other
rights imporri1l1t to you.
YOU SIIOULD TAKe:: THIS PAPER TO YOUR LA WYER AT ONCE. IF YOU DO
NOT HA VE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH 1ll:1_0W TO FIND OUT WHERE YOU Cf\N GET LEGAL HELP.
Lawyer Referral Service
Cumberland County Bar Association
:2 Libel'll' A venue
Cmlisle, PA 17013
717-249-3166
. !~!:JE COpy FROM Rt
'ei ; "",1i!\1OI:'1 WiI.:,raol f 11 .. CORD
&Id 100 ssal 01 ~"':J;' . ,6'~. unto. sat my h.ifld
rhj~; .-1- ,""'" "our! a( C3f1isle. Pa,
'- __OAn dap~~;,.rpt
honotary .;p.6 '\
Thonm!> ./. Wdwr. J-:.~ljllif..,
Attorney 1.0, No. ~XX5J
GOLDBE.RG ~~xr/.I\.I;\I">J. I' C
320 Mt\I'ki:L SLn:<.:\
P. O. Box 126ti
Harrishurg, PA ! 711/,1;-1'2/"1>:
(717) :!34,416\; (717) '],q---I 161 (lat'slIlllkl
CO/IIl.I'clfo/" Ph/illlll!
HERRE BROS, INC
and R.DJAM, LP
IN THE COURT 010 COtvlfvlON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
No.
CJNEtvlAGIC
2250 Millennium WflY
Enola, PAl 7025
Defendant
NOTICIA
Le han delllandado a listed en la cone. Si usted qui ere defenderse de estas del11andas
expuestas en las paginas siguientes, lIstedtiene viente (20) dias de plaz.o al partir de la fecha de
Ia demandfl y la notificacion, Usled debe presenl<<r lIna apariencia escrila 0 ell persona 0 par
abogado y archiv<lr enla corte en lorllla escrita sus defensas 0 SlIS objectiones alas demandas ell
contra de su persona. Sea adisado que si listed no se defiende, la sin prcvio aviso 0 notificacion
Y pOl' cLlalquicr qui<l 0 pllede perdcr dinero 0 SlIS propied<ldcs (l olros dCl'echos illlportantes para
Listed,
LLEVE ESTA D[MANDA A UN ABOGADO IMMEDIAT AM[NTE. SJ NO IlENE
ABOGADO 0 SI NO TI[NE EL DINEIZO SUFICIENTE DE PAGAR TAL SERVICTO,
VAYAEN PERSONA 0 LLAME POR TEI.EFONO A LA OFICINA CUY A DIRECClON SE
ENCUENTRA ESCRIT A ABAJO f'ARA A VEI<.IC;UAR DONO[ SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Lawyer Referral Service
Cumberland COllnty Bar Association
2 Liberty A venlle
Carlisle, PA 17013
717-249-3166
'1'1111111"".1. Welll'l'. h,qllill'
Altorney LD, Nn. 5MH5J
GOLDBER" KA'j','IJ>lAN, J>('
320MarketSI,cd
P. 0, Dox 126N
Hnrri~bmg. l>A 171()g. \ 2/;1\
(717) 234-4\61: (717) 2_,-1.-111,1 (rllt~ll11ik)
COl!m;l!I.fi;r l'lmltl(/h
HERRE BROS, INc.
and RDJAtvl, LP.
. IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
No.
CINEMAG1C
2250 Millennium Way
Enola, PA 17025
Defendant
COMPLAINT
1. Plaintiff' RDJ.A.M, L.P. is a limited partnership organized and existing under
the laws of the Commonwealth of Pennsylvania with a principal place of business at 4421 Valley
Road, Enola, Pennsylvania 17025-1477.
2. Plaintiff Herre l3res. Inc. is a corporation dually organized and existing under the
laws of the Commonwealth of Pennsylvania with a principal place of business at 4417 Valley
Road, Enola, PA 17025.
3. Defendant Cinemagic is believed to be a corporation dually organized and
existing unclcI'the laws oflhe Commonwealth of Pennsylvania with a Pl'incipal place of business
identified as 2250 1\1illennium Way, Enola, PA 17025.
4. Pursuilnt to a Sail's ^grl'l'l\\l'nl datl'd ^pril 11,2004, PlaintilT RD.1.A.M., L.P.
sold to Cinemagic, a parcel of lend comprising of approximately 1.12 acres. See Sales
Agreement attached hereto as Exhibit "A".
S. An ^ddendumto the Sales ^greement was executed on (H' about May J J, 2004.
See Addendum attached hereto as Exhibit "B"
6. Defendant purchased the propel1y with the intent ion of constructing a new office
building for its use on the same.
7. The parcel ofland purchased by Defendant is contiguous to other propelty owned
by R.D.JAM, LP and Herre Gros, lnc,
8. The principal owner of Herre Bros, Inc. is also a principal in R.DJ'A.M., L,P.
9. Plaintiff Herre Bros.. 1nc. is an electrical/mechanical, HV AC contractor with over
90 years of experience in the Central Pennsylvania area.
]0. Due to the close proximity afDelendant's anticipaleclncw o/lice building, it was
of interest to the Plaintiffs that companies competing with Herre Bras, Inc. would not have the
opPoliunily of using Defendant's new construction site as a parcel upon which competitors of
Herre Bros" Inc. could do business and stage their advertising.
11. As a result, PlaintiffR.D.lAM., LP agreed to reduce the purchase price of the
real estate in exchange lor Defendant's agreement to utilize the services of Plaintiff Herre Bros.,
Inc. for the mechanical and electrical trades in the construction or Del'endant's new building.
See Section E of Special Clauses to Agreement of Sale attached hereto as Exhibit A ("It is the
Buyers intent to contract with Pyramid Construction Services to build a new facility, who in turn
will utilize Herre Bros., inc. {c)r mechanical/electric trades fur a i'casonable cost")
2
12. At the time Defendant agreed to utilize the services of Herre Bros., Inc.,
Defendant knew ofrhe ilssociation between Plaintiffs and further knew Plaintiff Herre Bros., Inc.
utilized union labor
13. Defendant's selected contractor, Pyramid Construction, was willing to utilize the
services of Herre Bros., Inc.
J4. Following closing on the real estate, Defendanl's general contractor contacted
Herre Bros., Inc. for purposes of initiating the construction process,
] 5. As a result, Herre Bros, Inc. prepared technical design drawings for the
mechanical and electrical components of Defendant's buildi ng and pmvided an estimate of
$138,360.00 for completion of the electrical and mechanical component of the project.
] 6, Despite contractually agreeing to utilize the services of Herre Bros., Inc.,
Defendant has now refused to do so in breach of the contract,
COUNT I
17. Paragraphs I through 16 are incorporated herein as Ihough set fo/1h in their
entirety.
18. Defendanl agreed to utilize the services ofJ-lerre Bros, Inc. in the construction of
its buiJdin~
19. In exchange lor this agreement, Plaintiff, RD.lAI\iI., LI' reduced the purchase
price of the real estate by $ 16,940.00.
20 Defendant has now breached its contract with R.D.J.A M., L.P. by refusing to use
Herre Bros., Inc,
,
.,
21 But 1<:)1 its promise to utilize Ilcrre Ilros. Inc, I'laintirT'RDJAM. would not
have reduced the Sale price for the parcel of land.
WHEREf'ORE, RDlA.M., LP demands judgment in its favor and against Defendant
in an amount in excess 01' $1 5,000 plus interest and costs, which amount does not exceed the
limit for compulsory arbitration
COUNT II
22. Paragraphs 1 through 21 are incorporated herein as though set fOl1h in their
entirety.
23 Herre 13ros, Inc \Vas a third pal'ly beneficiary "I' the contractual provisions
governing mechanical and electrical services between R.D.J.A,tvl., L.P and Cinemagic,
24. Herre Bros., Inc. expended time and energy in preparing design drawings and an
estimate for the mechanical and electrical services.
25. Defendant haS breached its contractual agreement to use Here Bros. Inc.
26. As a result of Defendant '.I breach, Herre Bros., Inc. has been improperly deprived
of its profit and overhead on the job totaling $ 24,087,46.
~
WHEREFORE, PlaintifTHerre 81'Os, Inc. demands judgment in its f~\Vor and against
Defendant in an amount in excess 01'$20,000 plus interest and cost which amount does not
exceed the Hmount of cDl1lplllsury arbitratilltl.
Respectfully submitted,
Date i(i)t1blot
Attorneys for I'laintif['
: ODMAII'CDOCSIDOCS\/1!95 13. 1\
5
LAW OFFICES OF
DICKIE, MCCAMEY & CHILCOTE, P.c.
1200 CAMP HILL BYPASS
SUITE 205
CAMP HIL4 PENNSYLVANIA
17011-3700
TEL. 717-731-4800
FAX. 717-731-4803
WWW.DMCLAW.COM
Charles E. Baddiek, Jr.
Attorney~at-Law
chaddick@dmclaw.com
March 18, 2005
VIA FACSIMILE - (717) 234-6808
Thomas Weber, Esquire
Goldberg Katzman, P.C.
320 Market Street
Strawberry Square
P.O. Box 1268
Harrisburg, Pa 17108
RE: Herre Bros., Inc. v. Cinemagic
Our FileNo: B-I72
Dear Tom:
Thank you for your letter concerning arbitration, There does appear to be an arbitration
clause in the agreement of sale between Cinemagic and RDJAM, and while I raised this in a
letter to you last November, I also raised the issue of Herre Bros, not being a party to the
contract. Accordingly, while arbitration between and RDJAM may be appropriate at some point,
I think first, the court must consider several of the legal issues raised in my letter to your of
November 11,2004 including
(1) whether Herre Bros, is a proper party;
(2) whether the agreement of sale contains any promise to retain Herre Bros.; and
(3) whether Herre Bros.' bid, which was so disproportionally high, as to not constitute a
legitimate offer to perform services, in comparison with other bids received by
Cinemagic.
Because at least one of these issues, if decided in favor of Cine magic, would result in a
dismissal of all claims, I believe it is more appropriate to proceed with Preliminary Objections
first, and stay any arbitration proceeding until such time as those objections are decided. We will
likely raise this issue in our preliminary objections as well.
I apologize for my earlier voicemail if! seemed confused by your proposal of arbitration,
I look forward to talking with you. Please allow this also to confirm our prior agreement to an
PITTSBURGH .. PHILADELPHIA .. WASHINGTON, D.C. .. NEW JERSEY .. NORTH CAROLINA" OHIO .. WEST VIRGINIA
412-281-7272 215,925,2289 888-434-5566 856,988,5473 704-334-1108 740-284,1682 304,233,1022
March 18,2005
Page Two
open ended extension within which to file an answer or preliminary objections to the complaint.
I do hope, however, to have a decision from Cinemagic on how to proceed shortly, and I will
certainly file anything as promptly as possible.
Very truly yours,
~CAMEY & CHILCOTE, P.C.
Charles E. HaddICk, Jr.
CEH, Jr./kao
cc: James Nealon (Via Facsimile - 236-9119)
AGREEMENT FOR THE SALE OF COMMERCIAL REAL ESTATE
A/S-C
Thi$furm ItcOIIII"ell~ed a"~ BI'I"oved for, bulllul rellrided 10 "SO by,llle lI1elllbera urIbe Pen"ayfYDnia ,c,uocialilln ofREA.'- TORS>&! (PAR).
SELLEn'S IJUSJN~S RELATWNSUU' WJTU l'A. LICENSED DnOJ(EJl
BROKER (CompAny) Lancimark. Commeroial Realtv. Inc. PHONE (117)731-1990
AllDRf.;SS ~O Erford Road, Suite 'US. Lemovn\!l, .. 1704) FAX (117)131-6765
lJROI<l!H IS TilE AGI!:NT FOn SIi;LLEIt. Dnlgll'lI:t1 Agtlll(!) fur Sdlu, Irlllplltllllle: Jeremy Shyk and 'rom poeavec
OR
6rollU is NOT the Ar,elll (or Seller nlld if lI(nl1: o AGENT FOR DUnn o TllANSACTJON LICENSEE
DUYEn'S IJUSINESS llti:LATIONSIIU' WITH l'A LlCENSlm UUOKEU
(lnOI{[R (CompAny) Lanc:lmaJ;k Commercial Raaltv, Ino. I'HONE (7171731-1990
ADDnESS 20 g.t:ford Road, Suite 215, Lemoyne, .. 17043 FAX (717)731-8765
D1lOKl.m IS nIE AGENT rron BUYl!n. IJUlgllAtClJ Ageut{!) for Uuyer, IrAPI,Ucn!Jle:
on
nl"oll~r 15 NOT the Ag~J1t fill. Buyel" Duuls A/on: 0 AGl&NT FOR SELLER l&I SUDAG.tNT FOR SELLEn o TRANSACftoN LICENSEE
Whc" tll~ 'Ame Broker I, Agcnl fOI" Selic,. o"u Age"t for Buycr, Droller It 0 tJUAI Age"t. All of D'.oker', Ilten,eu nre Abo DUll Agwb UNLESS
there ore 1tl'Ill"ale DcsJlIlIlltet.l Agent, fOl' nlly~r 1l.lId ~tller.lrtllt sallie LIcensee llllulglllllcll COI" Seller IIm.l Duyer, tbe Ueenne It II DUll Agelll.
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L THIS AGREEMENT, dnted ADril 13 2004
SELLER(S): R.D JAM Limited PartnsrshiD c/o Rinhard McBridlil
Isbetweell
,c"Ued "Seller." Rlld
llUYEH.(S):cinemaaic and/or Assians c/o LouiSe Hanlev
,cnllel.! "8uyer."
2. I'ROI'ERTY. Selhw hereby Ilgrees to selland tonny lo Buyer. willi hereby agrees to purchase:
ALL THAT CERTAIN lof or piece o{groum/ wiUr buildlllgS IInd IlllprOl'flmetll.f tlJel'eoll erecled. if JlIIY, knoWlIlIS:
Tract #2 Lot #6. AD9rox 1.12 Acres. Millennium Hav. Pvramid Business Park Enola PA
{SeR Att~ched Plan}
ill the Townshio of Hamoden County uf Cumber] and
COlllmonwealth of PeulIsylvanill, Zill Code 17025
J{/entjfiCl1tioll (e.g., Tax 10 Hi Parcel II; Lol, D/odq Deoo Dook,I'sge, Hecl,Ol'dillg Dnle)
J. Tlm.MS (10.01)
(A) Purchllsel'rice 108 .500 00
which willue paid to Seller I"y Duyel' as follows:
(I) Cash or check at siglling Ihis AgreemeJil:
(2) Cash or check within 3 days oflhe execuLion ofLhis Agreemellt
(J)
(<I)
(5) Cash, cashler's oj' certified check at time ofseLtlemcnt:
U.S.UolJars
s
s
s
s
s
TOTAL S
stated here:
5.000 00
103 500 00
101'1 500 00
(U) DeposiLs paid all account of purchase price to be held by Droker for Seller, unless otherwise
(C)
(0)
(E)
Seller's wrilten approval ou or before: Aori.l. l.5
Seltlement Lo he 011 June 15. 2004
Conveyance ftom Seller will be by fee simple
2004
, or before if Duyer and Seller agree.
deed of special warranly unless oLherwise slated here:
(F) \JaymellL of ll"lllLsfel. taxes will be divided equally belween Buyer alld Seller Ullless otherwise stated hete:
(0) At time of settlement, the fullowing will be adjusted pro-rRLa Oil a daily basis between J)uyer and Seller, reimbul'5ing where applicable:
laxes (see Nolices alld lllfunllulioll Regarding Tax Proratiun); rents; Interest all mortgage QSsulllptions; condominium fees, if allY;
Waler Rndlor sewer fees, if auy; togelher with Bny other lienable municipal service. The charges are to be pro-raled ror the periou(s)
covered: Seller will pay up to uud illclmlillg the dale of stUlemellt; lluyer will pay for all days following setUemellt. unless olherwise
sla(edhere;
(II) 13uyer shallleil1luul'se Seller ful' Ihe actual cosls uf any remaining heating, cooking or oLher fue]s sto,.ed on the Property at the time of
$clllelllcllt,lIl1lesSolhel'wiseSlaledln:I'e:
4. I'IXTUIllDS AND I'EHSONAL I'HOJ'EHTY (1-0U)
(A) INCLUDED ill this sl.le lllllJ Ilun;llase price are nil existing items pCI.munclIlIy installed ill the Property, free of liens, illcltllJing
plumbing; JIVAC Ctlllillluelll; ligliliug Jj,'(]Utes (iJII;JUJiJlg chandeliers nUll ceiling fans); and waleI' IreaLmentsysLems, unless utherwise
staled veluw. Also iududeJ
(0) l.EASEU items:
(C) EXCLUDED Jhlllrc:; <lnd ilclll:;:
5. SIJI~C1AL CLAUSl.!::):
(A) The lolJuwillg are pill! \If!hi~ AgJt:CfIlcul irdrcckcd:
[)
[)~--
(D) SI'I~ClAL l'H\JVISION8 (IF ANY):
o
[)
LJ COpy
nU),t"lllitlll~:'
m pent VIII
U3 REALTOj~S"
.!~lr"". ...v............"........._".."..
A/S-C I'age I of6
Lnrrdrllnrk Comrnereinl Really Ille 2.0 Erronl Rll SIC 215, l..CllIoyne PA 170'13
I'hone:7117Jl199U faJl.: 1117)t8765 Lanllmal'kColllllltl'c1al Renlly, III
I'rlltluced wilh ZII'For",'~ by m~ foun,He!. LLC 10025 Fnleen Mile RaId, CIi-1IM Town.hlp. fIIIlcI~IIB" 46035. (000) JOJ.gOO5
HJ1.1l0JS,a)(
--
t. Spccial Clauses (Continued):
This agreement is exprcssly contingent upon the following terms and conditions being IUct or waived or
this agreement shall become nnll and void and the deposit together with interest shall be retnrned to the
BUYER and neither BUYER or SELLER ,hall have any turther obUgation to the other. Each condition
will be deemed to have been satisfied by settlement 01' the otherwise indicated Julcs unless UUYER
notifies SELLER or SELLER'S agcnt to the ~onlrnry in writing on or bcli..lre the indicaleJ uate:
A. FEASIBILITY PErnOD: BUYER or BUYER'S agent shall hHve a period of thirty-live (35)
days from the date oHhe Agreement is fully executed to entcr upon aml iuvestigale all aspccts of
the property with out limitation. Inr..:luded, but not lill1ilcJ to, soil anu subsoil ,<lludics, including
core samples, environmental studies, enginecring studies, lallll-usc planning HUll feasibility
studies, access to utilities, access to highways or allY other studies or inspcdiulIs BUYER decms
necessary to determine the properly meels the BUYER':) llllcmlcd use to IJUYEJ{'S sole
satisfaction.
B. RIGHT TO TERMINATE: If BUYER determines, in BUYER'S sole discretioH, not to HC<IHire
the property for any reason, BUYER may, at its option, terminate by wrillcllllotice lu SELLER
on or before the expiration of the Feasibility Period set forth in Paragraph 5A above. Upun such
termination, the Deposit, and all accrued interest thereon, will be iUUllcuialcly rclurmxt to
BUYER and BUYER wilt have no liability to SELLER hereunder so long as the termination
oeenrs prior to May 15, 2004.
C. FINANCING: BUYER to seellfe acceptable conventional financing to aeqnire and develop tile
property for its intended nse on/or before May 15,2004.
D. SHORT TERM LEASE: SELLER agrees to a1tow BUYER to lease np to 3,000 Sq. Ft. of
office space at 2250 Millennium Way, Enola, PA at a rate of $15.75 per square foot plus
janitorial service. Said lease shall begin no later than July 15, 2004 and shall continue until
completion and move-in by BUYER at BUYER'S new office bnitding. Formal lease document
to be executed on or before May 1,2004.
E.
It ,'r; tl"
Co ('\f fr4r: fr'v'r-
f)<\(,r
.lr.r<./,'(V)
r~le~f tv CtJ.-.'f>r",t"' '?-I,Yi--. py,--,.,,,'c/
to fly,'(..1.,.......... {:;,cr:('-j I c...I/,tJ :"
fle,,,,- U<'1).[. X;'C t,;" ""fc~'nl Cq,((E!ec'f.-.c
j"l'n vv; ((
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Buyer's Initials!' hi '
VV .
Page IA 0[6 '
;?i//
Seller Initials: /;f-/?
~...../
,/
G. POSSESSION (5-01) I
(A) I'ussessioll is to be delivcred uy t.Jceu, keys and: . 'SS
1. Physical possession Lo vacant l'roperty free of c.Iebris, wiLh all sLrucLutes broQm clean, al oay nml Lillie uf scUlemcnL UNLE~
otherwise stated here: ' AND/OR
1. Assignmcnt of existing ICIISC(S), togcthcr wilh allY security depusits <lnu illtcrcsl, at (imc of seU/clllellt, if l'I.U/1C/'ly ;s leased althe
execution o[this Agreement or unlcss uthcrwisc specified herc:
,
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10.
Buycr will acknowlcuge existing tcase(s) by illitialing sait.lleasc(s) at time ofsiijuillll Ihis Agrecll1cnf if I'mlltrly i~ leased.
(0) Seller willllot cnter into any new lcases, written exlensiun of cxisting lenses, if any, or at.lt.lilionallellSCS for llie Propclly without
wrillell consent of the BUyer.
7, DATESn'IME IS OF TilE ESS.ENC'E (5~01)
(A) The said dale for selUement alJd all olher unles nUll times referred to for lIlc pCl'fOtlllllllCC of {IllY uf lhe ubligatiuns of this Agreemellt
are hereby agreed to be ofLhe eS$CIlCC of this Agreel11clIt ,
(0) For the pUI.poses Qf this Agreement, llIunber of days will bc euul1\eu from lhe uate of exC'_culloJl, by cJ\l;ludiug lhe day llus Agrcement
was eJ\eeuteo and iucludillg the Inst dRY of the lime pel"iou.
(e) The date ofsettlelllellt is Ilot extenued by allY other provision of this AgreclIlellt nnd lII11Y only be cJ\lcm!cd 1.>y wlittellllgrecllleut uflhe
parties,
8. IrlNANCING CONTINGENCY (5-0 I)
o WAIVED, This sale is NOT contingent 011 fillRnciug.
00 ELECTED
(A) Tllis sale is contingent upon Buyer obLaluing [lllancing as fulll.1ws:
I, Ainoulltofloan$
2. MinimurnTerlll
3. Type of loan
4. Buyel' agrees to Rccept the Interest rate RS U1ny Ile cunrmiUed hy the lemlel-. lIpt 1\' C:\l;CCU ,I nll\.~ill1\1m (nterest rule of
%,
(IJ) Within 10 days of the cxecution oftl!is Agreement, Buyer will make a complctcd, writtcn 111'plicI1tiolltn I1l'CSl'llllSihlc l~lIdcr nco.;unling
l(J thc terms avol'e, Tile Drolle,. fvr Duyer, if allY, olberwlse the lhul~tI' (01' Seller, is llutlll1rized t{l cllmmllllicllle with the lender
for the purposes of Ruistillg III fhe 10RII process,
(C) I, Upon receipt of a financing commitment, Buyer w'
1, Fh\Rndng commitment dRte r. 4 . UnlcJ>S
otherwise agreed to in writing by Buyer and Sell r, i, ~i~' rnmillllenl is not n~ccil'cd hy Sellcr by the abuve Jnle, all dl."-!,usit
monies paid on account of purchase price will be returned promptly to Duycr Rml this Agreement will be YOlO. Buyer will be
responsible for any premiums for mechanics lien insurance nlld/or tille search, or fee t'or cancelllltiOIl ufSaHlc, ifnny; AND/OR
any premiunis for Oood insurauce amI/or fire insurance with extendet.l coveragc, illsumllcc binder charges lll' cDIll.;dlution Ice, if
any; AND/OR UllY appraisal fees allU cha("ges paid ;fllltlY811CC to lClltlCr. rf~'-
9. ZONING CLASSIFICATION (5~Ol) ~ r
~aiJure of this Agreel~ent ,to eontailll~le ~olling c1a,ssificatio," (exct~lill c~s w,here the property. (and enchllaree~ lhereof. if SUVdi"'idl\hl.~~~:flk
IS zoned solely or prunanly 10 permit smgle-fanuly dwelllllgs) WIll render thl$ Agreement vOllJable at the oplrull of the Uuyc!", ancl, If'" l:v
voided, BlIY deposits tendered by lhe Buyer will be relurned to the, Qu er without any requirement for cumt nction. ." r < . "
ZonlngC"u~mc"tiO"; I~. .~.f. ,,~ .......f - {.').'I Irv
ZONING CONTINGENCY (5-01)
o WAIVED
00 ELECTED, Within 30 days of lhe executioll.()f this Agreement by all pprlies, Suyer will verify lllst t/xe prollaseJ use vf llle
Property as 5000-6000 SF Off. B1da is permined, In the event the proposed use is not permiUed, Duyer'will, wltllhr the lime
give" fl)T YeTlficJlth'n, notify Seller jJl writing thaI the proposed use oCthe Property is /lot permilted ami nuyer will (check only one):
Qg OIJUOll 1. Within the time for verifying the zOlllng dAnlOc.ntlon, notify Seller, in writing, of Buyer's decisiolllo proceed with
the pU[{:hase of tile I'ro11erty or terminate the AgreemenL Should Duyer elect to terminate the Agreement all t.Ieposit monies paid
on account of purchase price will be returned promptly (0 Buyer aud this AgrccllIcllt will be V01D, J?niluJ't' of Duyer lu l'rol'hle
written no lice of Duyer's decislOIl will conslltute n WAIVER of this contlngellcy 111I\1 Buyer necellts the I'roperty am.l
agrees to the RELEASE-set forth In parllgr"llh 25 ofthls Ag.'eelllent.,
o 01Jlioll 2. Make applicatioll for approval (or vllriancelnoll-conforming use/conditional use/special exception) fi'um
(municipality) to use tbe Pwperty 115
yco("s
(proposedusc),
(A) Such applicaLioll will be made on or before
(0) Buyer will pay for applications, legal fees, engineering IUld any other cost associated with ob\aining apprlJvElt.
(C) If the municipality requires the application to be signed by the current owner, SeHer agrees (0 do so,
(D) If a final, unappealable approval is not ovtained by , all deposit
mOllies paid 011 accolllIt ofpurdmse price wi.IJ be returned pl"Ol11pLly to Buyer and this Agreemellt will be YOlO.
11. STATUSOFWATEn(5~01)
Seller represents U111t this Properly is served by:
lID PublicwaLer
o On~site waler ~
g ~~::nU"ilYW"". I I COEl'
Seller further warnlllfs Utat this system(s) is/are fully paid for as of Ihe execution dale of tbis Agreemellt.
12. STATUS OF SEWER (5~OI)
Seller represents that Property is served by:
00 Public Sewer
o Community Sewage Disposal Systen~
DOff-Properly Sewnge Disposal System
o Individual On~Lot Sewage Disposal System (See SeV(age NoHce I)
o Individual On-Lot Sewage,Disposal Syslelll ill Proxhnily to Well (See Sewage Notice 1; see Sewnge Notice -I, if applicable)
o Ten-acre Permit Exemption (see Sewage Notice 2)
o Holdillg Tank (See Sewage Notice 3)
o None (See Sewage Notice 1)
o NOlle Available (See Sewagtl Notice 5 or SewlIge Notice 6, as applicable)
o
Sellcr further warranls /JUtt Illis syslem(s) is/are EIIUy paid for as oftJle datc of this Agreemcnt.
13, PROPERTY DEFECTS DISCLOSURE (10-01)
(A) Seller represents and warrants that Seller has no knowledge except as notec.l ill this Agreemenl that: (I) The premises have heeu
contaminated by allY substance in allY manner which requires remediation; (2) The Proverty col/tains wellallds, nvud plaills, V[ !illY
other environmentally sensitive areas, development of which is limited or pl'ecludet.l by law; (3) The Properly contains asbcstos,
pvlydlloriualcd viplles:tyls, lead~based Palllt or 1I1IY othcr SUVSlllllet:, lhe removal or disp03ill of which is subject tt> allY law or
regulation; and (4) Any law has been violated In the handling or disposing of any material or waste or the discharge of any material
. into the soil, air, surface water, or ground. water,
~/ Ii:.-;o<-~-'"
Duyer'Initials: -.' . A/S~C I'oge 2 or 6 Sillier .lnlth,ls: .t.---
- .---
. PrOllu<:ed ..~h ~pFo''''- by I\E F"'mltolel, lLC looZ!] Flllnn MUe n"ed, I.:Unlotr T<I""'.llIp Mltlrlgen 411U3\l, 1\l0ll' 383-9'b05 H'llQ)I.lF)(
(8) Seller ami Buyer acknowledge thal AllY Broker identified ill this Agreement: (1) Is ~ liccnsed I'Clll eslale Inoker;.(l) Is 1I0lt1 e~pcrt in
conshucUoJl, engilleering, or ellViromnentaC lllulters; nnd (3) Has llOt maue lUlU mil nOllllR.k.e lUl)' J"epreSeJl~atlollS. or w Hnlltl~s .1\01
conduct investigations of the environmenlal contlitioll or suitability of the l'rollerly OJ" any adJacelll propeliy, mclutllllg but lloll1ll11ted
10 llJ(lse comJJtio1l3 listed in pnragrllph 13(A). .' .... .
(C) Seller agrees to indemnify rmd to hold Broker harmlcss frolll ami against all clalllls, demnmls, or lra&J!J1ICS, Uldudm~ aUuHlcys fees un,'"
comt cosls, which urise froul or !Ire rel!lted to the environlllental conditiOll or suilabililY of lhe PnJpcrty Plior 10, dUlmg, or IIncr Seller s
occupation oflhe Property including without limitatiol1 /lilY cOllcliliollllsled in paragraph IJ(I\).
(D) The Ilrovisions of this Section will survive the pcr[orll1l1l1Ce of this Agreement.
1<1. NQTICES & ASSESSMENTS (5-01) . .
(A) Seller represellt~ us of Seller's execution of thiS Agreement, thnt no public illlpf'QI'CfltClIl, CQI/(JolllilliwII Qr uW~ler IISS0~mtLOll
assessments have bcen mnde against the Property which remnin unpaid amllhnt no nolice by II11Y govcrluncut or !)U?l11:: alllhonly has
Ix:cn served UPOll SeHer or anyone OJI Seller's behalf, including notices relating to violatiolls of zoning, huusing, bUlldwg, sllfety. or fire
ordinances whiclt remain ullcorrectet.!, and that Seller kllOWS of no condition that would CUllslitutc viulaHollllC allY such oft/mllllces
which rcmains uncorrccted, unless otherwise specified here:
CD). Seller knows of no other potentiallloticcs (htclUlJing violalions) IInd asseSSlllents exceplns follows:
17.
(C) AllY notice of improvements Of assessments received 011 or before the dnte llf Seller's accep(am:c ~,[ this AgrC1::mcl1l. III/JeSS
improvements consist of sewer or waLer lines not in use, shall be lhe respulI.~iui1ity of Selle-I'; IlIlY notices received thClcatlel" shllll be {hc
responsibility of the Buyer.
(D) If required by law, Seller will deliver to Duyer, 011 or befol'e seLLlemelJl, 0 ccrtil1cll.tiuJI frOllllhc Il.lll'lnprillLt' llJllniciplll llepUl'llIJCIlt ur
depaltments disclosing nolice of any uncorrected viulation ofzlJnillg, huilt.!ill&. safelY, or fire unlimmccs.
(E) Buyer is advised that actess to a ]Jublic road lllay l'c(\l1ire issuance of a higllW(lY ('(;CUjlIHll:J' pel/llil lium Ille Dl:l'fll'tl1\t'llt of
Transportation.
TITLE, SURVEYS AND COSTS (1~OO)
(A) The property is 10 be cOllveyeu free lUlU clear of all liens, eI\CUlllUl"!IlI\;eS, !lnd eilscmellts. EXCEPTING I-IOWEVER lhe liJlluwing:
existing deed restrictions, historic preservation restrictions or ordinances, building restridil.1l1s, onlilJlluo.:cs. ellselllcnts of roads,
easements visible UpOIl the ground, easements of lecoru, privileges or rigjll.~ of public 3CI'vjrc coJllVDJlies. lllllds use reslrictiuns
pursuant to property enrollment ill a preferential tax program if allY; utherwise the title \lI the nbove desClibed rcal eslule will be guuu
and markelavJe alld suc.h 8.'; wHJ he iJl5ured by a reputable Title InsurUllce COll1pnl1Y at thc regular rlltes.
(0) lnlhe event the Seller is unable to give a good and marketable title and such as will be ill~l1l'ed by a rcptllllulc THh: (l1~unU1o.:c Clll1ll'Rl1Y
at the regular rates, as specified in paragraph l:i(A), Buyer will have the oplioll of: (I) Tl'lking such title liS Seller CRlI givl'. willi IIU
change to the selling price; or (2) Being repaid all monies paid by Buyer 10 SeJler 011 lIccount uf purchnse price ,IlIU being lcimlmrscll
by Seller for allY costs incurred by Buyer for those items speci(ied in paragraph 1:i(C) aut.! in [lol'agruph 15(D) itclJl~ (I), (2), (J), ill
which case there will be no further liability or obligation 011 either of the parties heleto and this Agreement will becume VOID
(C) AllY surveyor surveys which 'may be required by the Title Insurallce Company or the ahSlrlle{ilJlI. ai/ome-y, fur {lIe jflCjl1lfUliflll of nil
adequate legal description of the Property (or the correction thereof), will be secureu aml paid for vy Sellcr. lIuwcvcr, allY suncy VI
sUn'eys desired or Buyer or required by lhe mortgage lender will be secured auu paid for by Buyer.
(D) Buyer will pay for tile following: (1) Tille search, title insurance and/or mechanics lien insurance or fce for cEll\ccllatiUll of SHIne, if
any; (2) Plood insurance, fire insurance willi extended coverage, mine subsiuence insurance, and cnllcellatioll fees, if any; (3) Appmisal
fees and charges paid in advance to moligage lender, ifany; (4) Buyer's eus/owary seHlemcllI cosls DlllJ IIccllmls.
COAL NOTICE
00 NOT APPLICABLE
o APPLICABLE. THIS DOCUMENT MAY NOT SELL, CONVEY, TRANSFER, INCLUDE OR INSURE TilE TITLE TO mE (,'0"1.. AND
RIGliTS OF SUPPORT UNDERNEATH THE SURFACE LAND DESCRIBED OR REfERRED TO HEREIN. AND THE OWNER Oil OWNERS
Of SUCH COAL MAY /-lAVE T/-IE COMPLETE LEGAL IUGHT TO REMOVE ALL SUCH COAL AND IN THAT CONNECTION, DAMAQE
MAY RESUl.TTO THE SURFACE OF THE LAND AND ANY HOUSE, DUlLDINQ OR OTHER STRUCTURE ON OR IN SUCH LAND. (This
notice is set forth ill the manner provided ill Section I of the Acl of July 17, 1957, P.L. 984.) "BUyer acknQwledges that he may not be
obtaining the righl of protection against subsidence resulting from coal minlug opernHolls, ami tllat tile property described herein mny
be protected from dwnage due to mille subsidence by a private contract wilh the owners of the economic iulerests ill the coal. This
acknowJedgemcllI is made for Ihe purpose of complyiug WiUl the provisIons (If Section 14 of the Ditumlnous Mille Subsidence aud lhe
Land Conservatioll Ad of April 27, 1966." Duyer agrees to sign the decu fl'OllI Seller whicll deed will contain lhe aforesaid (ll'Ovisioll.
TAX DElrEllRED EXCHANGE (JO~Ol)
00 NOT APPLICABLE
o APPLICABLE. In the event Seller wishes to enler into a deferred exchange for Ule Properly pursuollt to Sectioll 10J I of \Ile Internal
Revenue Code, Buyer agrees to cooperate willt Seller ill cOllnectioll wilh such exchange, iUcluding the executioll of such docmllellls as
JIIay be reasonably necessary to conduct the exchange, provided lhat there shall be no uelay in the agreeu-to seUlement un{e, amlllmt
any additional costs associated with the exchange ate paid solely by Seller. Buyer is aware that Seller alllicipates ussiguing its interest
in {/lfS Agreement lo a t11ird party Ill/dee all Ei(cllllllge AgreemeJl1 alld does hereby consent to such assignment. Buyer shall 1I0t be
obligaled to take Litle to 1lI1Y property other thall the Property described ill this Agreement. Seller shall indemnify and hold hannless
Buyer against any liability which arises or is claimed to have lU"isen frOlll allY aspect of the exchange transaction.
COMMERCIAL CONDOMINIUM (1U-Ol)
~ NOT APPLICADLE
o APPLICABLE. Buyer adwowledgcs Ihat Ule condominiulll unit (0 be \ransfeu-ed by the lerms uf this Agreement ill intended for
llonresidentlaluse, and the Buyer Il1UY agree to modify or waive the applicability of certain provisiolls of the Uniform COlldOlllinlum
Act ofPennsylvania{68 Pa C.S, ~JIOI el. seq.). .
RECOROING (5-01) 111is Agreement will not be recorded ill the Office of lhe Recorder of Deeds or III allY olher oWce or place of public
record. If Buyer causes or permits this Agreement to be recorded, Seller may elect lo trealsuch act as a breach of this Agreemellt.
ASSIGNMENT (3-85) lllis Agreement will be binuing UpOII the parties, their respective heirs, personal represenlatives, gU[J[diIlIlS and
successors, lUld, to the extent assignable, on lhe assigns of the parties hereto. 11 is expressly understoud, however, that the 13uyer will /lot
transfer or assign Ihls Agreement withQUlthe written consent of the Seller.
DEPOSIT AND RECOVERY FUND (l-lJfJ)
tA) Deposits paid by Buyer within 30 days Qf settlement will be by cash, cashier's or cerH[\ed check. Deposits, regw'dless of Ibe form of
paymenl and Ule persoll designated as payee, will be pllld ill U.S. DollArs to Droker or parly identified in paragraph 3(0), who will
retain them ill an escrow accoulll until consummation or termination of this Agrcement ill confurmity wilh all applicable laws /lud
regulations. Any uncllShed check tendered as deposillllay be beld pellding the Elceeptance of this offer.
(D) In fhe evelll of a dispute over enlitlementto deposit monies, EI broker holdiug the deposit is required by the Rules IIlId Regulations of
Ihe Stote Real Estate COlllmissiotl (49 Pa. Code ~J5.327) to retain the lllunies ill escrow until the dispute is resolved. In the event of
litigation for lhe return of depQsit monies, '[\ broker will distribute the monies liS direetell by II fnm! order of court or (he wriUen
agreement ofthe parties. Buyer alld SeHer agree that, ill the event allY brokcr o{ affiliateu IJcCllsec is joined jll jWgnlion for lhe return of
deposit mouies, the attorneys fees alld costs oftlte brokcr(s) and licensee(s) wiil be paid by Ihe party joining thelll.
(C) A Real Estnte Recovery Fund exists to reimburse allY persons who have obtained a fiual civil judgmcnt against a PCllnsylvllnia real
estatc licensee owing to fraud, misll:presentation, or deceit ill a real estate transaction and who has bcclIullaole to eollec! {lie judgment
aner exhausting all legal Rlld equitable remedies. For complete details about Ule FUllO, call (717) 783-3658, or (800) 822-211J (wilhiu
Pennsylvallia) and (717) 783-4854 (outside PCllllsylvRllia),
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MAINTENANCE ANU IUSl( 01' LOSS (5-01) . . i
(A) Seller willllJainlllill Ule Pmperty, and UHY persollal prupcrly spedfictlllcreill, ill its present cOlllhllOI~, norlllal wc~r oud t~nr expetLeu. .
(0) Seller wlll promptly notify the Duyer if, at any lime prior to lilt time o[SCUlclUclIl, nil ol'any ~lUlllOn l1flhc I'lUllclly IS dcSllUYCU. Ul
ua/lll/geu as a resuH of allY cause whatsoever. .' .'
(C) Seller will bent risk of loss from [ire ur olher causes ulllillimc of sctUelllClll. III {he evellt {lmt llmllllgc 10 8UY PWPC1IY.",ll;!UUCll Jl\ t1us
salc is nol repaireu or replaced prior Lo sculcmenl, Duyer will have UIC option of rescinding this ^grc~llICI1I lllJ(lrCl,:clvULg all ~llUIllCS
paid 011 accounl or of accepting (he Properly ill ils tllell comlilionlogcLher wilh the proceeds of allY lll!lurnlll.;~ rc!;tI~cty uutallled ~y
Seller. Buyer is hereby notified tllO.t he/she lIlay insure his/her equitable intelest ill this {'roperty as of the tlllle tflls Agreelllel1( IS
accepled.
CONVEMNATION (5~01)
Seller ha~ no knowledge of any current or pending condemnation or eminent domain proceedings .Ihal wuuld aHcclthe Pruperty. If allY
portion of the Property should be suvject 10 cOllllcJIIllatloll or eminent dOUlaill proccedings aOer Ule signing of Ihis Agreement, ~eller ~halJ
illll11edlal.cly advise Buyer, in wriling, of such pl"ocecdiugs. nuyer shall have the option to terminate Ihis AgI'celllcll( by proviJmg \w/llclI
notice to Seller within fifteen (15) days aftel" Buyer 1eams of the tiling of such proceedings, ill which case Scller shall returlJ to Utlyer all
money paid on nccount of the pureha.se price by l3u)'er. D"}'el"t fill/al"e to ,"'ovwe npUce lIf lel'lllillllUOll within the tlllle Slnled will
constitute n WAIVER of this eOll!lngellCY nnd all otiler ttrllls ufthls Agreemcnt remain ill full fur\:e "lid erred.
WAIYElt OF CONTINGENCIES (I~UI})
In the event this Agreement is contingent 011 Buyel's right to inspect nnd/or repair the Properl)', IIl/rH" {/lilllre /u (')lel"(l.~e sHly of Ullyer's
optious specified in lhe contillgellcy pl'ovislon(s) wilhln the time limits will cOII!litllle II \V AIVE;Jt or thnl nllllingelli:Y nnd Duyer
",<,cepa tile Property lUUJ agree! 11} the It.fi.LEASE ~el forth in I'nrngrAjlh 2~ of lhl~ ^~reelllelll.
HELEASE (1.00) Duyn hueby releRses, qllil dnillls nnd furever dlsch"rges Sln,LEn, ALL LUU)I<lmH, lhell" LIC'l1NSl!;If..S,
EMPLOYEES, AIIlI nl1J OFFICER or PAlt.TNER of nnJ oue of them nud nn)" othel' l'EltSON. lillt.lH, ur CQlU'OllATlON who
lIIay be liable by or 1I11'ough thelll, froll! nlly nnd aH c1l1ims, louu (II' de(lfall(l,~, illdlldill~. '",t Iwt IImil\'!d lo, IleI'SIJllRI injuries 1111I1
jlroperty dAIIIAge IIl1d all of the cOllsequellus Ulel'eof, whether \lOW knQWII Ill' 1101, which IIlKY nri,e frolll Ihl' pre,ellce "l termites or
olber lyoQ[J-uorilJg insects, nu]oll, lead-bllsed pRint ha7.llnls, ~lIvi"olllllellllll hnuuds, allY deferts ill lhe ilHlividnnl IIII-h,( ~ewRge
disposal system or defidenclu ill (he oll.site wHlel' service system, 01' allY lIer~cts IJr cOl1ditilJlI~ llll (fie l'nIIJI'I'(Y. Tbj~ fe/cllse Ifill
lI~rvlvesetllemellf.
REPRESENTATIONS (5-<11)
(A) Buyer understands that allY representations, claims, advertising, prOll1ulionlllndivitles, brochures or plnlls ur fillY kiullllL[lue by Seller,
BroKers, their Iieellsees, employees, officers, or partners me lIot a part uf thiS AgreOlncnt unless expressly illclHplJrall.:d ur ~tnleu ill [his
Agreement. H is further understoQd that this Agreement contains the whole agreemeut uetween Sellcr <<11\1 Uuycr IJIld lherc IIle /Iv lJ!JJCI'
terms, obligations, covenants, representations, statements or conditiolJs, oral or otherwise or nil)' kinu whatsuever cUl1ccll1illg this salc.
furttler1l10re, t/lis Agreemellt will I/O! bf; allereu, .!ImelldeJ, changed or mouified except in writing exccuted by the pmtics.
(B) II is understood thAt Duyer hll.5 hlslltcted the Pruperly uefon signing (his Agreement (lllclucling fixtures alltl KIlY 1'\!r5ollnl
prollerty sjledfically scheduled buehl), or has waived llle right tIJ do so, alld Iaas agreed to vun:hn.!c II III Its jlresclIl clmdltioll
unless olhcl'1vise s~n(ed ill (his Agreement. Duyer acluHlw'edges thAt Hrolu!f$, llleil' IlcelUI'~"', clIJplu}'cl'3. ulliceu or "nrtllers
have nolllJnde an indepellden( exAminAtloll or detenuinnUoll of lhe sh'ucllll'nl,lOUndllen of lhe I'roperty, lhe nge UI' cOlldltiull
of III! tompUllelll$, ellvJrollnJental caudlllol1s, the )lermlUed uses, ur of cOlldlHulIs ulslillg ill (he locllle where 1111 I'rullerty is
situated; nor bon (hey made n llIeChlllllcnllllspecllulI of nny uf the systellu contained therein,
(C) Broker(s) lnay perform services to assist unrepresented parties in complying wiLh the terms of this Agreel11cnt.
(D) The headings, captiOl1s, and line numbers ill this Agreement nre meall' ollly tQ make it cnsier lo filld lhe: IJllroF,ruphs.
DEFAULT (1-00)
ShQuld Buyer:
(A) Fail tQ make any additional payments as specified ill plltllgraph 3; OR
(9) FUfIJish faJ~e or ine011lplete information to Seller, Broker for Seller, Broker for Duyer, or Ule lender, if allY, ClJllceming lhe BUYCl"S
legal or finaucial slntlls, Ot [aillQ cooperale jJl tbe pmcessing of the loall npplicatlon, which nets would result inlhe foilute to obtain the
approval ofa 10011 commitment; OR
(C) Violate or fall to fuUiIl and perform any other terms or conditions of this Agree:lllent;
then in such l:ose, Seller has tile option of retaining all sums paid by Buycr, including the deposi! mOlljC3, I) on necouJ\t of purchase
price, or 2) as monies to be applied to Seller's damages, or J) as liquidated daUll1ges fQr such ureal:h, as Seller lIIay eket, ullless
otlll~n,.;se thrckcli beJow.
lXI Seller is limiled to retaining sums paid by Buyer, including deposit monies, us liquidaled damages,
If Seller elects to retain all sums paid by Buyer, including deposit monies, as Iitluldated damages, Duyer and Seller will be releascd
from further liability or obligation and this Agreemcll! wJl/ I1e yom.
CERTIFiCATION OF NON~FOREIGN INTEREST (10-01)
o Seller IS a fOJ"eign person, foreign corporation, fordgn partnership, foreign hust, or foreign estate subject to Section 1445 of lhe
Internal Reve:lIue Code, which provides that a transferee (Duyer) of a U.S. rent property inlereS!111ust wi1lIl/(]JJ tux if the lrsllls[e,w
(Seller) is a [oreigll person.
lID Seller is NOT a foreigll persoll, foreigll cDrporalioll, foreign partnership, fUl'eign trust, OJ' [oreign. estate as defiue:d by the Internal
Revenue Code, or is otherwise 110t subject Lo the tax withholding requirements of Se:ction 1445 of the Internnl Revenue Corle. To
inform Buycr that tllC withholdillg of ta.'\{ is 1I0L required UpOll lhe saleldispusilion o[ the Property by Seller, Seller hcreby agrees 10
fumish BUyer, at or before closing, wilh the following:
o An affidavit stating, under penally of perjury, 1I.)e Seller's U.S. taxpayer hlentificatiolJ lIumber anu lhatthe Seller is not a fureign
perSOll.
D A "qualifying statel1le:llt," as defined by statute, that lax withholding is lIot required by Buyer.
o Olher:
Seller understands thal any docunlentatiotl provided under Ulis provisioll may be disclosed 10 Ihe Inlernal Revenue Service by Buyer, and
thot allY false statements contained tllcrein could result in punishment by fille, imprisollment, or buth.
ARDlTRATlON Olr IHSrUTES (1-00) Buyer and Sellet agree to arbilrate any dispute bctweenlhelll that eallllot be wnieable resolved.
AOer written demand for arbitmtlon by either Buyer or Seller, each party will select a competent awl disin{crcsled !Ifbitralor. TIlt two so
selected will select a third, If $e1ection of the tllird arbitrator cannot be agreed upon within 30 days, either parly liIay request that selection
IJe matlc vr ajl.ldge of a court of record ill llle county ill which arbitrnlioll is pending. Each party will pay its chosen arbHralor, and bear
equally expenses for tile third and all other expenses of arbitration. Arbitration will be conducted ill aecol'dollce wHit the provisions of
Pennsylvania Commol, Law Arbitration 42 Pa. C.S.A ~7341 d. seq, This agreement to arbitrate dispules arisil1g from this Agrcement
willsurvivesetUement.
DROI<ER INDEMNIl'lCATlON (10-Ul)
Buyer and Seller represent that Ihe only Brokers involved ill this InlllsactiOIl aIe:
and that the: hallsaetiOll has not been, brought about through the efforts of anyone otber than said Brokers, It is agreed that ifany claims [0;
brok~l"age commissioll!; or fees are ever mlK1e agai/lst Buyer or Seller jll connectiOJl willl IIlis tUlllsaetioll, each party shall pay its own legal
fte:s and costs ill connection with sudl claims, It is [urther agreed that Buyer Emd Seller agree I',l indemnify and hold harmless each other and
the above-listed B.rokers from and againstlhe non.pe:r[ormance of this AgreCljenl by either parly, 8ml from allY claim Qf loss or claim for
brokerage commissions, including nil legal fees and costs, that may be III ue by allY perSOll or enMy, This l1<1ragrllph slllll1 S"u/"Yive
settlement. .
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NOTICES AND INFORMATION
INFORMATION REGAlilllNG TAX PRORATION
For purposes of prorating real estate taxes, U1C "podou:; covered" by the IIlX bills lire as fullows: [or illl call1llies llud municipalilies ,ill
Pennsylvllnin, alld for the Philadelphia, PiUsburgh, and Scranton school districts, the la:<. bills Il\"C fur the period Jalluary 110 December 3 L I'or
all olller school Jistric!s, the period covereu by the {ax 11i1l is July j to JUlie 30.
NOTICE 1:
NOTICE 2:
NOTICE 3:
NOTICE 4:
NOTICE 5:
NOTICE G:
SEWAGE NOTICES
NOTICES PURSUANT TO THE l'ENNSYLVANIA SEWAGE l'ACILITIES ACT
THERE IS NO CVIUWNTL Y EXIS'}'JNG COMMUNiTY SEW AGE SYSTEI'\'l A V AILAULE l'OR TllI~ SULlJECT
pnOPERTY, Section 7 of Ute Pellllsylvania Sewage Facilities Aclllroviucs that llO ~ICfson shall illS{l1l1, COllstruct, IC(fllest bid
proposals for construction, aller, repair or occupy any building or slrudure for whic-ll all individual sewage syslem is lo be
installed, wHhout first obtaining a permit. Duyer is adyised or {Ilis Ilt.lkc thaI, bcfOl'e Sigllillg Ihis ^!!,l'Celllenl of Sale, Duyer
should contact the local agency ehllrged wilh ntlminislcring the Ad to determiue the pmcctlure amlrC\[lIiremellt5 for obtaining
It permit [VI' all imJjyjduaJ sewage systelll. The IOl.:al agcllry chnrgetl with adllllnisleriug lhe Ad willIH.~ lhe lIlulliciplIlity whCI'e
the Property is 10cMed or that municipalily work.lng cooperfllively wilh others.
TlUS l'lmPlmTY IS SERVICIW HY AN lNJJ1VlDtJAL SI~WAGE 8YSTl'~'H lNSTi\L1.,lf.1J IJNUEH TilE
TEN.ACRE PEHIHIT EXEMrTION PROVISIONS (Jl1 sm:TlON 7 Uf TIlIf. I'IJ.NNSYLVAN"(A :;:tiaVAGE
FACILITIES ACT. (Section 7 provides thllt a permit may 1101 be required bcflJre Imtallillg. cOLLslructillg. IIwardillg
a contract for constructioll, altering, re~lRidl1g or cOlUleclillg It' UIl imlividuaJ sew;lge system where a tell.aoc l)fU'cel or
lot is subdivided from a parent troct after JOlluory 10, 1987.) l3uyer is IlJvi~cd lhat. soils alltl Silc testillg WCl'e l1ut
cOllducted and IlJal, should the system malfunction, the owner of the Properly 01" propcl-tics SCl'vil.:eJ by thc systcm at the
time of a malfunction lIlay be held liable for any cOlltamilmliOll. pullution, pl1ulic hcallh lllll.f!lt! ')1 flul.muee wtlidJ occurs
as a result.
THlS rUOI'EUTY IS SERVICED DY A HOLDING TANK (l'EllMAN~NT on Tl~Ml'OllAJlY) TO W(lJCII
SEWAGE ]S CONVEYED UY A WATER CARRYING SYS'l'J!'.M ANU WHICH IS Ul~SIGNEIJ AND
CONSTRUCtED TO FACILITATE ULTIMATE DlSJ'OSJ\L OF THI!: SKWAGF. A'J' ANOTHEH SITU;.
Pursuant to the Pennsylvania Sewage Facilities Act, Seller must provhlc a history of lhe llLLlI\III1 cost of mainlailling the
lank from Clle date of its installaliOll vr December 14, 1995, whichever is Inter.
AN INDIVIDUAL ,SEWAGE SYSTEM lIAS DEEN INSTALLED AT AN ISOLATlUN VlSTANCE JlllU!\1 A
WELL THAT IS LESS THAN TIlE DISTANCE SPECIFJlf,D Dl' IlEGULATJON. The regulatiol1s nl 25 I'a.
Code ~7].13 pertaining to minimum horizontal isolation distallces provide guidllllce. Subsection (b) uf ~7J.1J stlllcS
that the minimum ilorizolllaJ isolation distance between an individual water sU1JJlly or walcr supply syslem sudioll line
and treatment tanks shall be 5Q feet. Subsection (c) ofFJ.IJ states that the horiz.ulltat isulalion dislElIlCC uetweell the
individual water supply or water supply sys\cm suction, line and the pcrimcter ur the llusurplioll mea
shall be 100 feet.
nus LOT IS WlTlllN AN AREA IN WlIlCl-ll'EllMlT LIMITATiONS AUE- IN EI'liECT ANU IS SUH.II1Cr TO
THOSE LIMITATIONS. SEWAGE Jl'ACILlTlES ARE NOT AVAILABLE FOR TillS '~O'f Mm CONSTJtUC'fION
OF A STRUCTUllE TO DE SERVED BY SEWAGE FACILITIES MAY NOT BEGIN UN'I'lL TlIE MUNICU'ALlTY
CO/lU'LETES A MAJon I'LANNlNG ltEQUJJlEl\iENT I'UItSUAN'l' TO TIlE l'ENNSYLVANIA SEWAGE
FACILITiES ACT Ai'll> REGULATIONS PllOMULGAl'ED TUEIlliUNUEll.
A nl!.QUIltED REVISION FOn. NEW LAND DEVELOl'MENT, OR AN EXCEPTION TO THE llEQUHlliMENT
TO REVISE, OIl A REQUIRED SUPPLEMENT HAS NOT DEEN APPllOVED trOll nus LOT. SEWAGE-
FACILITIES ARE NOT A V AILADLE FOR TIllS LOT AND SEWAGE lrACILITlES WiLL NOT DE A V AILADLE,
NOR MAY CONSTRUCTION BEGIN UNTIL SEWAGE FACILITIES I'LANNING HAS DEEN AI'I'HOVED
PURSUANT TO TIlE PENNSYLVANIA SEWAGE FACILITIES ACT AND llEGULATIONS l'llOMULGATEIJ
TILEREUNDER.
EXPERTISE OF REAL ESTATE AGENTS
Pennsylvania Real Estate Agents are required to be licensed by the Commonweallh of Pellnsylvania and arc obligated 10 disClose ndverse
factors about II. propctly thaI are reasonably apparent 10 someOlle willi ex.pcrlise jn Ule rnarketillg of real property.
i (A) If Buyer wanls information regarding specific conditions or components of !lIe properly which arc oulsidc lhe Agcnl's cllverlise, lhe
5 advice of the appropriate professional should be sought.
7 (B) If Buyer wants financial, legal, or any othcr advice, Buyer IS encouraged (0 seck the services of 8/1 accounlaul, lawyer, or olher
B appropriate professional.
9
o COMMUNICATIONS WITH DUYER AND/Oll SELLEIl
I
,2 Wherever this Agreement contains a provision lhat requires or allows eomll1unication/delivery 10 Ihe Buyer, SAid provision shall be satisfied
i3 by communicalionldelivery to tile Broker for Buyer, if any. If there is 110 Brokcr for Buyer, all such provisions lIlay be satisfied ollly by
;4 communica!loll/dclivery beillg ll1Dde direcUy to the Buyer, Ullless otherwise agreed to by the parlies. .
;5
;6 Wherever !l~is Agrcemellt contains a provision that requh'es or allows communieationldelivery 10 {he Buyer, said provision shall be satisfied
j7 by eommunu:ation/delivery to the Broker for Seller, jf allY. If there is /10 IJrokcr for Seller, all such provisiuns may be satisfied only by
58 communication/delivery beillg made direelly 10 tne Seller, unless otherwise agreed 10 by the parlies. '.
(j copy
AfS-C I'age 6 of G
P,o<IuI>ed with ZlpFmm'" by RE Foo-mlNel, lLC 18026 Fnlun Mnl Rood. Cfhfoo TlIWnsNp- MIc:I(lgan 400J8.18lJV/:JDJ.9Dro
T.~7IOJ',Zf1<.
1. GOVEHNING LA-W (lU-Ul) .
This Agreemenl shall be construed ami iutcrpreted ill Bcconlm!(;c willi the laws of the COllllllOllwcnlth uf l'clllLsylvallla.
2. NOllCE BEFORE SIGNING (5-01) .
Durer and Sellcr acknowledge Ihat Drok.ers have advised them to !;;QllsuH amI retain ex.perts cOllceming the I,ega] and. tM ~fr~cts of lllls
Agl-cemcnl and the cOllltJlelion of the sale, as well liS the conditklll nnd/or legality of the ProperlY, ,iJJ~ludlllg, b~lt ~\lIl h~l1lled tu, U~e
Propel'ty's impruvements, equipment, soil, tenancies, tille ami environmental IlSpeels, Return by fneslllllle trnnSllllSSIOll (I'AX) uf thIS
^greemen~ and all addenda, bearing {he signatures or Ill! llarlle-s, constitutes ncceptance of this Agreement.
n. NOTICE
All notice requiremcnts under lhe provisions of this Agreemcnt or by aplJlicatioll of statutory or (;On\1111)1I law will be nuuresscu to lhe
appropriate party, at the addresses listed below via allY mealls of delivery as llIutually agreed t111011 by the !lHlies and staled hen:;
If to Seller;
With n copy to:
lrlo Buyer:
WithnwlJyto;
lID Buyer hl\s received the ComulIIcr Nolice I\S lulol'led by the Stnll~ ncn] Esl~le CUlnlllis8iuII nl49 1'1\, C~,d(' ~j;IUj(l.
o Buycr lias I'cceived a slntement of Buyer's tsliJIIRtctl c10sluK cosl. befure signing thill AgreellHml.
o Duyer bas receivetl the Dcposit MOllcy Notice (fur coopel'l\(ive salu w"ell Broker fUf' Seller b Illlhliu,2 tlel'u~illllulley) IJdOl'e
siglllngtbis Agreemcnt.
BUYER
DATE ,(/ltf/t,/
ssrnll
I'AXII
DATI~
ssrn II-
FAX#
l)ATE
ssrn n
FAXf~
DVYER(S) NAME
Mailing Adtlr,ess
Phone tis
E~Mail
WITNESS/ATTEST
BUYER
DUYER(S) NAME
Mailing Address
Phone#s
E-Mail
WITN~SS/AnEST
UUYEn(S) NAME
Mailing Atldress
Phone#s
E-Mail
o Seller hns received the Consumer Notlee as Ildopted by the Slate Ueal E.l'lnle Cvmlllisslon ht 49 rho Cotle ~35,3JG.
o Seller hilS received R statement of Seiler's estimated c10sillg cost! before signing this Agnemellt.
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6
7
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VOLUNTARY TH,A.NSlrElt OF COllPORATE ASSETS (if applicable): The undersigned ackllowJedgcs Ihat lJC1sM is lIutllQrJzeu by the
Board of Directors to sign Ulis Agreemenl on behalf of the Seller corporation and that this sale does not consUlute a sale, lease, or
exclulOge of ail or substanlially all {he property llnd a1;Se!s of the corporation, such as would require the nulhorizallOIl ur consent uf the
shareholders pursuant to 15 P,S, ~1311.
SELLEn'S ;SS:EI'fANI'E' S,II"hm"y ~"i'" '''0'' ",,""""" (ua~'! .~
WITNESsMrfEST \.. ':LC"~ ~,~- SELLEI};~~_
SELLER(S)NAMER,D JAM L.iJ.nitlld E'artnBrshi~ r./n Rip..hrtrrl McBride ssrnfl
Mailing Address
Phone#s
E-Mail
,)00 :
DATE !-'/.rh. "
WITNESS/ATTEST
SELLEH
FAXII
DATE
ssrrtfl
FAXN
DATE
ssrnll
f'AXII
SELLER(S) NAME
MaiJiugAddre58
Phonel#s
E-Mail
WITNESSfATIEST
SELLER
SELLER(S) NAME
Mailing Address
P/JollclIs
E~Mail
Ll COpy
A,lS-C r"ge 5 urG
Producld w~h ZlpFmm'" t>y RE Fl.llm.NII.llG 10025 rUlnn Mill "o&<!, ClIntoo l"wnlll,'" Mlchlgl" ~EllJJO, (000) ~03-\I006
H11101l,lFX
ADDENDUM
Thi~ Addendum to the Agreement for the Sale of Commercial Real Estate dated April 13,
2004, is made this I/-T.P' May 2004, by and between RDJAM Limited Partnership
("Seller"), and Mary Louise Hanley ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer have entered into an Agreement for the Sale of
Commercial Real Estate dated April 13, 2004, providing for the sale of Tract #2 and
Lot#6, Millennium Way, Hampden Township, Cumberland Count, Pennsylvania; and
WHEREAS, both parties desire to amend the Agreement regarding the use by
Seller of an easement crossing said property to be sold.
NOW, THEREFORE, intending to be legally bound, the parties hereby agree as
follows;
1. Both parties acknowledge that the property being sold is subject to a 20-foot wide
emergency access easement and which has recently been stabilized in accordance
with township regulations,
2. Both parties agree to and accept the location ofthe easement as shown on the drawing
identified on Schedule "An attached hereto and made a part hereof,
3. Buyer agrees to allow Seller along with Seller's family, close friends, employees, and
subcontractors and successors and assigns ("authorized travelers") to traverse said
easement, at any time, for the purpose of having access to seller's land located to the
south (formally Shoop property) of said Commercial Real Estate. In support of the
additional' authorized traveler' use of the easement contained herein, Seller agrees for
as long as the Seller utilizes the easement for said purpose, to provide ongoing
reasonable, maintenance, repairs, and snow removal for said easement.
4. Seller or Buyer shall have the right to improve said easement including but not
limited to paving, but anyone who shall hereafter disturb the condition of any part of
said easements shall put the same back to the identical condition, or as near thereto as
is practicable, as existed prior thereto. All costs of improving, altering, repairing or
maintaining the easements or rights-of-way shall be borne by those who shall make
such improvements, alterations, repairs or maintenance without the right of
reimbursement from any other owner, tenant, mortgagee, or other interested party.
5. No barriers, fences, curbs, signs or obstruction to the free and unhampered use of said
easement shall hereafter be permitted, nor shall any automobiles, trucks, motor
vehicles or other personal property nor any building or other structure be parked,
stored, constructed on any part of said easement.
6. Seller shall and will and hereby does release, indemnify, defend, protect and save
harmless Buyer from and against any and all claims, dernands, liability, damages,
costs and expenses, including without limitation, court costs and attorneys' fees,
resulting from any and all loss of life or property, or from injury or, damage to the
person or property of any person, firm, corporation or entity, including Buyer and
COpy
f ~ t. /'
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Seller and their officers, agents, and employees, arising out of or in connection with
Seller's (or Seller's agents', family, close friends, employees', subcontractors' or
invitees ') authorized use, maintenance, repair, renewal, reconstnlction or alteration of
said easement. Seller's release and indemnity hereunder shall survive any tennination
of said easement.
7. Said easement is for the benefit of Buyer and its successors and assigns as owner of
the Premises, in conjunction with use by Seller, and is appurtenant to and shall run
with the Premises, Buyer may, at no cost to Seller, use and pern1it others to use the
easement and any improvement located thereon, and Buyer may grant to third parties
easements for the use ofthe easement. Any relocation by Buyer will be subject to any
required municipal approvals.
8. Buyer reserves the right to relocate said easement at Buyer's expense, provided that
upon such relocation, the Premises shall enjoy comparable access as currently is
provided by said easement. Upon such relocation, Buyer agrees to execute and deliver
to Seller an instrument in recordable form evidencing the grant of the relocated
easement upon similar terms and conditions as provided herein.
9. Buyer shall have the right to notify Seller of any failure to perform its obligations
herein in writing at Seller's last known address. Should Seller fail to perform any of
its duties or obligations hereunder within ten (10) business days, Buyer shall have the
right (but shall be under no obligation) to perform and to make such repairs or
maintenance, or payments for repairs or maintenance as may be necessary to cause
performance of Seller's obligations hereunder, and Buyer, upon demand therefore by
Seller, shall promptly pay all expenses incurred by Buyer in connection with such
perfornlance.
10. This Addendum shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, and the terms Buyer and Seller hereunder
shall include their respective successors and assigns.
I I. This Addendum shall not be modified or any provisions hereof waived except in
writing signed by the parties.
IN WITNESS WHEREOF, the parties have executed this Addendurn on the day and
year first written above.
Witness:
-..........------.
Seller:
RDJAIvI Limited Partnership
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.F Richard A. McBrid~eileral Partner
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Witness:
Buyer:
Mary Louise Hanley
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ALEX S. '" SHIRLEY A.
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APARlA/ENT OmCE: DISTRICT
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LANDS NIL Of
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SHOOP
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APAI/TMENT OFFICE lJISTRICT
(RESIDENoo. USE)
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GRAPHIC SCALE: 1'- 60' CONlIUL11NG EHO_ """' "..,-
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7177325943
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10/27/2004 10:27 FAX 717 234 o~OB
GOLDBERG K^TZM~H
~ 008/00B
YERIHCATlON
I. Riohard A, McBride, Pre~idem and CEO ot'Herre Bros" Inc. . hereby ackllowJedge that
I am an authorized reprcsentalivc of Plaintiffs in thi~ actic.n and that j /lave read the foregoillg
Complaint and that the facts bUtted therein 81'0 In.,,, Md correct to the bMt nf "'y knowledge,
informalio" And belief.
I understand thar any false statements herein lire m"de subjl'!ct to penalties of 18 I'a. C.S.
Section 4904, relating to unsworn falsification to authorities
Date:
~~~~~
Richlll'd A, McBride
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court,
---------------------------------------------------------------------------------------------------------------------
HERRE BROS., INC.
And RDJ,A.M., L.P.,
Plaintiff
Vs.
CINEMAGIC
No. CV-04-5504, Civil Term
Defendant
I. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.): Defendant Cinemagic's Motion for Preliminary Objections.
2. Identify counsel who will argue cases:
(a) for plaintiff: Thomas Weber, Esquire
Goldberg Katzman, P.C.
320 Market St., Strawberry Square
P.O. Box 1268
Harrisburg, P A 17108
(b) for defendant: Charles E. Haddick, Jr., Esquire
Grant W. Schonour, Esquire
Dickie, McCamey & Chilcote, P.C.
1200 Camp Hill Bypass, Suite 205
CampHill,PA 17011-3700
3. I will notifY all parties in writing within two days that this case has been listed for
argument.
4.
Argument Court Date: Next available.
C(
.
Signature
Date:
If')~) 0
Charles E. Haddick, Jr., Esquire
Attorney for Defendant
..
CERTIFICATE OF SERVICE
AND NOW, this 13th day of January 2006, I, Charles E. Haddick, Jr., Esquire, hereby
certify that I did serve a true and correct copy of the foregoing Praecipe for Listing Case for
Argument upon all counsel of record by depositing, or causing to be deposited, same in the U.S.
mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows:
Thomas Weber, Esquire
Goldberg, Katzman, P.C.
Strawberry Square
320 Market St., P.O. Box 1268
Harrisburg, P A 17108
q
.
Charles E. Haddick, Jr., Esquire
.-1
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...
HERRE BROS., INC. and
RDJ.A.M., L.P.,
Plaintiffs
vs.
CINEMAGIC,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-5504 CIVIL
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HESS, OLER AND GUIDO, LJ.
ORDER
AND NOW, this ... '1 ~ day of March, 2006, the preliminary objection of the defendant
in the nature of a request to compel arbitration is GRANTED and this matter is referred to
arbitration.
~mas J. Weber, Esquire
;;:.6r1y J. Wismer, Esquire
For the Plaintiffs
~arles E Haddick, Jr., Esquire
~David Ziegler, Esquire
For the Defendant
:rlm
BY THE COURT,
~{/I'
7A. Hess, J.
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OF
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HERRE BROS., INC. and
RDJAM., L.P.,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
NO. 04-5504 CIVIL
CINEMAGIC,
Defendant
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HESS. OLER AND GUIDO. J.J.
OPINION AND ORDER
Before the court are preliminary objections filed by the defendant, Cinemagic. The
complaint in the case avers the following facts.
In April 2004, defendant, Cinemagic, entered into a sales agreement with R.D.J.A.M.,
whereby R.D.J.A.M. agreed to sell to Cinemagic real estate which Cinemagic intended to use for
a new office building. As part ofthe agreement, Cinemagic would employ the services of
RDJ.A.M.'s sister company, Herre Brothers, an electrical/mechanical contractor, in the
construction process. This requirement, which had been inserted by hand into the agreement
stated that "It is [Cinemagic's] intent to contract with Pyramid Construction Services to Build
new Facility [sic], who in turn will utilize Herre Bros. Inc. for mechanicallElectric Trades for a
reasonable cost." (Agreement at 2) As consideration for the requirement, R.D.J.A.M. agreed to
a reduction in the sale price of the property.
Once the sale was completed, Cinemagic's designated contractor, Pyramid Construction
Services, contacted Herre Brothers to start the construction process. Herre Brothers submitted
design drawings of the necessary mechanical and electrical components for the new building, as
"
,-
NO. 04-5504 CIVIL
well as an estimate of$138,360.00 for the work. After receiving the drawings and the estimate,
Cinemagic refused to work with Herre Brothers.
R.DJ,A.M. and Herre Brothers ("the plaintiffs") responded by filing the instant action in
October 2004, alleging two breach of contract claims: the first - by R.D.J.A.M. - that
Cinemagic had breached its agreement with R.DJ.A.M. that it employ the services of Herre
Brothers in exchange for a reduction in the cost of the real estate; and the second - by Herre
Brothers - that cinemagic had breached its commitment to use Herre Brothers, an intended third
party beneficiary of the agreement, for its electrical and mechanical needs. Cinemagic filed
preliminary objections seeking to dismiss the entire action because R,DJ.A.M. had agreed to
arbitrate all disputes that arose from the agreement, and because Herre Brothers was not an
intended third party beneficiary to the agreement.
DISCUSSION
We will sustain the first preliminary objection which will have the effect of referring this
matter to arbitration. The arbitration will include, of necessity, the question of whether Herre
Brothers was an intended third party beneficiary of the agreement, making Cinemagic's second
preliminary objection moot.
Under the Pennsylvania Rules of Civil Procedure, a party may file a preliminary
objection to dismiss a claim when there is a prior agreement to settle the claim by alternative
dispute resolution. Pa.R.C.P. 1028(a)(6). Clause 29 ofthe Sales Agreement between Cinemagic
and RD.J.A.M. states that the "Buyer and Seller agree to arbitrate any dispute between them...
arising from this Agreement." (Agreement at 4) Because the dispute between the parties-
2
..
....
NO. 04-5504 CIVIL
whether Herre Brothers is an intended third party beneficiary - clearly arises out of the
agreement, the claim should be dismissed and the matter resolved by arbitration.
Where it is clear that the dispute arises out of an agreement containing a valid arbitration
provision, Pennsylvania courts "favor the settlement of [the dispute] by arbitration ... to
promote the swift and orderly disposition of claims." Children's Hospital of Philadelphia v.
American Arbitration Association, 331 A.2d 848, 850 (Pa.Super. 1974). The parties' dispute-
whether Cinemagic was required to employ the services of Herre Brothers for its mechanical
and electrical work - clearly arises from the agreement and is therefore governed by the
arbitration provision. Because there is no question as to the validity of the arbitration provision
in this case, the parties' dispute over the status of Herre Brothers as a third party beneficiary
should be submitted to arbitration.
ORDER
AND NOW, this Z l' day of March, 2006, the preliminary objection of the defendant
in the nature of a request to compel arbitration is GRANTED and this matter is referred to
arbitration.
BY THE COURT,
/J~
Thomas J. Weber, Esquire
Carly J. Wismer, Esquire
For the Plaintiffs
Charles E Haddick, Jr., Esquire
J. David Ziegler, Esquire
For the Defendant
3
Thomas.T. Weber, Esquire
Attorney I.D. No. 58853
Carty J. Wismer, Esquire
Attorney I.D. No. 92598
GOLDBERG,KATZMAN, PC
p, 0, Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161; (717) 234-4161 (facsimile)
C ounse/ for Plainti(/'
HERRE BROS., INC and
R.D.J.A.M.,L.P.
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND CbUNTY, PENNSYLVANIA
v.
No. CV -04-5504
CINEMAGIC,
Defendants
CIVIL ACTION - LAW
PLAINTIFF'S MOTION TO COMPEL tRBITRA TION
AND NOW comes the Plaintiffs, Herre Brothers, Inc. and .D.J.A.M., L.P. (hereinafter Plaintiffs),
by and through its attorneys, Goldberg Katzman, P,C., who state:
1. On or about November 1, 2004, Plaintiffs initiated his breach of contract action against the
Defendant by the tiling of a Complaint.
2. On or about October 6, 2005, Defendant Ci emaglc (hereinafter Defendant) filed
I
Preliminary Objections arguing that Plaintiffs' Complaint shou* be dismissed because it involved an
!
issue subject to a valid agreement to arbitrate.
I
3. Furthermore, in its Preliminary Objections, Defe1dant argued that Plaintiff Herre Bros.,
Inc. did not have standing to bring the action because it was not a famed party or third party beneficiary to
the Contract between PlaintiffR.DJ.A.M., L.P. and the Defendantl
- ,
,
4. Argument was heard before the Honorable Judges! Hess, Oler and Guido on Febmary 15,
2006.
5. Prior to this Court's mling on the Preliminary Objections, Plaintiffs requested the
Defendant consent to submit this matter to arbitration by placing previously identified arbitrators in
contact so that a third neutral arbitrator could be selected. (See correspondence attached hereto as Exhibit
"A"),
6. On March 24, 2006, the Honorable Kevin Hess fil~d an Opinion and Order, referring this
entire matter to arbitration. (See Order and Opinion attached heretb as Exhibit "B").
7. On or about July 27, 2006, Plaintiffs once again requested Defendant consent to proceeding
with an arbitration in this matter by having the parties' previolilsly identified arbitrators select a third
neutral arbitrator. (See correspondence attached hereto as Exhibit :'C").
8. In addition, Plaintiffs' counsel has attempted to contact Defense counsel via telephone to
discuss arbitration in this matter.
9. As of the date of this writing, Defendant has not responded to Plaintiffs' repeated requests
to arbitrate or to this Court's Order of March 24,2006 referring this matter to arbitration.
WHEREFORE, Plaintiffs Herre Brothers, Inc. and R.D.J.A.M., L.P., respectfully request this
Honorable Court grant its Motion to Compel Arbitration.
By:
Thomas 1. eb r, Esquire (LD. #58853)
Carly J. Wi mer, Esquire (LD. #92598)
320 Market Street
P. O. Box 1268
Harrisburg, P A 17108-1268
(717) 234-4161
Attorneys for Defendant
Date: September 7, 2006
2
.,'\rthur L. Goldberg
, 1951-200'))
Harrv B. C';oldberg
, f 1 t)f,1-199(~)
Honald 1\,1. IZatzn13n
Paul T. Espo.,ito
Neil E. Hendershot
J. Jay Cooper
1'hon1,15 E. Brenner
f\.pril L, Stral-lg-l(utay
Cuy H. Brooks
Jerry f, Russo
Michael ), Cmcenzi
Thol1:as 1. \Vebl'..T
St::-ven E. Grubb
John [)eLorenzo
RCYJce L. h/1orris
David M. Steckd
Joseph 7\'1. Senlbrot
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1111
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A full-service law firm.
March 3, 2006
Charles E. Haddick, Jr., Esquire
Dickie, McCamey & Chilcote, P.C.
1200 Camp Hill Bypass, Suite 205
Camp Hill, P A 17011
RE: Herre Bros., Inc. v. Cinemagic
Dear C.J.:
I am in receipt of your correspondence of March 1, 2006. I did not
previously respond to your voicemai1 returning my call, wherein you outlined
your proposal. Candidly, my client and I did not think it offered much in terms of
a compromIse.
My client is prepared to defend the District Justice action. The defense
will include, but is not limited to, the simple fact that my client has not requested
a tap-in, and therefore, cannot be held responsible for the same. The tap-in is
exclusively for the benefit of your client. It is as a result of this fact that all other
purchasers of adjacent property have recognized their own responsibility and paid
the appropriate fee.
In terms of the arbitration, although an order has not yet been received, the
report of the argument indicates that it is almost certain that your Preliminary
Objections will be overruled and the claims of both of my clients submitted to
arbitration. In that we have previously identified our respective arbitrators, I
would suggest that we place them in contact with each other so that a neutral can
be identified and this matter pursued as quickly as possible.
I
!
EXI8T
A
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Charles E. Haddick, Jr., Esquire
March 3, 2006
Page 2
Please confirm that you still intend to use Jim Nealan as your arbitrator. If
so, I will pass his information along to Mr. Havas so that they can discuss the
neutral.
TJW /jlb
cc: Richard A. McBride
HERRE BROS., INC. and
R.DJ.A.M., L.P.,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
CIVIL ACTION - LAW
NO. 04-5504 CIVIL
CINEMAGIC,
Defendant
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HESS, OLER AND GUIDO, LT.
ORDER
AND NOW, this ;l. '1 ~ day of March, 2006, the preliminary objection of the defendant
in the nature of a request to compel arbitration is GRANTED and this matter is referred to
arbitration.
BY THE COURT,
Thomas 1. Weber, Esquire
Carly J. Wismer, Esquire
For the Plaintiffs
~Al
7A. Hess, J.
Charles E Haddick, Jr., Esquire
J. David Ziegler, Esquire
F or the Defendant
:rlm
1 ......
.13
.~
HERRE BROS., INC. and
R.D.J.A.M., L.P.,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
NO. 04-5504 CIVIL
CINEMAGIC,
Defendant
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HESS, OLER AND GUIDO, LT.
OPINION AND ORDER
Before the court are preliminary objections filed by the defendant, Cinemagic. The
complaint in the case avers the following facts.
In April 2004, defendant, Cinemagic, entered into a sales agreement with R.D.J.A.M.,
whereby R.D.J.A.M. agreed to sell to Cinemagic real estate which Cinemagic intended to use for
a new office building. As part ofthe agreement, Cinemagic would employ the services of
R.DJ.A.M.'s sister company, Herre Brothers, an electrical/mechanical contractor, in the
construction process. This requirement, which had been inserted by hand into the agreement
stated that "It is [Cinemagic's] intent to contract with Pyramid Construction Services to Build
new Facility [sic], who in turn will utilize Herre Bros. Inc. for mechanical/Electric Trades for a
reasonable cost." (Agreement at 2) As consideration for the requirement, R.D.J.A.M. agreed to
a reduction in the sale price of the property.
Once the sale was completed, Cinemagic' s designated contractor, Pyramid Construction
Services, contacted Herre Brothers to stmi the construction process. HelTe Brothers submitted
design drawings of the necessary mechmlical and electrical components for the new building, as
NO. 04-5504 CIVIL
well as an estimate of $138,360.00 for the work. After receiving the drawings and the estimate,
Cinemagic refused to work with ReITe Brothers.
R.DJ.A.M. and Rene Brothers ("the plaintiffs") responded by filing the instant action in
October 2004, alleging two breach of contract claims: the first - by R.D.J.A.M. - that
Cinemagic had breached its agreement with R.DJ.A.M. that it employ the services of Herre
Brothers in exchange for a reduction in the cost of the real estate; and the second - by Herre
Brothers - that cinemagic had breached its commitment to use Herre Brothers, an intended third
party beneficiary of the agreement, for its electrical and mechanical needs. Cinemagic filed
preliminary objections seeking to dismiss the entire action because R.DJ.A.M. had agreed to
arbitrate all disputes that arose from the agreement, and because Herre Brothers was not an
intended third party beneficiary to the agreement.
DISCUSSION
We will sustain the first preliminary objection which will have the effect of refeITing this
matter to arbitration. The arbitration will include, of necessity, the question of whether Herre
Brothers was an intended third party beneficiary of the agreement, making Cinemagic' s second
preliminary objection moot.
Under the Pennsylvania Rules of Civil Procedure, a party may file a preliminary
objection to dismiss a claim when there is a prior agreement to settle the claim by alternative
dispute resolution. Pa.R.C.P. 1028(a)(6). Clause 29 of the Sales Agreement between Cinemagic
and R.D.J.A.M. states that the "Buyer and Seller agree to arbitrate any dispute between them...
arising from this Agreement." (Agreement at 4) Because the dispute between the parties-
2
NO. 04-5504 CIVIL
whether Hene Brothers is an intended third party beneficiary - clearly arises out of the
agreement, the claim should be dismissed and the matter resolved by arbitration.
Where it is clear that the dispute arises out of an agreement containing a valid arbitration
provision, Pennsylvania courts "favor the settlement of [the dispute] by arbitration ... to
promote the swift and orderly disposition of claims." Children's Hospital of Philadelphia v.
American Arbitration Association, 331 A.2d 848, 850 (Pa.Super. 1974). The parties' dispute _
whether Cinemagic was required to employ the services of Herre Brothers for its mechanical
and electrical work - clearly arises from the agreement and is therefore governed by the
arbitration provision, Because there is no question as to the validity of the arbitration provision
in this case, the parties' dispute over the status of Hene Brothers as a third party beneficiary
should be submitted to arbitration.
ORDER
AND NOW, this 21- day of March, 2006, the preliminary objection ofthe defendant
in the nature of a request to compel arbitration is GRANTED and this matter is referred to
arbitration.
BY THE COURT,
Thomas J. Weber, Esquire
Carly J. Wismer, Esquire
For the Plaintiffs
/-JJ-
Charles E Haddick, Jr., Esquire
1. David Ziegler, Esquire
F or the Defendant
3
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July 27,2006
Charles E. Haddick, Jr., Esquire
Dickie, McCamey & Chilcote, P.C.
1200 Camp Hill Bypass, Suite 205
Camp Hill, PA 17011
RE: Herre Bros., Inc. v. Cinemagic
Dear C.J.:
It has been approximately five months since I requested that you have
your previously-identified arbitrator contact mine so that a neutral could be
selected. Kindly advise me as soon as possible as to your client's intent regarding
the arbitration of the disputes. If I do not hear back from you within ten days, I
will be forced to file a motion to compel arbitration.
I look forward to your timely response..
Very truly yours,
Dictated but not read.
Thomas 1. Weber
TJW/jlb
cc: Richard A. McBride
IF'
1
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CERTIFICATE OF SERVICE
I hereby certify that I am this date serving a copy of the foregoing document upon the
person(s) and in the manner indicated below, which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail,
Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows:
Charles E. Haddick, Jr., Esquire
1200 Camp Hill Bypass, Suite 205
Camp Hill, P A 17011
GOLDBERG KATZMAN, P.C.
By:
Dated: September 7, 2006
C)
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HERRE BROS., INC and
RDJ.A.M.,L.P.
PlaintitIs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: No. CV-04-5504
CINEMAGIC,
Defendants
: CIVIL ACTION - LAW
AND NOW, this
ORDER
,\~~ day of September, 2006, upon consideration of Plaintiffs'
Motion to Compel Arbitration and Defendant's response if any, it is HEREBY ORDERED that
said motion is GRANTED.
BY THE COURT:
~\'i
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Thomas 1. Weber, Esquire (1.0. No. 58853)
early 1. Wismer, Esquire (1.0. No. 92598)
GOLOBERG,KATZMAN, p,c.
p, 0, Box 1268
Harrisburg, PAl 71 08-1268
(717) 234-4161; (717) 234-4161 (facsimile)
Counsel for Plaintiffs
HERRE BROS., INC and
R.DJ.A.M., L.P.
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No. CV -04-5504
CINEMAGIC,
Defendants
CIVIL ACTION - LAW
PLAINTIFFS' MOTION FOR SANCTIONS
AND NOW come Plaintiffs, Herre Brothers, Inc. and R.D.J.A.M., L.P. (hereinafter Plaintiffs), by
and through their attorneys, Goldberg Katzman, P.C., who state:
1. On or about November 1, 2004, Plaintiffs initiated this breach of contract action against the
Defendant by the filing of a Complaint with the Court
2. The Complaint clearly indicated that the amount in controversy did not exceed the limit for
compulsory arbitration pursuant to the local rules
3. On or about October 6,2005, Defendant Cinemagic (hereinafter Defendant) filed
Preliminary Objections arguing that Plaintiffs' Complaint should be dismissed because it involved an
issue subject to a valid agreement to arbitrate.
4. Argument was heard before the Honorable Judges Hess, Oler and Guido on February 15,
2006.
5. Prior to this Court's ruling on the Preliminary Objections, Plaintiffs requested the
Defendant consent to submit this matter to arbitration by placing the previously identified arbitrators in
contact so that a third neutral arbitrator could be selected. (See correspondence attached hereto as Exhibit
A.)
6. On March 24, 2006, the Honorable Kevin Hess filed an Opinion and Order, referring this
entire matter to arbitration. (See Order and Opinion attached hereto as Exhibit B.)
7. On or about July 27,2006, Plaintiffs once again requested Defendant consent to proceeding
with an arbitration in this matter by having the parties' previously identified arbitrators select a third
neutral arbitrator. (See correspondence attached hereto as Exhibit C.)
8. In addition, Plaintiffs' counsel attempted to contact Defense counsel via telephone to
discuss arbitration in this matter.
9. Defendant failed to respond to Plaintiffs' repeated requests to arbitrate.
10. As a result of Defendant's refusal to cooperate in the scheduling of an arbitration in this
matter, Plaintiffs were required to file a Motion to Compel Arbitration or about September 7, 2006.
II. As a result of Plaintiffs' Motion, the Court entered an Order on or about September 11,
2006 compelling the matter be submitted to arbitration. (See copy of Order attached hereto as Exhibit D.)
12. Plaintiffs immediately provided counsel for Defendant the Court's Order and again
requested that the arbitration be scheduled. (See correspondence attached hereto as Exhibit E.)
13. Over the ensuing three months, counsel for Plaintiffs repeatedly attempted to have
Defendants fulfill their contractual obligation of having this controversy submitted to arbitration as so
ordered by this Court. (See copy of correspondence attached hereto as Exhibit F.)
14. Despite these repeated efforts, Defendant has steadfastly refused to take any steps to
properly schedule this arbitration.
2
15. By correspondence dated November 29,2006, counsel for Plaintiffs again requested
Defendant cooperate in the scheduling of arbitration and warned that a motion for sanctions would be filed
by December 8, 2006 if no meaningful movement was made. (See correspondence attached hereto as
Exhibit G.)
16. Counsel for Defendant requested, as a professional courtesy, that the deadline for the
motion for sanctions be extended to past December 18, 2006 as a result of his trial schedule. (See
correspondence of Defendant's counsel attached hereto as Exhibit H.)
17. Counsel for Plaintiffs granted Defendant's request that no motion would be filed until after
his trial was concluded. (See correspondence attached hereto as Exhibit 1.)
18. Despite the passage of four weeks since the conclusion of Defendant's counsel's trial,
Defendant has made no effort to fulfill the court ordered contractual obligation of submitting this matter to
arbitration.
19. Defendant's conduct throughout this controversy has been to ignore its contractual
obligations, repeatedly disobey court orders and harass the Plaintiffs at every turn, in an effort to cause the
Plaintiffs expense and inconvenience.
20. Had Defendant allowed the matter to proceed to compulsory arbitration as originally filed,
the case would have been resolved more than a year ago.
21. Instead, Defendant filed preliminary objections.
22. While the preliminary objections were pending, Plaintiffs offered to voluntarily submit the
matter to arbitration.
23. Defendant ignored the offer.
24. After the Court ordered (for the first time) that the matter be submitted to arbitration,
Plaintiffs attempted to schedule the same.
3
27. Defendant did nothing.
25. Defendant did nothing.
26. After the Court ordered (for the second time) that the matter be submitted to arbitration,
Plaintiffs attempted to schedule the same.
28. Recently, Defendant's conduct has become so egregious so as to include the harassment of
the children of the Plaintiffs' principal. (See correspondence attached hereto as Exhibit J.)
29. Defendant's continual disobeyance of the Court's Orders of March 24,2006 and September
11, 2006 justifies the imposition of severe sanctions.
30. Furthermore, Defendant's refusal to litigate the controversy in this court, and further refusal
to submit the matter to arbitration, completely frustrates the Plaintiffs' rights to have this controversy
determined.
31. As a result, the only appropriate sanction available is to have judgment entered in favor of
Plaintiffs and against the Defendant in an amount to be determined after a hearing on the damages.
WHEREFORE, Plaintiffs Herre Brothers, Inc. and R.DJ.A.M., L.P., respectfully request that an
order be entered entering judgment in favor of the Plaintiffs and against the Defendant in an amount to be
determined later.
7L: KATZ~AN, P.c.
By: MACW L
Thorn s J. Weber, squire (J.D. #58853)
Carly J. Wismer, Esquire (J.D. #92598)
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorneys for Plaintiffs
Date: January 11, 2007
4
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I 1951-20GO)
Harrv 3. (301dberg
, 1]9f.1-19%)
Ronald M. KatZJ'i')~n
Paul T. Esposito
Neil E. Hendershot
). Jay Cooper
ThCim,....s E, Brenner
A.pril L. Strang-Kutay
Guy H. Brooks
Jerry i. Rus~o
!\1icbael J, C:rr:.cenzi
I-honla..; L \'\'eb~r
St~'!en E. Grubb
Tohn D-:Lorenz.(l
Rove,; L 1'-1orris
Dilvicl M:. Steckel
Joseph }.,,-1. '~;r:1y;.brC:t
He~ithtr L. Fi3terno
C:11"Jy. J. ~.'\ij$rn~'r
1\/Iic1!8el F. Socha
C 'liJN',;n.
Joshua D. Lock
l\rnL;id B. r<'O~3n
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A fun-service law firm.
March 3,2006
Charles E. Haddick, Jr., Esquire
Dickie, McCamey & Chilcote, P .C.
1200 Camp Hill Bypass, Suite 205
Camp Hill, PA 17011
RE: Herre Bros., Inc. v. Cinemagic
Dear C.1.:
I am in receipt of your correspondence of March 1,2006. I did not
previously respond to your voicemail returning my call, wherein you outlined
your proposal. Candidly, my client and I did not think it offered much in terms of
a comproITllse.
My client is prepared to defend the District Justice action. The defense
will include, but is not limited to, the simple fact that my client has not requested
a tap-in, and therefore, cannot be held responsible for the same. The tap-in is
exclusively for the benefit of your client. It is as a result of this fact that all other
purchasers of adjacent property have recognized their own responsibility and paid
the appropriate fee.
In terms of the arbitration, although an order has not yet been received, the
report of the argument indicates that it is almost certain that your Preliminary
Objections will be overruled and the claims of both of my clients submitted to
arbitration. In that we have previously identified our respective arbitrators, I
would suggest that we place them in contact with each other so that a neutral can
be identified and this matter pursued as quickly as possible.
~ EXHIBIT
(!l
~ (\
t9M
....I
;i
320 [",'13.rket Strc:et Strav..rberry Squal":: I P.O. B,JX 126R I HEiITi:+.urg, PA J 7108-1268 I 717-234-.:{.16\ I 717-2?4-r:808 (Fcc)
;"V!:',/~1/..(!Gl{lljc:\7k{7;1-Z?-7?(,7.7j. (011 1.
';...1 "_";
Charles E. Haddick, Jr., Esqurre
March 3, 2006
Page 2
Please confIrm that you still intend to use Jim Nealan as your arbitrator. If
so, I will pass his information along to Mr. Havas so that they can discuss the
neutral.
TJW/jlb
cc: Richard A. McBride
EXhi bit B
~ EXHIBIT
C!l
~ 131
~
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HERRE BROS., INC. and
R.DJ.A.M., L.P.,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
CIVIL ACTION - LA \V
NO. 04-5504 CIVIL
CINE~1AGIC,
Defendant
IN RE: DEFENDANT'S PRELI~1INARY OBJECTIONS
BEFORE HESS, OLER AND GUIDO, J.J.
ORDER
AND NOW, this ,;!.. '1 <- day of March, 2006, the preliminary objection of the defendant
in the nature of a request to compel arbitration is GRANTED and this matter is refened to
arbitration.
BY THE COURT,
Thomas J. Weber, Esquire
Carly 1. Wismer, Esquire
For the Plaintiffs
--4 Ai
7,i. Hess, 1
Charles E Haddick, Jr., Esquire
1. David Ziegler, Esquire
F or the Defendant
:rl111
HERRE BROS., INC. and
R.DJ.A.M., L.P.,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION -LAW
NO. 04-5504 CIVIL
CINEMAGIC,
Defendant
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HESS, OLER AND GUIDO. .T..T.
OPINION AND ORDER
Before the court are preliminary objections filed by the defendant, Cinemagic. The
complaint in the case avers the following facts.
In April 2004, defendant, Cinemagic, entered into a sales agreement with R.D.l.A.M.,
whereby R.D J .A.M. agreed to sell to Cinemagic real estate which Cinemagic intended to use for
a new office building. As part of the agreement, Cinelnagic would employ the services of
R.DJ.A.M.'s sister company, Herre Brothers, an electricaVmechanical contractor, in the
construction process. This requirement, which had been inserted by hand into the agreement
stated that "It is [Cinemagic's) intent to contract with Pyramid Construction Services to Build
new Facility [sic], who in turn will utilize Herre Bros. Inc. for mechanical/Electric Trades for a
reasonable cost." (Agreement at 2) As consideration for the requirenlent, R.DJ.A.M. agreed to
a reduction in the sale price of the property.
Once the sale was cOlnpleted, Cinemagic' s designated contractor, Pyramid Constructi.on
Services, contacted Herre Brothers to start the construction process. Herre Brothers submitted
design drawings of the necessary mechanical and electrical cOlnponents for the new building, as
2
NO. 04-5504 CIVIL
well as an estinlate of $138,360.00 for the work. After receiving the drawings and the estimate,
Cinenlagic refused to work with HelTe Brothers.
R.DJ.A.M. and HelTe Brothers ("the plaintiffs") responded by filing the instant action in
October 2004, alleging two breach of contract clainlS: the first - by R.DJ.A.M. - that
Cinenlagic had breached its agreement with R.DJ.A.M. that it employ the services of Herre
Brothers in exchange for a reduction in the cost of the real estate; and the second - by Herre
Brothers - that cinemagic had breached its commitnlent to use Herre Brothers, an intended third
party beneficiary of the agreement, for its electrical and mechanical needs. Cinenlagic filed
preli111inary objections seeking to dismiss the entire action because R.DJ .A.M. had agreed to
arbitrate all disputes that arose from the agreement, and because RelTe Brothers was not an
intended third party beneficiary to the agreement.
DISCUSSION
We will sustain the first preliminary objection which will have the effect of referring this
matter to arbitration. The arbitration will include, of necessity, the question of whether Herre
Brothers was an intended third pmiy beneficiary of the agreement, malcing Cinemagic' s second
preliminary objection moot.
Under the Pennsylvania Rules of Civil Procedure, a party may file a prelilllinm'y
objection to dismiss a claim when there is a prior agreement to settle the claim by alternative
dispute resolution. Pa.R.C.P. 1028(a)(6). Clause 29 of the Sales Agreement between Cinelnagic
and R.DJ.A.M. states that the "Buyer and Seller agree to arbitrate any dispute between theln '"
arising from this Agreement." (Agreement at 4) Because the dispute between the pmiies-
Thomas 1. Weber, Esquire
Carly J. Wismer, Esquire
For the Plaintiffs
~,. /14-
K1 A. Hess, J.
NO. 04-5504 CIVIL
whether Herre Brothers is an intended third party beneficiary - clearly arises out of the
agreement, the claim should be dismissed and the matter resolved by arbitration.
Where it is clear that the dispute arises out of an agreement containing a valid arbitration
provision, Pennsylvania courts "favor the settlement of [the dispute] by arbitration ... to
promote the swift and orderly disposition of claims." Children's Hospital of Philadelphia v.
American Arbitration Association, 331 A.2d 848, 850 (Pa.Super. 1974). The parties' dispute -
whether Cinemagic was required to employ the services of Rene Brothers for its mechanical
and electrical work - clearly arises from the agreement and is therefore governed by the
arbitration provision. Because there is no question as to the validity of the arbitration provision
in this case, the pcuties' dispute over the status of Herre Brothers as a third pcuiy beneficiary
should be submitted to arbitration.
ORDER
AND NOW, this 21 ~ day of Mcu-ch, 2006, the preliminary objection of the defendant
in the nature of a request to compel arbitration is GRANTED culd this 111atter is refened to
cu-bitration.
BY THE COURT,
Charles E Haddick, Jr., Esquire
J. David Ziegler, Esquire
For the Defendant
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July 27,2006
Charles E. Haddick, Jr., Esquire
Dickie, McCamey & Chilcote, P .C.
1200 Camp Hill Bypass, Suite 205
Camp Hill, PA 17011
RE: Herre Bros., Inc. v. Cinemagic
Dear C.J.:
It has been approximately five months since I requested that you have
your previously-identified arbitrator contact mine so that a neutral could be
selected. Kindly advise me as soon as possible as to your clienfs intent regarding
the arbitration of the disputes. If I do not bear back from you within ten days, I
will be forced to file a motion to compel arbitration.
I look forward to your timely response..
Very truly yours,
Dictated but not read.
Thomas J. Weber
TJW/jlb
cc: Richard A. McBride
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HERRE BROS.~ INC and
R.D .J.A.M.~L.P.
Plaintiffs
: m THE COURT OF CO:M.1vfON PLEAS
ClTMBERLAND COUNTY~ PENNSYLVANIA
v.
: No. CV-04-5504
CINEMAGIC,
Defendants
CIVIL ACTION - LAW
ORDER
AND NOW, this Jlth day of September, 2006~ upon consideration of Plaintiffs'
Motion to Compel Arbitration and Defendant's response if any, it is HEREBY ORDERED that
said motion is GRANTED.
BY THE COURT:
151~. 2k1,A.
J.
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320 IVJarh::t Stu;et, SL'2~/;fl:)errySqu:::lle I P,O. Box] 2681
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GoldberQ:
I(atzrn:111
A full-service law firm.
Arthur L. Goidberg
(1951-~tJC)()!
September 14, 2006
Harry B. Goldberg
( 1961-1998 ]
Ronald lvl. K2tZl11Jll VIA FACSIMILE
Paull. Esposito
Neil E. Hendershot Charles E. Haddick, Jr., Esquire
r. Jav Cooper Dickie, McCamey & Chilcote, P.C.
Th0111<:15 E. Brenner 1200 Camp Hill Bypass, Suite 205
April L. Strang-Kut3Y Camp Hill, P A 17011
Guy H. Brooks
Jenv J, Russo
!,-,-[idnel T. Crcjci.:nzi
RE: Herre Bros., Inc. and R.D.J.A.M., L.P. v. Cinemagic
TI-1ornas 1. "'v^leb,.:,c
Dear C.J.:
Ste\tr:n E. (~{L.:bt)
L.. IAcrris
Enclosed is a copy of the Court's Order compelling your client to submit
to arbitration. Kindly contact me at once so that we can begin this process.
j()hn 1)f.'LG1"el~Z(_\
l),~vid [\'I. Steckel
In the event you are no longer representing Cinemagic, I would appreciate
the courtesy of being informed of the same.
Joseph. J\."1. .se:rnbr~_;t
l--l':=:;.1tl-:er L. P?terl~C)
C~{'lrlv T. \t.,ri3111ef
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J'-./IicllJfl F. Sc)(:ha
;OSl-1U;;1 D. Lock
/~,,-rnoJd D.
TJW/jlb
Encl.
cc: Richard A. McBride
-~Vl,V1V..gC 7:.iLJergkntznrn1l. C() III
RE
Charles E. Haddick, Esquire
September 14, 2006
Herre Bros., Inc. and R.DJ.A.M., L.P. v. Cinemagic
FAX # (717) 731-4803
FACSIMILE TRANSMISSION
-~
1
Goldberg Katzman, P.C.
320 Market Street, P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Fax: (717) 234-6808
www.goldbergkatzman.com
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Sender
Thomas J. Weber, Esquire
E-mail: tiwrcvgoldberakatzman.com
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A full-service law firm.
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TO
DATE
There will be ~ page(s) following (including) this cover sheet.
A copy of this fax will not follow by regular mail.
This trdnsmission is intended for the use of the individual or entity to which it is addressed. 11 may contain information that is confidential or privileged under law. [fthe reader of this message is
not the intended recipient (or employee or agent responsible for delivering the message to the intended recipient), any dissemination, distribution, or copying is strictly forbidden. I f this
transmission has been received in error, please call us immediately and return the original by United States Postal Service to the above referenced address,
MESSAGE:
Please see attached.
139248.1
08/14/2008 11:53 FAX 717 234 8808
GOLDBERG KATZMAN
~ 001
*********************
*** TX REPORT ***
*********************
TRANSMISSION OK
TX/RX NO
RECIPIENT ADDRESS
DESTINA nON 10
ST. TIME
TIME USE
PAGES SENT
RESULT
3425
7314803
08/1411:52
00'28
3
OK
FACSIMILE TRANSMISSION
,. ... --, Goldberg Katzman, P .C.
'. 320 Market Street, P.O. Box 1268
~ Harrisburg, PA 17108-1268
iii ... " Telephone: (717) 234-4161
I a I Fax: (717) 234-6808
"'1 ' l'J .' www.goldbergkatzman.com
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K \... Sender
(J tz nl a t1 Thomas J. Weber, Esquire
A Full-sc:rvicl: law firm. E-mail: tiw((DQoldberakatzman.com
TO
Charles E. Haddick, Esquire
FAX # (717) 731-4803
DATE September 14, 2006
RE Herre Bros., Inc. and R.D.l.A.M., L.P. v. Cinemagic
There win be ...L. page(s) following (including) this cover sheet.
A copy of this fax will not follOw by regular ma.il.
nlilltlllll'l;a.ioa is nnc;lded lDr lhe w:e of the individllAl aT emit)' ta wbit;h il is adcb=tlC!. IIl1GlY oonlllin Ulr01'lmliollllllllIB eonflClmloll or privileSed .wier law lflhe =dcr aClhiJ mOUlle i&
IIOlw intended recipient (ar ~ ur ;q:llIt rup()1IIliIh; Ib( dcIJ~ 1M mdi'''a~ 10 the )111~ recipienl), RlIY di=minalion, disln'bulion, or c;op)'ins iJ llri~ ly 1bt'\l1"4"n I rr~~
11'81\t11llt1loA Il;d IIcclI r;c~ivc-G ill mor, p~ call us; lIIlItIedwely IIDd return the original by United Slala: Ptr.illll ScMce 10 'lie 8bov~ ~d add=~
MESSAGE:
Please see attached.
139248.1
Exhibit F
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Arthur L. Goldberg
0951-2000)
Hany B. Goldberg
(1961- 1998)
Ronald lvI, Katzman
Paul J. Esposito
Neil E. Hendershot
J Jay Cooper
Thomas E. Brenner
April L. Strang- Kutay
Guy H. Brooks
Jerry J. Russo
IV1ichael J. Crocenzi
Thomas J Weber
Steven E. Grubb
John DeLcrenzo
Royce L. Morris
David M. Steckel
Joseph M, Sembrot
Carly J. Wismer
l'Aichael F. Socha
COUNSEL
Joshua D. Lock
Arnold B. Kogan
Heather L. Paterno
III
Goldberg
Katzman
A full~service law firm.
September 22, 2006
Charles E. Haddick, Jr., Esquire
Dickie, McCamey & Chilcote, P.C.
1200 Camp Hill Bypass, Suite 205
Camp Hill, PA 17011
RE: Herre Bros., Inc. and R.D.J.A.M., L.P. v. Cinemagic
Dear C.J.:
To answer the question posed in your correspondence of September 21,
2006, we have each selected our individual arbitrators. Mine is John Havas.
However, due to your client's unresponsiveness, I have not been in contact with
Mr. Havas regarding this matter for some time. If memory serves me correctly,
you had initially identified Jim Nealon as your arbitrator.
Upon your receipt of your client's intentions regarding this matter, I would
suggest that our arbitrators contact each other to move this matter along.
Very truly yours,
-rhcrvn~"]. W~/~
Thomas J. Weber
TJW/sjb
Dictated But Not Read
cc: John Havas, Esquire
Richard A. McBride
32(: r..;Jark.?t Strt~:(::t: Str~rv\.'bf'rry Square- I P. (). Bo::.:. 1268 I .t-L}rrl~burg. Ff'... 171 OL~- L 260 I 717-2.34-41 (-) 1 I 71 -: -23!~ -0;80-3 (f::i;.~) I ;+,~.t.:Iv".go}/"lbt='J.f1}.-atzlJJar:.(Gn]
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(1951-2000)
Harry B, Goldberg
(1961-1998)
Ronald M, Katzm.an
Paul J Esposito
Neil E. Hendershot
]. Jay Cooper
Thomas E, Brenner
April L. Strang-Kutay
Guy H Brooks
Jerry J. Russo
[v'lichael J. Crocenzi
Thomas J. Vleber
Steven E. Grubb
John DeLorenzo
Royce L. Morris
David M, Steckel
JosephivLSembrot
Carly j. Wismer
h-1ichael F. Socha
COUNSEL
Joshua D. Lock
.l\rnold B. Kogan
Heather L. Paterno
n
Goldberg
Katzman
A full-service law firm.
November 1,2006
Charles E. Haddick, JI., Esquire
Dickie, McCamey & Chilcote, P.C.
1200 Camp Hill Bypass, Suite 205
Camp Hill, PA 17011
RE: Herre Bros., Inc. and R.D.J.A.M., L.P.
Dear C.J.:
Enclosed is the Addendum that was inadvertently omitted from my
previous correspondence.
I am in the process of accumulating the information to support my clients'
damage in this matter. Although I hope to be able to amicably resolve this
situation, it appears that every action taken by your client has merely had the
purpose of postponing it further. Therefore, while I am accumulating the
information, I would suggest that our arbitrators contact each other for the
purpose of selecting a neutral.
Once I obtain the backup information, I will forward the same to your
attention.
~ly you~s, L
/" ~ttM~lALt
T~~I:J. ~ber
TJW/jlb
Encl.
cc: Richard A. McBride
320 l\ifarket Street, Stra'"vberry SqC:0XI~ I FO Bex 1230 I I-l<llTiSb':I'g, ~'P.! 71 :;':3-l2f:.i3 I 717 -234-4 i:,) 1 I 71/- 234-G.SOfJ (fa::.:) I \"l1""'.g.r,;Td:>1;gkalznlEin ren
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Exni bii- G-
-
P.rthur L. Goldberg
(1951- 2000)
Harry B. Goldberg
(] 961-1998)
Ronald 1\11. Katzman
Paul]. Esposito
Neil E. Hendershot
]. Jay Cooper
Thomas E. Brenner
April L. StIili"lg-Kutay
Guy H. Brooks
Jerry J. Russo
lvIichael ]. Crocenzi
Thomas]. Weber
Steven E. Grubb
John DeLorenzo
Royce L 1\iIorris
David M. Steckel
Joseph M. Sembrot
Carly]. Wismer
h:lichael F. Socha
COUNSEL
Joshua D. Lock
Arnold B, Kogan
Heather L. Paterno
III
II
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A full-service law firm.
November 29,2006
Charles E. Haddick, Jr., Esquire
Dickie, McCamey & Chilcote, P.C.
1200 Camp Hill Bypass, Suite 205
Camp Hill, P A 17011
RE: Herre Bros., Inc. v. Cinemagic
Dear C.J.:
By the time you receive this letter, it will have been approximately three
weeks since I provided you with the supporting documentation substantiating my
client's claims for damages. Furthermore, it will be more than 2 ~ months since
the court issued an Order compelling this matter to be submitted to arbitration.
In the event I do not receive proper evidence of meaningful movement
towards submitting this matter to the arbitrators, or a reasonable response to my
client's demand by December 8, 2006, I will file a motion for sanctions with the
court regarding your client's refusal to comply with the September 11, 2006
Order.
I hope you are successful in convincing your client that they carmot
continue to just ignore this matter.
/f;~~1~
Thomas J. Weber
TJW/jlb
cc: Richard A. McBride
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Charles E. Haddick, Jr.
Attorney-at-Law
Admitted in PA
Direct Dial: 717.731-4600 Ex, 3008
Direct Fax: 717-731-4803
chaddick@dmclaw.com
December 11 2006
Via Facsimile: (717) 234-6808
Thomas Weber, Esquire
Goldberg Katzman) P. C.
320 Market Street
Strawberry Square
P.O. Box 1268
Harrisburg, Pa 17108
. . . ~ : i
RE: He:rre Bros., Inc. v.. Cinemagic
Our File No; B-172
Tom:
Thank you for your letter of Novelllber 29 in the above matter. I have passed it to my
client. I had previously written her and supplied your earlier letters under cover of October 18,
and October 31.
I am begirming a two week brain injury trial in Monroe County beginning the week
Monday, December 4, and I would be most grateful if you could forebear On any motion for
sanctions for a brief time, and re-diary your file SO that we can speak sometime after December
18. If you would like a copy of the trial attachrhent order, I would be happy to provide it. If
you would like1 please also have your secretary contact my legal assistant, Kimberly Over, at
extension 3002, and they can set up a call for a specific date and time.
In the meantime, I will, as proll1iseq,. send your most recent note to my client and impress
upon her your interest in proceedi~g. .Thanl.c .you in advance.for your anticipated courtesy and
cooperation, . ,
,'.
CEH, Jr./kao
DICKIE, M(CAMEY & CHILCOlE, P,C, I ATTORNEYS AT lAW
MAlN: 7l7.731-4800 f4"t 717.131-4803
1200 CAMP HIU 8ypm ~I1lTE205 I (A UP UUI D' 17011.3700 I WWW.DMC!AW.COM
l 'd 8lLS 'ON
Plftsburgb I HarrkL!rrg I Philadefphlo I Wa~hinlllDn, D.L
to 8 ~ lULl L ^ 3 VN ~p W 3 I ~ J I 0 Hew JBI"5W d 9 0 : t illc9 0 0 G 'l . J ~ 0
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i\fthur L Goldberg
(1951-2000)
Harry B, Goldberg
(1961-1998)
Ronald M. Katzman
Paul J Esposito
Neil E. Hendershot
]. Jay Cooper
Thomas E. Brenner
April L. Strang-Kutay
Guy H, Brooks
Jerry]. Russo
Michael]. Crocenzi
Thomas]. Weber
Steven E. Grubb
John DeLorenzo
Royce L. Morris
David M, Steckel
Josephlvi.SelTlbrot
Carly]. Wismer
Iviichael F Socha
COUNSEL
Joshua D. Lock
Arnold B, Kogan
Heather L. Paterno
..
1i~1
Goldberg
Katzrnarl
A full-service law firm.
December 5, 2006
Charles E. Haddick, Jr., Esquire
Dickie, McCamey & Chilcote, P .C.
1200 Camp Hill Bypass, Suite 205
Camp Hill, PA 17011
RE: Herre Bros., Inc. v. Cinemagic
Dear C.J.:
Obviously, I will extend you the professional courtesy of refraining from
filing a motion for sanctions until your trial in Monroe County is concluded.
However, please impress upon your client the need to take some action in this
matter.
I look forward to hearing from you the week of December 18 as to YO.ur
client's position.
Very tml yo s,
t . /
~ . f'
Let.
TJW /jlb
L.
cc: Richard A. McBride
'2;20 l\/Iz;l..~<:?t 2Jtl'ft:L .::.tr2.\?.,lberr.-.y Sq!l;:~re I r'. CJ. Box 1258 I [-{::trri5b~ lrgl FP.. 17"i 0.8-]. 26B I 7i7 _. 2'~4-L: I () 1 I '7 j. 7 -2-3~1--~38C8 (f(:x) 11:1'"v~v.!/oJ(jber5~}:3rZn)ar!. conl
H /\ R R 1 <; El U Rei L 1\ [.J C\ S -! E r, I C r\ " 1. i S L E
Exhibii J
J
Arthur L. Goldberg
(1951-2000)
Harry B. Goldberg
(1961-1998)
Ronald 1'11, Katzman
Paul J. Esposito
Neil E. Hendershot
J. Jay Cooper
Thomas E. Brenner
April L. Strang-Kutay
Guy H. Brooks
jerry J. Russo
Michael]. Crocenzi
Thomas]. Weber
Steven E. Grubb
John DeLorenzo
Royce L. M:orris
David lvI, Steckel
Joseph 1v1. Sembrot
Carly J Wismer
l'v'Iichael F. Socha
COUNSEL
Joshua D. Lock
Arnold B. Kogan
HeaL"'er L. Paterno
320 l'\ilaTk?t :.:tl'eet:
.
illi~,
Goldberg
T~
Katzmarl
A full-service law firm.
October 25, 2006
Charles E. Haddick, Jr., Esquire
Dickie, McCamey & Chilcote, P .C.
1200 Camp Hill Bypass, Suite 205
Camp Hill, P A 17011
RE: Herre Bros., Inc. and R.D.J.A.M., L.P.
Dear C.J.:
It is my understanding that last evening, Mary Louise Hanley, principal of
your client, initiated an altercation with Ashley McBride, daughter of Richard
McBride. The incident involved Ashley and her friend's proper use of an
easement to gain access to the McBride property located behind your clients.
Further, it is my understanding that when addressing Mr. McBride's daughter,
your client made use of profanity to make her point.
Pursuant to an Addendum to the Sales Agreement governing the transfer
of property, right to enjoinment of the easement was retained by the McBrides, as
well as others. A copy of the Addendum is enclosed for your convenience. I
point your attention to paragraph 3 of the same.
Please contact your client and remind her of her contractual obligations.
Although I recognize the relationship between the parties is obviously strained,
there is absolutely no reason or justification for Ms. Hanley berating Ashley
McBride.
Should you have any questions, please do not hesitate to contact me.
~y yours,
~~~~~ LUJ-
TJW /jlb
cc: Richard A. McBride
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Sqt..:2Lr:.1 PJ~!. B:y..: 1268 t l-IarTi~~~)ul'g. Pi:.. 17108-12fj31717-:23~-::1}6lI7l7-Z3-1-bgO,': (r~i...}':') 1"V;'VjA...gc1cjJ)ei~,~katz;1]3;:.(;c.n?
CERTIFICATE OF SERVICE
I hereby certify that I am this date serving a copy of the foregoing document upon the
person(s) and in the manner indicated below, which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail,
Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows:
Charles E. Haddick, Jf., Esquire
1200 Camp Hill Bypass, Suite 205
Camp Hill, P A 17011
GOLDBERG KATZMAN, P.C.
Dated: January 11, 2007
143153.1
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JAM 1 7 2007(1y
Thomas 1. Weber, Esquire (I,D, No. 58853)
Carly 1. Wismer, Esquire (I.D, No, 92598)
GOLDBERG,KA TZMAN, P .C.
p, O. Box 1268
Harrisburg, P A 17108-1268
(717) 234-4161; (717) 234-4161 (facsimile)
Counsel for Plaintiffs
HERRE BROS., INC and
R.DJ.A.M., L.P.
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No. CV -04-5504
CINEMAGIC,
Defendants
CNIL ACTION - LAW
AND NOW, this
RULE TO SHOW CAUSE
<,d ~
1~ day of J ~"'~~"''f
, 2007, based upon Plaintiffs'
Motion for Sanctions, a Rule is issued upon Defendant to show cause why the requested relief
should not be granted.
Rule returnable in 2.. 0 days from service.
(
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J.
143186.1
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Atrv'iOi\lG: LLCdd 3Hl :fa
30/:!:!O-O::Jl!:l
Thomas J. Weber, Esquire (I.D. No. 58853)
Carly J. Wismer, Esquire (I.D. No, 92598)
GOLDBERG,KATZMAN, P.C.
p, O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161; (717) 234-4161 (facsimile)
Counsel for PlaintijJs
HERRE BROS., INC and
R.D.J.A.M., L.P.
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
v.
: No. CV-04-5504
CINEMAGIC,
Defendants
: CIVIL ACTION - LAW
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Please mark this action settled, dismissed and discontinued with prejudice.
Respectfully submitted,
T om s . We be ., Esquire (J.D. # 58853)
320 Market Street, P.O. Box 1268
Harrisburg, P A 17108-1268
(717) 234-4161
Attorney for Defendants
Date: March 29, 2007
145728.1
~
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
Harrisburg, Pennsylvania, first-class postage prepaid, on the 29th day of March, 2007, addressed
to the following:
Charles E. Haddick, Jr., Esquire
1200 Camp Hill Bypass, Suite 205
Camp Hill, PA 17011
GOLDBERG KATZMAN, P.C.
By:
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