HomeMy WebLinkAbout14-0864 A
Supreme Cou>1t of , Pennsylvania
,
COUrt:o�f- CO For Prothonotary Use Only:
. ..�?Y' Iqt:+ JAI,
CNII Shoet Docket No:
le` land
Cuffil County
z4
The information collected on this form is used solely for court adminislralion purposes. T. his form does not
supplement or replace the filing and service of pleadings or other papers as required by law or rules of court.
Commencement of Action:
S x Complaint 0 Writ of Summons J Petition
Transfer from Another Jurisdiction 0 Declaration of Taking
E
C Lead Plaintiffs Name: Lead Defendant's Name:
T SUSAN W. BARNES DUFFIELD ASSOCIATES, INC
Dollar Amount Requested: 1- within arbitration limits
I Are money damages requested? El Yes 0 No X
(check one) Ooutside arbitration limits
0
N Is this a Class Action Suit? Yes El No Is this an MDJAppeal? El Yes CE No
A Name of Plaintiff /Appellant's Attorney: Alan C. Green, Esq
0 Check here if you have no attorney (are a Self- Represented (Pro Se] Litigant)
Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your
PRIMARY CASE. If you are making more than one type of claim, check the one that
you consider most important.
TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS
0 Intentional 0 Buyer Plaintiff Administrative Agencies
0 Malicious Prosecution 0 Debt Collection: Credit Card J Board of Assessment
0 Motor Vehicle Debt Collection: Other Board of Elections
0 Nuisance] Dept. of Transportation
C1 Premises Liability 0 Statutory Appeal: Other
S 0 Product Liability (does not include
. F-1 Employment Dispute:
E mass tort)
Slander/Libel /Defamation Discrimination
C 0 Other: 0 Employment Dispute: Other 0 Zoning Board
T 3 Other:
I 0 Other:
O MASS TORT
Asbestos
N 0 Tobacco
0 Toxic Tort - DES
Toxic Tort -Implant REAL PROPERTY MISCELLANEOUS
1 Toxic Waste
0 Other: 0 Ejectment 0 Common Law /Statutory Arbitration
B 0 Eminent Domain /Condemnation 0 Declaratory Judgment
0 Ground Rent 0 Mandamus
ES Landlord /Tenant Dispute Non - Domestic Relations
0 -Mortgage Foreclosure: Residential Restraining Order
PROFESSIONAL LIABLITY Mortgage Foreclosure: Commercial Quo Warranto
0 Dental 0 Partition Replevin
0 Legal 0 Quiet Title 0 Other:
0 Medical 3 Other:
0 Other Professional: lease
Updated 1/1/2011
TIJE-
FEB 1
CUMCFRLA,jC C'01INTY
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY PENNSYLVANIA
SUSAN W. BARNES,
i
Plaintiff, No. "! / olul
O C
versus
i
i
DUFFIELD ASSOCIATES, INC., i
Defendants. CIVIL ACTION - LAW
i
i
NOTICE TO DEFEND
YOU HAVE BEEN SUED BY THE COURT. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this Complaint and
Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so the case may proceed without you and a judgment may be entered
against you by the Court without further notice for any money claimed in the Complaint or for
any other claim or relief requested by the Plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS
OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION Tj
32 SOUTH BEDFORD STREET
a �A � -r yd9
c c
{00791319/1) C k , ` C ✓ J �J
1 (0to
CARLISLE, PA 17013
1- 800 - 990 -9108
717 - 249 -3166
{00791319/1] Z
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY PENNSYLVANIA
SUSAN W. BARNES,
Plaintiff,
i No.
versus i
i
DUFFIELD ASSOCIATES, INC.,
i
Defendants. i CIVIL ACTION - LAW
i
i
COMPLAINT
AND NOW this day of February, 2014 comes Plaintiff Susan W. Barnes, by and
through her attorneys, CGA Law Firm by Alan C. Green, Esquire to file the herein Complaint
and, in support thereof, submits the following:
1. Plaintiff Susan W. Barnes is an adult individual residing at 14 East Harmon Drive,
Carlisle, Pennsylvania, 17015.
2. Defendant Duffield Associates, Inc. ( "Duffield ") is a business corporation organized
under the laws of the State of Delaware having its principal place of business at 5400 Limestone
Road, Wilmington, Delaware, 19808.
3. Barnes is the owner of commercial real property, on which was erected and
improved a 15,150 square foot office building, located at 801 Belvedere Street, Carlisle,
Pennsylvania, 17013 (the "Premises ").
4. On August 31, 2007, Barnes and Duffield entered into a written Lease Agreement
whereby Mrs. Barnes leased the Premises to Duffield as a location from which Duffield could
conduct its local business operations. A true and accurate copy of the Lease Agreement is attached
hereto as Exhibit "A ".
(00787926/i}
5. Pursuant to Section 2 of Lease Agreement, the duration of the lease was a term of
five (5) years beginning on September 1, 2007 and terminating on August 31, 2012. See Lease
Agreement (Ex. A), at § 2.
6. Pursuant to Section 3.A of the Lease Agreement, rent due by Duffield calculated
annually and increased by 3% each year of the term of the lease, beginning with $124,230.00 total
annual rent in Year One (9/1/2007 to 8/31/2008) and ending with $139,821.96 annual rent due in
Year Five (9/1/2011 to 8/31/2012). See Lease Agreement (Ex. A), at § 3.A.
7. Pursuant to Section 3.B of the Lease Agreement, rent payments were to be paid in
equal monthly installments, due, in advance, on the last day of each month. See Lease Agreement
(Ex. A), at § 3.B.
8. Further, the terms of the Lease Agreement provided for a "triple net lease ": Duffield
assumed responsibility for payment of all real estate taxes, utilities and maintenance - expenses on the
Property during the term of its tenancy. See Lease Agreement (Ex. A), at §§ 3.C, 7 -8.
9. Although the stated term of the lease expired on August 31, 2012, Duffield remained
in possession of the Premises and continued to pay rent to Barnes, through January 31, 2014.
10. Barnes manifested her intent to treat Duffield as a holdover tenant by continuing to
collect rent and declining to reenter the Premises or oust Duffield.
11. Pursuant to Section 31 of the Lease Agreement, Duffield was granted an option to
renew the Lease Agreement for an additional term of five (5) years after expiration of the initial
term. See Lease Agreement (Ex. A), at § 31.
12. Thus, by operation of law, Duffield's holding over after the lease term expired
extended the term of the lease for a successive term of five years on the same covenants and
conditions as those contained in the Lease Agreement.
loo78792.6 /tj 2
13. Beginning in September of 2009 (Lease Year 3), Duffield began experiencing
economic hardship and requested of Barnes temporary rent relief in the form of deferred payments.
14. Since the beginning of Year 3 Barnes gratuitously agreed to five separate rent
deferral plans as follows:
a. On September 4, 2009, Barnes agreed to defer 50% of the monthly
rent and defer the Year 3 annual rent escalation for the months of October,
November and December of 2009, with the deferred rent in the amount of
$15,996.00 due, interest free, on June 30, 2010.
b. On June 30, 2010, Duffield still asserting financial hardship, Barnes
again agreed to extend the payment deadline for the deferred rent and defer the
annual rent escalation for an additional six - months, with the deferred rent, now
totaling $21,114.24, due, interest free, on December 31, 2010.
C. On November 18, 2010, Duffield again asserting financial hardship,
Barnes once more agreed to (1) extend the payment deadline for the deferred rent for
an additional six months, (2) defer the annual rent escalation for Years 3 and 4 for an
additional three months, and (3) defer $2,100 of the monthly rent for the next six
months with all deferred rent, now totaling $36,980.34, due, interest free, on June
30, 2011.
d. On April 14, 2011, Duffield once more asserting financial hardship,
Barnes yet again agreed to (1) extend the payment deadline for the deferred rent for
an additional six months, (2) defer the annual rent escalation for Years 3 and 4 for an
additional three months, and (3) defer $2,100 of the monthly rent for the next three
months with all deferred rent, now totaling $45,228.48, due, interest free, on
December 31, 2011.
100787926/1)
3
e. Finally, on October 19, 2011, Duffield quite predictably asserting
financial hardship, Barnes one last time agreed to (1) extend the payment deadline
for the deferred rent for an additional year, (2) defer the annual rent escalation for
Years 3, 4 and 5 for the remainder of the five year term of lease, and (3) defer
$2,749.38 of the monthly rent for the remainder of the five year term of lease with
all deferred rent, now totaling $56,904.74, due, interest free, on January 15, 2013.
f. Pursuant to the October 19, 2011 rent deferral agreement, if the
deferred rent was not paid in full by January 15, 2013, interest would accrue on the
balance at an annual rate of 3.5% for the deferrals through the end of calendar year
2010 and at an annual rate of 3% for deferrals in the calendar years 2011 and 2012.
True and accurate copies of correspondences memorializing the terms of the rent deferral plans are
attached hereto as Exhibit `B ".
15. By the end of the five year term of lease on October 31, 2012, Barnes continued to
permit Duffield to defer $2,749.38 of the monthly rent due each month and to refrain from
demanding payment in the past due amounts for an indefinite period of time as negotiations over
restructuring of Duffield's debts ensued.
16. Matters finally reached a head in the autumn of 2013, when Duffield unilaterally
decided to reformulate the terms of the lease agreement to (1) reduce the amount of office space
leased by approximately half, (2) reduce their already partially deferred monthly rent by half, and
(3) asserting in no uncertain terms that payment of past due deferred would not be forthcoming in
the foreseeable future. True and accurate copies of email correspondences between Duffield Vice
President R. David Charles and Mrs. Barnes' husband S. Jeffrey Barnes evidencing these averments
are attached hereto as Exhibit "C ".
(007879x6/1) 4
17. On or around December 20, 2013, Duffield notified Barnes that it was unilaterally
terminating its lease as of January 30, 2014. A true and accurate copy of the Notice of Termination
is attached hereto as Exhibit "D ".
18. Calculated on the basis of a 3% annual escalation for the original five year'term of
lease with no escalation thereafter, as of January 31, 2014, the total amount of the back rent due and
owing by Duffield equals $156,617.31; the total amount of rent due for the remainder of term of
lease Year 7 would equal $81,562.81; the total amount of rent due for the remainder on the renewed
5 year term of lease would equal $501,028.69; the sum total amount of Duffield's outstanding
obligations equals $657,646.00. A detailed accounting of these amounts is attached hereto as
Exhibit "E ".
COUNT I — BREACH OF CONTRACT
19. Plaintiff incorporates each of the preceding paragraphs by reference as though set
forth at length herein.
20. The Lease Agreement is a valid and enforceable contract between the parties.
21. Duffield's aforementioned conduct constitutes a material breach of the Lease
Agreement.
22. Barnes has, at times relevant hereto, performed all of her materials obligations under
the terms of the Lease Agreement.
23. As a result of Duffield's breach, Barnes has suffered damages in the form of (1)
unpaid back rent as described above, (2) expectation damages as a result of Duffield's unilateral
termination of the Lease Agreement, and (3) consequential and incidental damages as a result of
Duffield's unilateral termination of the Lease Agreement.
(00789926 /1)
5
24. Additionally, pursuant to Section 19 of the Lease Agreement, Barnes is entitled to
collect reasonable attorneys' fees incurred in an action for Duffield's breach of the Lease .
Agreement. See Lease Agreement (Ex. A), at § 19.
25. The relief sought on account of back rent due and owing are liquidated damages in
the amount of $156,617.31 together with interest, costs, attorneys fees and other charges collectible
under the terms of the Lease Agreement.
26. Mrs. Barnes is, as of the filing of this Complaint, making good faith efforts to find
replacement tenants, in the pursuit of which she continues to incur incidental and consequential
expenses as a result of Duffield's termination in breach of the Lease Agreement, however, if such
tenants are secured, the rent collected therefrom will offset the damages accruing from loss of rental
profits.
27. Therefore, the relief sought on account of Duffield's termination in breach of the
Lease Agreement is unliquidated damages, including consequential and incidental damages, in an
amount to be determined at trial, together with interest, costs, attorneys' fees and other charges
collectible under the terms of the Lease Agreement.
WHEREFORE, Plaintiff requests this Honorable Court enter judgment in favor of Plaintiff
and against Defendant for:
1. Damages resulting from unpaid back rent due and owing to Plaintiff in the amount
of $156,617.31; and
2. Damages resulting from Defendant's unilateral termination of the Lease Agreement,
including prospective rent, incidental and consequential damages, in an amount to be proved at trial
in excess of the statutory arbitration limit; together with
3. All interest, costs, attorneys fees and other charges collectible under the terms of the
Lease Agreement.
(007879z / 6
COUNT II — UNJUST ENRICHMENT
(Alternative to Count I)
28. Plaintiff incorporates each of the preceding paragraphs by reference as though set
forth at length herein.
29. By virtue of Duffield's occupancy, and conducting of business from, the Premises,
Barnes has conferred a substantial benefit upon Duffield.
30. Duffield knew that the Premises were owned by Barnes and consented, through their
occupation thereof, to receive the benefit conferred by Barnes.
31. The fair and reasonable value of the benefit conferred, less rent previously paid,
equals $156,617.31, or the amount of back rent due and owing from Duffield to Barnes.
32. It would be unjust and inequitable for Duffield to retain the benefits provided by
Barnes without paying full, fair and reasonable value therefore.
33. For the foregoing reasons, Duffield is liable to Barnes for unjust enrichment in the
amount of $156,617.31.
[this space intentionally left blank]
100787926/1)
7
WHEREFORE, Plaintiff requests this Honorable Court enter judgment in favor of Plaintiff
and against Defendant in the amount of $156,617.31.
Dated:
Respectfully submitted,
Alan C. Green (Pa. ID 314432)
Rees Griffiths (Pa. ID 21896 )
CGA Law FIRM
135 North George St.
York, PA 17401
P: 717.848.4900
F: 717.843.9039
Attorneys for Plaintiff
{00787926/1) 8
VERIFICATION
I hereby affirm that the following facts are correct. The attached COMPLAINT is based
upon information which has been furnished to counsel in the preparation of this document. The
language of the COMPLAINT is that of counsel and not mine. I have read the COMPLAINT
and to the extent that the same is based upon information which I have given to counsel, it is true
and correct to the best of my knowledge, information and belief. To the extent that the content
of the COMPLAINT is that of counsel, I have relied upon counsel in making this Verification. I
hereby acknowledge that the averments of fact set forth in the aforesaid COMPLAINT are made
subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn. falsification to authorities.
Susan W. Barnes
Date:
Susan W. Barnes
(0078/926/11 8
LEASE AGREEMENT
This lease agreement entered into as of - 3 �,_ C d , 2007 [date of closing],
between SUSAN W. BARNES, an adult individual, of 14 E. Harmon Drive, Carlisle,
Pennsylvania 17015, referred to as lessor, and DUFFIELD ASSOCIATES, INC., a corporation
I
organized under the laws of the State of Delaware, having its principal place of business at 5400
Limestone Road, Wilmington, Delaware 19808, referred to as lessee.
In consideration of the mutual covenants contained in this lease agreement, the parties
agree as follows:
SECTION ONE
DESCRIPTION OF PREMISES
Lessor leases to lessee the premises, with the 15,150 square feet of improvements thereon
erected, located at 801 Belvedere Street, Carlisle, Pennsylvania 17013, and described more
particularly as follows:
ALL that certain lot of ground, with the building and improvements erected
thereon, located on the South side of Walnut Bottom Road in the Third Ward of the
Borough of Carlisle, Cumberland County, Pennsylvania, more particularly bounded
and described as follows:
BEGINNING at a point on the South side of the Walnut Bottom Road, which
point is 415 feet Southwest of the line dividing the property now or formerly of Roy
H. Wenger, et ux., of which this lot was formerly a part, and the property now or
formerly of the Homewood Church Home, measured, along the South side of the
Walnut Bottom Road; thence from said place of beginning and along the South side
ofthe Walnut Bottom Road, South 55 degrees 46 minutes 30 seconds West 275 feet;
thence by a curve to the left 78.54 feet to a point on the East side of Belvedere Street
extended; thence along said street, South 34 degrees 13 minutes 30 seconds East
84.49 feet; thence along the same by a curve to the left 254.20 feet to a point; thence
by the same, South 86 degrees 14 minutes 30 seconds East 50 feet to a point; thence
by other lands now or formerly of the said Roy H. Wenger, et ux., North 07 degrees
06 minutes East 269.42 feet to a point; thence by the same, North 34 degrees 13
minutes 30 seconds West 183.73 feet to the Place of Beginning, said tract containing
EXHIBIT
b
I
2.196 acres.
BEING the same premises which NDK, Inc., by Deed dated December 16,
1994, and recorded in the Office of the Recorder of Deeds in and for Cumberland
County, Pennsylvania, in Deed Book 116, Page 288, granted and conveyed unto
Susan W. Barnes, the lessor herein.
TOGETHER with all parking areas, drives, curb cuts, easements, etc.
(collectively, the "Premises ").
SECTION TWO
TERM
The term of this lease agreement is five (5) years, beginning on , 2007
[date of closing], and terminating on - 2012.
SECTION THREE
RENT
A. The total annual rent due under this lease agreement is:
Year One: $124,230.00
Year Two:. $127,956.90
Year Three: $131,795:61
Year Four: $135,749.48
Year Five: $139,821.96
B. Lessee shall pay lessor the above - specified amounts in equal monthly installments
($10,352.50 per month during Year One; $10,663.08 per month during Year Two; $10,982.97
per month during Year Three; $11,312.46 per month during Year Four; and $11,651.83 per
2
2.196 acres.
BEING the same premises which NDK, Inc., by Deed dated December 16,
1994, and recorded in the Office of the Recorder of Deeds in and for Cumberland
County, Pennsylvania, in Deed Book 116, Page 288, granted and conveyed unto
Susan W. Barnes, the lessor herein.
k
TOGETHER with all parking areas, drives, curb cuts, easements, etc.
i
(collectively, the "Premises ").
SECTION TWO
TERM
The term of this lease agreement is five (5) years, beginning on S , 2007
[date of closing], and terminating on -� , 2012.
f
SECTION THRE
,7
RENT
A. The total annual rent due under this lease
Year One: $124,230.00
i,4 3P
Year Two: $127,956.90
`--. VS 8.$-'A s* FIAT eA7":
Year Three: $131,795.61 ' ; r Fit S W.5 1;hTr -=
peep ;' rnr za,7'n CMAj
Year Four: $135,749.48
Year Five: $139,821.96
B. Lessee shall pay lessor the above - specified amounts in equal monthly installments
($10,352.50 per month during Year One; $10,663.08 per month during Year Two; $10,982.97
per month during Year Three; $11,312.46 per month during Year Four; and $11,651.83 per
2
month during Year Five), in advance, beginning on , 2007 [date of closing],
with succeeding payments due on the same day of each month thereafter during the term of the
lease agreement.
C. In addition to any other expenses to be paid by lessee as otherwise set forth herein
i
(it being the intention of the parties that this be a "triple -net lease" arrangement), lessee shall pay
the expenses of all real estate taxes and other governmental or municipal assessments levied
against the Premises during the term hereof (including a pro -rata share, calculated as of the date
hereof, of any such taxes or assessments for the current tax periods), all of which shall be timely
paid by lessee upon presentation of copies of invoices therefore by lessor or her agents. Lessee
may, at its own expense, pursue timely and lawful appeals or other challenges of applicable taxes
j and/or assessments, and Lessor shall cooperate in the prosecution of same, upon lessee's written
request and at lessee's expense, in such manner and extent as shall be reasonably necessary and
proper.
SECTION FOUR
USE OF PREMISES
The Premises are to be used for the purposes of lessee's geosciences consulting business
and affiliated businesses, including, without limitation, construction management and
environmental remediation. Lessee shall restrict its use to such purposes, and shall not use or
permit the use of the Premises for any other purpose without the pnorexpresswritten consent of
lessor, which approval shall not be unreasonably withheld.
3
f
I'.
�
r
j i
I
i SECTION FIVE
RESTRICTIONS ON USE
A. Lessee shall not use the Premises in any manner that will knowingly result in a
cancellation of any insurance policy.
B. Lessee shall not keep, use, or sell anything prohibited by any policy of fire
insurance covering the Premises, and shall comply with all requirements of the insurers
applicable to the Premises necessary to keep in force the fire and liability insurance.
SECTION SIX
WASTE, NUISANCE, OR UNLAWFUL ACTIVITY
Lessee shall not allow any excessive waste or nuisance on the Premises, or use or allow
the Premises to be used for any unlawful purpose.
SECTION SEVEN
UTILITIES AND SERVICES
Lessee shall arrange and pay for all utilities and services (whether municipal services or
otherwise) furnished to the Premises for the term of this lease agreement, including, but not
limited to, electricity, gas, water, sewer, cable, telephone service, refuse Hauling, lawn mowing
and maintenance, grounds keeping, landscaping, and snow and ice removal.
SECTION EIGHT
REPAIRS AND MAINTENANCE
4
{ n '
t
Lessee shall maintain the Premises and keep them in good repair at its expense, except
that all major structural components, including the parking lot pavement and the roof, will be
maintained in good condition by lessor. Lessor will likewise make any necessary major repairs
to the HVAC system and sewer pump. Lessee shall maintain and repair windows, doors,
w
skylights, sidewalks, signage, floors, ceilings, interior surfaces, wiring, plumbing, and other
nonstructural components and systems not specified hereinabove.
SECTION NINE
DELIVERY, ACCEPTANCE, AND SURRENDER OF PREMISES
A. Lessor represents that the Premises are in fit condition for use by lessee.
Acceptance of the Premises by lessee shall be construed as recognition that the Premises are in a
good state of repair and in sanitary condition.
B. Lessee shall surrender the Premises at the end of the lease term, or any renewal of
such term, in the same condition as when lessee took possession, allowing for reasonable use and
wear, and damage by. acts of God, including fires and storms. Unless directed otherwise by
lessor, before delivery lessee shall remove all business signs placed on the Premises by lessee
and restore the portion of the Premises on which they were placed in the same condition as when
received, allowing for reasonable use and wear, and damage by acts of God, including fires and
storms.
SECTION TEN
PARTIAL DESTRUCTION OF PREMISES
5
it
x
III
A. Partial destruction of the Premises shall not render this lease agreement void or
voidable, nor terminate it except as specifically provided in this lease agreement. If the Premises
are partially destroyed during the term of this lease agreement, lessor shall repair them when such
i
repairs can be made in conformity with governmental laws and regulations, within ninety (90)
days of the partial destruction. Written notice of the intention of lessor to repair shall be given to
jlessee within fifteen (15) days after any partial destruction. Rent will be reduced proportionately
to the extent to which the repair operations interfere with the business conducted on the Premises
by lessee. If the repairs cannot be made within the time specified above, lessor shall have the
option to make them within a reasonable time and continue this lease agreement in effect with
proportional rent rebate to lessee as provided for in this lease agreement. If the repairs cannot be
made in ninety (90) days, and if lessor does not elect to make them within a reasonable time,
either party shall have the option to terminate this lease agreement.
B. Disputes between lessor and lessee relating to provisions of this section shall be
arbitrated. The parties shall each select an arbitrator, and the two arbitrators selected shall
together select a third arbitrator. The three arbitrators shall determine the dispute, and their
decisions shall be binding on the parties. The parties shall divide the costs of arbitration equally
between them.
SECTION ELEVEN
ENTRY ON PREMISES BY LESSOR
Lessor reserves the right to enter on the Premises at reasonable times, upon notice to
lessee, to irispect the Premises, perform required maintenance and repairs, or to make additions,
6
k
R
i
S
alterations, or modifications to any part of the building in which the Premises are located, and
` lessee shall permit lessor to do so, provided, however, that lessor shall not disrupt the business
I operations of lessee.
SECTION TWELVE
SIGNS, AWNINGS, AND MARQUEES INSTALLED BY LESSEE
Lessee shall not construct or place signs, awnings, marquees, or other structures
projecting from the exterior of the Premises without the prior, express, and written consent of
lessor, which approval shall not be unreasonably withheld.
i
SECTION THIRTEEN
NONLIABILITY OF LESSOR FOR DAMAGES
Lessor shall not be.liable for third party liability or damage claims for injury to persons or
property from any cause relating to the occupancy of the Premises by lessee, including those
arising out of damages or losses occurring on sidewalks and other areas adjacent to the Premises
during the term of this lease agreement or any extension of such term. Lessee shall indemnify
lessor from any and all third party liability, loss, or other damage claims or obligations resulting
from any injuries or losses of this nature.
SECTION FOURTEEN
LIABILITY INSURANCE
A. Lessee shall procure and maintain in force at its expense during the term of this
7
` Y
lease agreement and any extension of such term, public liability insurance with insurers and
through brokers approved by lessor. Such coverage shall be adequate to protect against liability
for damage claims through public use of or arising out of accidents occurring in or around the
Premises, as shall be reasonably satisfactory to lessor. Lessee shall obtain a written obligation
from the insurers to notify lessor in writing at least thirty (30) days prior to cancellation or refusal
to renew any policy.
f
� B. If the insurance policies required by this section are not kept in force during the
entire term of this lease agreement or any extension of such term, lessor may procure the
necessary insurance and pay the premium therefor, and the premium shall be repaid to lessor as
an additional rent installment for the month following the date on which the premiums were paid
by lessor.
SECTION FIFTEEN
PROPERTY INSURANCE
Lessor shall carry fire and extended coverage insurance on the Premises in an amount
lessor reasonably deems sufficient to cover the improvements on the premises, the expenses of
which shall be timely paid by lessee upon presentation of copies of invoices therefore by lessor
or her agents.
SECTION SIXTEEN
ASSIGNMENT, SUBLEASE, OR LICENSE
A. Except with respect to its own affiliates, Lessee shall not assign or sublease the
Premises, or any right or privilege connected with the Premises, or allow any other person except
8
agents and employees of lessee to occupy the Premises or any part of the Premises without first
obtaining the written consent of lessor, which consent shall not be unreasonably withheld. A
consent by lessor shall not be a consent to a subsequent assignment, sublease, or occupation by
other persons.
B. An unauthorized assignment, sublease, or license to occupy by lessee shall be void
and shall terminate this lease agreement at the option of lessor.
C. The interest of lessee in this lease agreement is not assignable by operation. of law
( (other than to the surviving entity of a lawful merger of lessee) without the written consent of
i
t
lessor, which consent shall not be unreasonably withheld.
SECTION SEVENTEEN
BREACH
The appointment of a receiver to take possession of the assets of lessee, a general
assignment for the benefit of the creditors of lessee, any action taken or allowed to be taken by
lessee under any bankruptcy act, or the failure of lessee to comply with each and every term and
condition of this lease agreement after the expiration of any notice period shall constitute a
breach of this lease agreement. Lessee shall have thirty (30) days after receipt of written notice
from lessor of any breach to correct the conditions specified in the notice. If the corrections
cannot be made within the 30 -day period, lessee shall have a reasonable time to correct the
default if action is commenced by lessee within fifteen (15) days after receipt of the notice.
SECTION EIGHTEEN
9
t
REMEDIESFOR BREACH
Lessor shall have the following remedies in addition to its other rights and remedies in
the event lessee breaches this lease agreement and fails to make corrections as set forth in
Section Seventeen:
J � A. Lessor may reenter the Premises immediately and remove the property and
1
personnel of lessee (said property to be stored in a public warehouse or at a place selected by
lessor at the expense of lessee).
B. After reentry, lessor may terminate this lease agreement on giving thirty (30) days'
written notice of termination to lessee. Without such notice, reentry will not terminate this lease
agreement. On termination, lessor may recover from lessee all damages proximately resulting
from the breach, including, but not limited to, the cost of recovering the Premises and the balance
of the rent payments remaining due and unpaid under this lease agreement.
C. After reentering, lessor may relet the Premises or any part of the Premises for any
term without terminating this lease agreement, at such rent and on such terms as it may choose
(lessor shall make reasonable efforts to mitigate its damages by such reletting). Lessor may make
alterations and repairs to the Premises. The duties and liabilities of the parties if the Premises are
relet shall be as follows:
(1) In addition to lessee's liability to lessor for breach of this lease agreement,
lessee shall be liable for all expenses of the reletting, for the alterations and repairs made, and for
the difference between the rent received by lessor under the new lease agreement and the rent
installments that were due for the same period under this lease agreement.
(2) Lessor at its option shall have the right to apply the rent received from
10
µ-
reletting the premises (a) to reduce lessee's indebtedness to lessor under this lease agreement, not
including indebtedness for rent, (b) to expenses of the reletting and alterations and repairs made,
(c) to rent due under this lease agreement, or (d) to payment of future rent under this lease
agreement as it becomes due.
If the new lessee does not pay a rent installment promptly to lessor, and the rent
installment has been credited in advance of payment to the indebtedness of lessee other than rent,
or if rentals from the new lessee have been otherwise applied by lessor as provided for in this
section, and during any rent installment period, are less than the rent payable for the
corresponding installment period under this lease agreement, lessee shall pay lessor the
deficiency, separately for each rent installment deficiency period, and before the end of that
period. Lessor may at any time after such reletting terminate this lease agreement for the breach
on which lessor based the reentry and relet the Premises.
D. After reentry, lessor may procure the appointment of a receiver to take possession
and collect rents and profits of the business of lessee, and if necessary, to collect.the rents and
profits the receiver may carry on the business of lessee and take possession of the personal
property used in the business of lessee, including inventory, trade fixtures, and furnishings and
use them in the business without compensating lessee. Proceedings for appointment of a receiver
by lessor, or the appointment of a receiver and the conduct of the business of lessee by the
receiver, shall not terminate and forfeit this lease agreement unless lessor has given written
notice of termination to lessee as provided in this lease agreement.
In the event lessor materially breaches this lease agreement, and upon lessor's failure,
after receipt of written notice of such breach from lessee, to correct such breach or initiate
11
correction thereof in substantially the same manner as provided for the correction of a breach by
lessee under Section Seventeen hereinabove, lessee, in addition to its other rights and remedies,
may terminate this lease.
f SECTION NINETEEN
S ATTORNEY FEES
If lessor files an action to enforce any agreement contained in this lease agreement, or for
breach of any covenant or condition, and prevails on the merits, lessee shall pay lessor reasonable
attorney fees for the services of lessor's attorney in the action, all fees to be fixed by the court. If
r
lessee files an action to enforce any agreement contained in this lease agreement, or for breach of
t
any covenant or condition, and prevails on the merits, lessor shall pay lessee reasonable attorney
fees for the services of lessee's attorney in the action, all fees to be fixed by the court.
SECTION TWENTY
CONDEMNATION
Eminent domain proceedings resulting in the condemnation of a part of the Premises, but
leaving the remaining premises usable by lessee for the purposes of its business, will not
terminate this lease agreement unless lessor, at its option, terminates this lease agreement by
giving written notice of termination to lessee. The effect of any condemnation, where the option
to terminate is not exercised, will be to terminate this lease agreement as to the portion of the
12
4
l
Premises condemned, and the lease of the remainder of the Premises shall remain intact. The
rental for the remainder of the lease term shall be reduced by the amount that the usefulness of
the Premises has been reduced for the business purposes of lessee. Lessee hereby assigns and
transfers to lessor any claim it may have to compensation for damages as a result of any
condemnation.
SECTION TWENTY -ONE
WAIVERS
Waiver by lessor of any breach of any covenant or duty of lessee under this lease is not a
waiver of a breach of any other covenant or duty of lessee, or of any subsequent breach of the
same covenant or duty.
SECTION TWENTY -TWO
GOVERNING LAW
It is agreed that this lease agreement shall be governed by, construed, and enforced in
accordance with the laws of the Commonwealth of Pennsylvania.
SECTION TWENTY -THREE
ENTIRE AGREEMENT
This lease agreement shall constitute the entire agreement between the parties as to the
subject matter hereof. Any prior understanding or representation of any kind preceding the date
of this lease agreement shall not be binding upon either party except to the extent incorporated in
13
this lease agreement.
SECTION TWENTY -FOUR
MODIFICATION OF AGREEMENT
Any modification of this lease agreement or additional obligation assumed by either party
in connection with this agreement shall be binding only if evidenced in a writing signed by each
party or an authorized representative of each party.
SECTION TWENTY -FIVE
NOTICES
A: All notices, demands, or other writings in this lease agreement provided to be
given or made or sent, or which may be given or made or sent, by either parry to the other, shall
be deemed to have been fully given or made or sent when made in writing and deposited in the
United States mail, registered and postage prepaid, and addressed to the respective addresses of
the parties set forth in the preamble hereof.
B. The address to which any notice, demand, or other writing may be given or made
or sent to any party as above provided may be changed by written notice given by such party as
above provided.
SECTION TWENTY -SIX
BINDING EFFECT
This lease agreement shall bind and inure to the benefit of the respective heirs, personal
14
I
E
representatives, successors, and assigns of the parties.
SECTION TWENTY -SEVEN
TIME OF THE ESSENCE
It is specifically declared and agreed that time is of the essence of this lease agreement.
SECTION TWENTY -EIGHT
PARAGRAPH HEADINGS
The titles to the paragraphs of this lease agreement are solely for the convenience of the
parties and shall not be used to explain, modify, simplify, or aid in the interpretation of the
provisions of this lease agreement.
SECTION TWENTY -NINE
QUIET ENJOYMENT
Lessee, provided it timely and fully pays all rents and abides by and performs all of the
terms and conditions on its part to be observed and performed, shall peaceably and quietly enjoy
the Premises pursuant to the provisions of this Lease, without disturbance by lessor or anyone
claiming under lessor.
SECTION THIRTY
SUBORDINATION
This Lease and all the rights of lessee hereunder shall be subject and subordinate to the
15
V
lien of any mortgage or mortgages or deeds of trust which may now or hereafter affect the real
property of which the Premises are a part, and to any renewals, modifications, consolidations,
replacements, extensions or substitutions of any such mortgage or mortgages whether or not
notice thereof has been provided to lessee.
t
f
SECTION THIRTY -ONE
OPTION TO RENEW
Lessor grants to lessee an option to renew this lease agreement for an additional term of
i
five (5) years after expiration of the initial term hereof, at a rental rate reflecting a commercially
1
reasonable increase to be mutually negotiated and agreed upon by the parties in good faith, with
all other terms and conditions of the renewal lease to be the same as those in this lease
agreement. To exercise this option to renew, lessee must give lessor written notice of intention
to do so at least ninety (90) days before this lease agreement expires.
[intentionally blank]
16
i
I
j IN WITNESS WHEREOF, each party to this lease agreement has caused it to be duly
executed, intending to be legally bound hereby.
WITNESS: Lessor
Susan Barnes
ATTEST: Lessee
e
Duffield A s, Inc.
By :. By:
Title: Title:
CAOffice - General Documents 200718170.20.lease.doe
17
Susan Barnes
j.4 E. Harmon Drive
Carlisle, PA i7oi3
September 4, 2009
Ms. Terry Tucker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
RE: Lease Payments
801 Belvedere Street
Carlisle, Pennsylvania
Dear Ms. Tucker:
# Pursuant to your request, I am willing to grant Duffield Associates, Inc. temporary rent relief
on the referenced property. We will agree to defer $5,332 (50 %) per month of the
$10,663.08 current monthly rent and to defer the annual rent escalation of 3% for the
months of October, November and December of 2009 in recognition of your current financial
situation. If this deferred rent is paid on or prior to June 30, 2010, we will not charge any
interest. If this amount is paid after June 30, 2010, we will require you to execute a note to
Susan Barnes for a period not to exceed two years at an interest rate of 3.5 %.
If these terms are acceptable, please sign where indicated below and return one copy of this
letter agreement. If you have any questions concerning the enclosed, please contact me.
Very truly yours,
Susan Barnes
Landlord
ACCEPTED BY:
(Signature)
(Please Print Name & Title)
FOR: DUFFIELD ASSOCIATES, INC.
DATE:
EXHIBIT
a
D
Susan Barnes
14 E. Harmon Drive
Carlisle, PA 17015
June 30, 2010
Ms. Terry Tucker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
RE: Lease Payments
801 Belvedere Street ,
Carlisle, PA 17013 '
Dear Ms. Tucker.
Pursuant to your request, I am willing to extend the payback deadline on the temporary rent relief on the
referenced property from the original due date of June 30, 2010 to Dec. 31, 2010. The amount of rent relief
granted was $5,332 (50 %) per month of the $10,663.08 monthly rent in force at the time, for the months of
October, November and December of 2009, for a total of $15,996.00. In addition, to memorialize our oral
agreement made last September, I have agreed to defer the 3% annual rent escalation in the amount of
$319.89 per month that was due to take effect on Sept. 1, 2009, per our lease agreement, until . .
Dec. 31, 2010, for a total of $5,118.24 ($319.89 x 16 months). The grand total of all deferred rent is
$21,114.24.
If this deferred rent is paid prior to Dec. 31, 2010, I will not charge any interest. If this amount is paid after
Dec. 31, 2010, I will require you to execute a note to Susan Barnes for a period not to exceed two year at an
interest rate of 3.5 %.
If these terms are acceptable, please sign where indicated below and retur3 i. one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact me.
Very truly yours,
Susan Barnes
Landlord
ACCEPTED BY
(Signature)
Terry M. Tucker, Director of Finance
FOR: Duff dd Associates, Inc,
DATE:
Susan Barnes
14 E. Harmon Drive
Carlisle,. PA 1 7 01 5
November 18, 2010
a
Ms. Terry Tucker, MBA, CDA
r Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
RE: Lease Payments
801 Belvedere Street
Carlisle, Pennsylvania
Dear Ms. Tucker:
Pursuant to your request, I am willing to grant Duffield Associates, Inc. additional temporary rent relief
on the referenced property." We will agree to defer $2,100 per month for the period of October 2010
through March 2011 (6 months) in recognition of your current financial situation.
In addition, I will extend the deferral of the 3% increase scheduled for September 2009 of $319.89
until March 2011, and I will defer the Sept 2010 scheduled increase month for the period September
2010 through March 2011.
The table below summarizes the total rent deferral agreed to:
Deferral Granted From: To: Per Month Amount
Sept 2009 Increase Deferral Sep-09 Mar -11 $ 319.89 $ 6,077.91
50% Rent Deferral' Oct-09 Dec-09 $ 5,332.00 $15,996.00
Sept 2010 Increase Deferral Sep -10 Mar-11 $ 329.49 $ 2,306.43
Partial Rent Deferral Oct-10 Mar-11 $ 2,100.00 $12,600.00
Total Deferral $36;980.34
If this deferred rent is paid on or prior to June 30,2011, we will not charge any interest. If this amount
is paid after June 30, 2011, we will require you to execute a note to Susan Barnes for a period not to
exceed two years at an interest rate of 3.5 %.
If these terms are acceptable, please sign where indicated below and return one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact me.
i
Very truly yours,
4 x,o a` —'x-`4
Susan Barnes
Landlord
ACCEPTED BY:
(Signature)
(Print Name & Title)
FOR: DUFFIELD ASSOCIATES, INC.
DATE:
Susan Barnes
14 E. Harmon Drive
Carlisle, PA 1 7 01 $
April 14, 2011
Ms. Terry Tucker, MBA, CDA
Director of Finance
i Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
E
i
w
RE: Lease Payments - 801 Belvedere Street, Carlisle, Pennsylvania
1
Dear Ms. Tucker:
Pursuant to your request, I am willing to grant Duffield Associates, Inc. additional temporary rent
relief on the referenced property. We will agree to defer $2,100 per month for the period of April
i
2011 through June 2011 (3 months) in recognition of your current financial situation.
In addition, I will extend the deferral of the 3% increase scheduled for September 2009 of $319.89
until June 2011, and I will defer the Sept 2010 scheduled increase for the period September 2010
through June 2011.
The table below summarizes the total rent deferral agreed to:
Deferral Granted From: To: Per Month Amount
Sept 2009 Increase
Deferral Sep -09 Jun -11 $ 319.89 $ 7,037.58
50% Rent Deferral Oct -09 Dec -09 $ 5,332.00 $15,996.00
Sept 2010 Increase
Deferral Sep -10 Jun -11 $ 329.49 $ 3,294.90
Partial Rent Deferral Oct -10 Mar -11 $ 2,100.00 $12,600.00
Partial Rent Deferral Apr -11 Jun -I 1 $ 2,100.00 $ 6,300.00
Total Deferral $45,228.48
If this deferred rent is paid on or prior to Dec. 31, 2011, we will not charge any interest. If this
amount is paid after Dec. 31, 2011, we will require you to execute a note to Susan Barnes fora
period not to exceed two years at an interest rate of 3.5 %.
Susan Barnes
April 14, 2011
Page 2
If these terms are acceptable, please sign where indicated below and return one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact me.
Very truly yours,
Susan Barnes
Landlord
ACCEPTED BY:
(Signature)
(Print Name & Title)
FOR: DUFFIELD ASSOCIATES, INC.
DATE:
Susan Barnes
j i4 E. Harmon Drive
Carlisle, PA i7oi5
° April 14, 2011
Ms. Terry Tucker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
RE: Lease Payments - 801 Belvedere Street, Carlisle, Pennsylvania
i
Dear Ms. Tucker:
Pursuant to your request, I am willing to grant Duffield Associates, Inc. additional temporary rent
relief on the referenced property. We will agree to defer $2,100 per month for the period of April
2011 through June 2011 (3 months) in recognition of your current financial situation.
In addition, I will extend the deferral of the 3% increase scheduled for September 2009 of $319.89
until June 2011, and I will defer the Sept 2010 scheduled increase for the period September 2010
through June 2011.
The table below summarizes the total rent deferral agreed to:
Deferral Granted From: To: Per Month Amount
Sept 2009 Increase
Deferral Sep -09 Jun -II $ 319.89 $ 7,037.58
50% Rent Deferral Oct -09 Dec-09 $ 5,332.00 $15,996.00
Sept 2010 Increase
Deferral Sep -10 Jun -11 $ 329.49 $ 3,294.90
Partial Rent Deferral Oct -10 Mar-11 $ 2,100.00 $12,600.00
Partial Rent Deferral Apr -11 Jun -11 $ 2,100.00 $ 6,300.00
Total Deferral $45,228.48
If this deferred rent is paid on or prior to Dec. 31, 2011, we will not charge any interest. If this
amount is paid after Dec. 31, 2011, we will require you to execute a note to Susan Barnes for a
period not to exceed two years at an interest rate of 3.5 %.
Susan Barnes
April 14, 2011
Page 2
If these terms are acceptable, please sign where indicated below and return one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact me.
Very truly yours,
Susan Barnes
Landlord
ACCEPTED BY:
(Signature)
(Print Name & Title)
FOR: DUFFIELD ASSOCIATES, INC.
DATE:
s
S
c.
Susan Barnes
14 E. Harmon Drive
Carlisle, PA 3L7ox5
i
j November 18, 2010
Ms. Terry Tucker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
I
RE: Lease Payments
801 Belvedere Street
i Carlisle, Pennsylvania
Dear Ms. Tucker:
Pursuant to your request, I am willing to grant Duffield Associates, Inc. additional temporary rent relief
on the referenced property. We will agree to defer $2,100 per month for the period of October 2010
through March 2011 (6 months) in recognition of your current financial situation.
In addition, I will extend the deferral of the 3% increase scheduled for September 2009 of $319.89
until March 2011, and I will defer the Sept 2010 scheduled increase month for the period September
2010 through March 2011.
The table below summarizes the total rent deferral agreed to:
Referral Granted Fro TO, Per Month Amount
Sept 2009 Increase Deferral Sep -09 Mar -11 $ 319.89. $ 6,077.91
50% Rent Deferral Oct-09 Dec-09 $ 5,332.00 $15,996.00
Sept 2010 Increase Deferral Sep -10 Mar-11 $ 329.49 $ 2,306.43
Partial Rent Deferral Oct 10 Mar -I1 $ 2,100.00 $12,600.00
Total Deferral $36,980.34
If this deferred rent is paid on or prior to June 30, 2011, we will not charge any interest.. If this amount
is paid after June 30, 2011, we will require you to execute a note to Susan Barnes for a period not to
exceed two years at an interest rate of 3.5 %.
If these terms are acceptable, please sign where indicated below and return one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact me.
Very truly Y Yours,
f
Susan Barnes
Landlord
i
ACCEPTED BY:
(Signature)
(Print Name & Title)
FOR: DUFFIELD ASSOCIATES, INC.
DATE:
Susan Barytes `
14.x. Harmon Drive
Cadisle, PA 17015
Tune 30, 2010
. Ms. Terry Tacker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
W ilmingt on, DE 19808
RR ' Lease Payments
801 Belvedere Street
Carlisle, PA 17013
f Deaf leis. Tuelmr:
1
Pursuant to your request, I am willing to extend the payback deadline on the temporary teat relief on the
referenced property from the original due date of June 30, 2010 to Dec. 31, 2010. The amount of rent relief
granted was $5,332 (50%) per month of the $10,663.08 monthly rent in force at the time, for the months of
j October, November and December of 2009, for a total of $15,996.00. In addition, to memorialize our oral
agreement matte last September, I have agreed to defer the 3% annual rent escalation in the amount of
$319.89 per month that was due to take effect on Sept. 1, 2009, per our lease agreement, until . .
Dec. 31, 2010, for a total of $ 5,118.24 ($319.89 x 16 months). The grand total of all deferred rent is
$21,114.24.
If this deferred rent is paid prior to Dec. 31, 2010, I will not charge any interest. If this amount is paid after
Dec. 31, 2010, I will require you to execute a note to Susan Barnes for a period not to exceed two year at an
interest rate of 3.5 %.
If these terms are acceptable, please sign where indicated below and return one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact ire.
Very truly yam,
Susan Barnes
Landlord `
ACCEPTED BY:
(Signature)
Terry M. Tacker, Director ofFinatiee
FOR Duffield Associates, Inc.
DATE:
I
t
i
Susan Barnes
14 E. Harmon Drive
Carlisle, PA 3L7o3L5
September 4, 2009
r
Ms. Terry Tucker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
} Wilmington, DE 19808
}
RE: Lease Payments
801 Belvedere Street
II Carlisle, Pennsylvania
} Dear Ms. Tucker:
Pursuant to your request, I am willing to grant Duffield Associates, Inc. temporary rent relief on the
referenced property. We will agree to defer $5,332 (50 %) per month of the $10,663.08 current
monthly rent and to defer the annual rent escalation of 3 % for the months of October, November and
December of 2009 in recognition of your current financial situation. If this deferred rent is paid on or
prior to June 30, 2010, we will not charge any interest. If this amount is paid after June 30, 2010, we
will require you to execute a note to Susan Barnes for a period not to exceed two years at an interest
rate of 3.5°%.
If these terms are acceptable, please sign where indicated below and return one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact me.
Very truly yours,
Susan Barnes
Landlord
ACCEPTED BY:
(Signature)
(Please Print Name & Title)
FOR: DUFFIELD ASSOCIATES, INC.
DATE:
I
Susan Barnes
r iq. E. Harmon Drive
Carlisle, PA 1701.5
r
{
April 14, 2011
'a.
{ Ms. Terry Tucker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
RE: Lease Payments - 801 Belvedere Street, Carlisle, Pennsylvania
3
Dear Ms, Tucker:
Pursuant to your request, I am willing to grant Duffield Associates, Inc. additional temporary rent
relief on the referenced property. We will agree to defer $2,100 per month for the period.of April
2011 through June 2011 (3 months) in recognition of your current financial situation.
In addition, I will extend the deferral of the 3 % increase scheduled for September 2009 of $319.89
until June 2011, and I will defer the Sept 2010 scheduled increase for the period September 2010
through June 2011.
The table below summarizes the total rent deferral agreed to:
Deferral Granted From: To: Per Month Amount
Sept 2009 Increase
Deferral Sep -09 Jun -11 $ 319.89 $ 7,037.58
50% Rent Deferral Oct -09 Dec -09 $ 5,332.00 $15,996.00
Sept 2010 Increase
Deferral Sep -10 Jun -I1 $ 329.49 $ 3,294.90
Partial Rent Deferral Oct -10 Mar -11 $ 2,100.00 $12,600.00
Partial Rent Deferral Apr -11 Jun -11 $ 2,100.00 $ 6,300.00
Total Deferral — iu% It Amy i j 37.1,41 $45,228.48
If this deferred rent is paid .on or prior to Dec. 31, 2011, we will not charge any interest. If this
amount is paid after Dec. 31, 2011, we will require you to execute a note to Susan Barnes for a
period not to exceed two years at an interest rate of 3.5 %.
c
r~
c`
Susan Barnes
April 14, 2011
Page 2
If these terms are acceptable, please sign where indicated below and return one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact me.
Very truly yours,
Susan Barnes
Landlord f j'
�
ACCEPTED BY:
(Signature)
- A, ' Icf 6 Let
(Print Name & Title)
i
FOR: DUFFIELD ASSOCIATES, INC.
DATE:
DUFFIELD DufeldAssocIates, Inc,
5400 Limestone Road
ASSOCIATES W1kdngton,DE 19808 -1232
Consuirants in the Geosdences Phone. 302.239.6534
Fax: 302.239.8485
duffnet.cam
October 19, 2011
Susan Barnes
14 E. Harmon Drive
Carlisle, PA 17015
RE: Rent Deferrals for 801 Belvedere St.
Carlisle, PA
Dear Ms. Barnes:
We are writing to request that effective immediately, we be allowed to continue to defer the
monthly rent through 8/31112 (the termination date of our current lease) on the referenced
property at the rate itemized below, due to economic hardship. In addition, we are requesting
that you defer the rent increase that was scheduled for 9/1/2011.
Current Monthly Deferral $2,749.38
9/1/11 Scheduled 3 Increase $ 339.37
Total $3,088.75
We are proposing the following terms for repayment of the deferred rent: Interest at an annual
rate of 3.5% for deferrals through 12/31/2010 and interest at an annual rate of 3% for deferrals in
2011 and 2012. If the outstanding balance of deferred rent is paid in full on or prior to January
15, 2013, all interest charges will be waived.
We appreciate your willingness to accommodate this request.
Very truly yours,
DUFFIELD ASSOCIATES, INC.
FDr F /Y1�12o ZZ-r
Guy F. Marcozzi, P.E., LEED AP
President
Attachments: Correspondence Relating to Rent Deferrals
Summary of Deferred Rent to Date
Printed an Recycled Stu& t�
i
BARNES,SUSAN
SCHEDULE OF DEFERRED RENT THROUGH OCT. 2011
Date Desc. Amount
10!1/09 OCT DEFERRED LEASE 5,332.00
a
10/27/09 NOV 09 RENT DEFERRED 5,332.00
11/1109 DEC 09 DEF REM' 5,332.00
7/26/10 Deferred Rent 3,518.79
10/1110 RENT OCT 2010 2
1111/10 RENT NOV 2010 2,749.38
i
11/11/10 2009 Rent Increase 959.67
11/41/10 2010 def rent Inc 658.98
12/1110 RENT Dec 2010 2,749.38
1/1/11 RENT Dec 2010 2,749.38
2/1/11 RENT FEB 2011 2,749.38
3/1/11 RENTMAR 2011 2,749.38
4!1111 RENTAPR 2011 2,749.38
5/11/11 RENTMAY2011 2,749.38
8/1/11 RENT JUNE 2011 2,749.38
711/11 RENT JULY 2,749.38
811/11 RENT AUGUST 2011 2,749.38
9/1/11 RENT SEPT2011 3,088.75
10/1111 RENT OCT 2011 3,088.75
Total 56,904.74
i
Jeff Barnes
From: Dave Charles
Sent: Tuesday, October 08, 2013 4:47 PM
To: Jeff Barnes
Cc: Guy Marcozzi
Subject: RE: Carlisle Office Rental
Jeff- before proceeding with mediation or any other action, would it be possible for you & me to meet next week
to discuss?
I am away tomorrow afternoon through the end of this week @ ASFE and am teaching Tues nights. Maybe we
could meet in Lancaster on Wed afternoon, Thurs or Fri next week?
Please let me know if you are willing and what might work for you
Thanks, Dave
t _
i From: Jeff Barnes
f Sent: Tuesday, October 08, 2013 3:38 PM
To: Dave Charles
Cc: Guy Marcozzi
Subject: RE: Carlisle Offlce Rental
Dave,
In the absence of an agreement as outlined in my correspondence of September 12 the October rent
remains at $12,361.43 per month. Accordingly, the payment received for October'of $4,484.00 is
accepted solely as a partial payment of October's rent for the reasons indicated below:
• We have no "mutually satisfactory resolution" of the deferred rent issue. As recently as your e-
mail of October e, you continue to refuse to address the outstanding balance owed.
• As evidenced by the attached photographs taken 10- 06 -13, DAI did not completely vacate the
portions of the building that DAI supposedly no longer desires to. lease from us.
• DAI is occupying 600SF of space not offered by the lessor for the above noted monthly rent
without execution of a new month -to -month lease.
• DAI has failed to indicate in writing its intent relative to a month -to -month lease or one -year
lease.
• The terms of a new lease agreement have not yet been negotiated due to DAI's failure to first.
indicate its intent regarding lease duration terms. Unless and until a new lease is negotiated, it
remains our position that rent in the amount of $12,361.43 continues to be owed monthly.
I have indicated to Lee James that I would be willing to enter into non- binding mediation with Lee
serving as the mediator. However, my willingness to attempt to mediate matters. is conditioned upon
DAI also agreeing thereto in the near future.
Should this matter continue to remain unresolved after November 22, 2013, we will have no alternative
other than to seek legal counsel and pursue whatever action is recommended.
E-H IBIT
Jeff
From: Dave Charles
Sent: Friday, October 04, 2013 5:13 PM
To: Jeff Barnes
Cc: Guy Marcozzi
Subject: RE: Carlisle Office Rental
Jeff -
f
Unfortunately, the deferred rent issue is a little more complicated than characterized below when viewed in the
context of other issues. Additionally unfortunate, is that DAI is not in a position to make a payment of $127.6k
at this time. We would like to discuss the factors related to a mutually satisfactory resolution of this matter.
As we have stated previously, DAI can simply no longer afford to continue to make the rental payments of the
amount made in the past. As you are aware, DAI has recently consolidated the space occupied by DAI and CGCG
in the Carlisle office, in order to reduce the square footage occupied by our personnel consistent to our prior
dialog. Effective October 1, 2013, we are expecting that our rent will now be $4,484 /month, commensurate
with the reduction is area, as discussed previously.
Again, we are willing to and would prefer to stay in the portion of the space we now occupy. If we cannot come
to an agreement, we will have no other choice but to relocate.
Dave
From: Jeff Barnes
Sent: Thursday, September 12, 2013 4:39 PM
To: Dave Charles
Subject: Re: Carlisle Office Rental
Dave,
The deferred rent issue is not complicated. Commencing in 2009, DAI requested temporary rent relief and has
repeatedly promised to pay interest if the deferred rent was not paid by dates specified in the deferred rent
agreements executed by Susan Barnes and DAI. Unfortunately, DAI's "temporary" rent relief requests have
continued for the past 4 years without any attempt being made by DAI to pay the amount due. DAI's repeated
promises to pay us the deferred rent at some future date with interest are no longer acceptable. Accordingly,
any agreement regarding the potential amendment of the area being leased by DAI will require a resolution of
the deferred rent at the same time. We will not agree to terms to reduce the square footage being leased by
DAI unless a satisfactory resolution is also reached as to the deferred rent.
As you are aware, we agreed to defer rent for the past 4 years in good faith and as a gesture of goodwill to
DAI. The total amount of deferred rent due as of August 31, 2013, exclusive of accrued interest, and exclusive of
annual escalators beyond 9 -01 -12 per our 8 -31 -07 Lease Agreement, is $127;606. As evidenced below, while we
are willing to demonstrate our continued good faith, by renegotiating the terms of the square footage being
leased by DAI, it will likewise be necessary for DAI to demonstrate its faith by conclusively addressing the
deferred rent issue.
2
To this end, we are willing to offer several payment proposals for your consideration which are consistent with
the series of letters and agreements executed between us with regard to payment of the deferred rent, the
most recent of which is dated October 19, 2011, and is attached. However, decisive action in this regard is now
.required, irrespective of whether or not DAI elects to continue renting space at 801 Belvedere Street. We are
also willing to offer you several options to consider regarding future leasing of a reduced amount of space at this
location per your request.
These proposed terms and conditions options are as follows:
FINANCIAL OBLIGATIONS — DEFERRED RENT
Proposal #1 I ? & 4, y �,
DAI will pay the full amount of deferred rent due of $;P-,6961as of Aegtrst -31, 2013) by October 1,
2013.
We will waive all, interest on the deferred rent (3.5% in 2009 - 2010; 3.0% in 2011 — 2013).
We will waive the annual rent escalator (3.0 %) in the 6tn (9/01/12 - 8/31/13) and 7" (9/01/13 - 8/31/14)
years of the lease.
Proposal #2
DAI will make monthly payments beginning October 1, 2013 for a 2 -year term completed September ,
2015.
The payment terms will be documented by a Note.
The amount due will include all interest identified in Proposal #1 above.
The amount due will include the annual rent escalator identified in Proposal #1 above.
The amount due will be amortized into equal monthly payments at 3% interest.
RENTALSPACE
Proposal #1
Beginning October 1, 2013 DAI /CGCG to lease 7,790 SF (7,190SF proposed + 600SF additional
requested)
Monthly rent = $4,478 + 50% triple net expenses.
Term: month to month.
30 day notice of termination by either party, otherwise the lease will be renewed month to month
thereafter.
A new lease agreement will be executed.
The current lease terms will remain in effect until DAI totally vacates existing space not included in the
amended lease agreement.
Proposal #2
Beginning October 1, 2013 DAI /CGCG to lease 7,190 SF per original proposal.
Monthly rent = $4,478 + 45% triple net expenses.
Term: 1 year lease.
90 day notice of termination by either party, otherwise the lease will be renewed on a six month basis
thereafter.
A new lease agreement will be executed.
The current lease terms will-remain in effect until DAI totally vacates existing space not included in the
new lease agreement.
3
f
,
i S. Jeffrey Barnes, P.E. Duffield Associates, Inc.
Senior Consultant 801 Belvedere St.
Carlisle, PA 17013
DtTFFXELD P (717) 245.9100
ASSOCIATIES F (717) 245.9656
j sat:. wster & m Env:romne t
DE - PA - MD - IVJ
(
From: Dave Charles
i Sent: Friday, September 06, 2013 4:54 PM
To: Jeff Barnes
Subject: Carlisle Office Rental
Jeff —Based on recent discussions, you are aware that Duffield Associates is not in a position to provide full
payment for the deferred rent at this time. If you would like to meet to discuss this issue further, I am willing to
do so.
The deferred rent issue is more complicated than the immediate issue, (rent and facility space), which we
urgently need to resolve this month because we simply cannot afford to continue to pay rent for space we are
not using .... we are losing money with each day.
We do have a time constraint regarding the existing space. As we indicated, Duffield Associates does not wish to
remain in the full space and pay the full rent. We are willing to and would prefer to stay in a portion of the
space we now occupy and have presented a proposal for that scenario. We would like reach an agreement
immediately and move to that situation. If we cannot come to an agreement promptly, we will have no other
choice but to relocate.
Once again, I would ask that you to accept the revised terms we have proposed.
Thanks, Dave
Please considerthe environment before printing this E -Mail
4
DUFFIELD Duffield Associates, Inc.
5400 Limestone Road
^ - ASSOCIAT lWihnington,DE 19808 -1232
Consultants in the 6eosefences Phone: 302.239.6634
# Fax: 302.239.8485
I
duffnet.com
December 20, 2013 (Z —L'`� l,
i
Via Certified Mail
Mrs. Susan W. Barnes
14 East Harmon Drive
Carlisle, PA 17015
i
i
RE: Lease of 801 Belvedere Street
Carlisle, Pennsylvania
Dear Mrs. Barnes:
This letter is written to notify you that Duffield Associates, Inc. will terminate our lease of the
property at 801 Belvedere Street as of January 30, 2014. We will coordinate with you prior to
that date on a time for a final building walkthrough and relinquishing of keys for the building.
Very truly yours,
DUFFIELD ASSOCIATES, INC.
Guy F. M cozzi, P.E., LE AP BD +C
President
WORD \LEASE TERMINATION_ 801 BELVEDERE.COR
CERTIFIED MAIL RECEIPT N0.7013 1090 0000 8061 9249
EXHIBIT
b
a
a
8
!'M e 0 "
Duffield Associates, Inc.
DUFFIELD 5400 Limestone Road
ASSOCIATES EIMM
Wilmington, DE 19808 -1232
Phone: 302.239.6634
Consultants in the Geosciences
Fax: 302.239.8485
duffnet.com
December 20, 2013
Via Certified Mail
Mrs. Susan W. Barnes
14 East Harmon Drive
Carlisle, PA 17015-
RE: Lease of 801 Belvedere Street
Carlisle, Pennsylvania
Dear Mrs. Barnes:
This letter is written to notify you that Duffield Associates, Inc. will terminate our lease of the
property at 801 Belvedere Street as of January 30, 2014. We will coordinate with you prior to
that date on a time for a final building walkthrough and relinquishing of keys for the building.
Very truly yours,
DUFFIELD ASSOCIATES, INC.
Guy C n, Cozzi P.E., LE AP BD +C
President
WORD \LEASE TERMINATION_801 BELVEDERE.COR
CERTIFIED MAIL RECEIPT NO. 7013 1090 0000 8061 9249
Printed on Recycled Stock ,7
i
Month / Year Rent Due Partial Rent Paid Deferred Rent Due
LEASE YEAR 3
e to
S p tuber 2009 $10,982.97 $10,663.08 $319.89
1 October 2009 $10,982.97 $5,331.08 $5,651.89
s
+ November 2009 $10,982.97 $5,331.08 $5,651.89
December 2009 $10,982.97 $5,331.08 $5,651.89
January 2010 $10,982.97 $10,663.08 $319.89
February 2010 $10,982.97 $10,663.08 $319.89
March 2010 $10,982.97 $10,663.08 $319.89
April 2010 $10,982.97 $10,663.08 $319.89
May 2010 $10,982.97 $10,663.08 $319.89
June 2010 $10,982.97 $10,663.08 $319.89
July 2010 $10,982.97 $10,663.08 $319.89
August 2010 $10,982.97 $10,663.08 $319.89
SUBTOTAL YR 3 $19,834.68
LEASE YEAR 4
September 2010 $11,312.46 $10,663.08 $649.38
October 2010 $11,312.46 $8,563.08 $2,749.38
November 2010 $11,312.46 $8,563.08 $2,749.38
December 2010 $11,312.46 $8,563.08 $2,749.38
JanuM 2011 $11,312.46 $8,563.08 $2,749.38
February 2011 $11312.46 $8,563.08 $2,749.38
March 2011 $11,312.46 $8,563.08 $2,749.38
April 2 011 $11,312.46 $8,563.08 $2,749.38
Ma 2011 $11,312.46 $8,563.08 $2,749.38
June 2011 $11,312.46 $8,563.08 $2,749.38
July 2011 $11,312.46 $8,563.08 $2,749.38
Au Rust 2011 $11,312.46 $8,563.08 $2,749.38
SUBTOTAL YR 4 $30 892.56
LEASE YEAR 5
September 2011 $11,651.83 $8,563.08 $3,088.75
October 2011 $11,651.83 $8,563.08 $3,088.75
November 2011 $11,651.83 $8,563.08 $3,088.75
December 2011 $11,651.83 $8,563.08 $3,088.75
January 2012 $11,651.83 $8,563.08 $3,088.75
Februpa 2012 $11,651.83 $8,563.08 $3,088.75
March 2012 $11,651.83 $8,563.08 $3,088.75
April 2012 $11,651.83 $8,563.08 $3,088.75
May 2012 $11,651.83 $8,563.08 $3,088.75
June 2012 $11,651.83 $8,563.08 $3,088.75
Jul 2012 $11,651.83 $8,563.08 $3,088.75
August 2012 $11,651.83 $8,563.08 $3,088.75
SUBTOTAL YR 5 $37,065.00
LEASE YEAR 6
September 2012 $11,651.83 $8,563.08 $3 ,08 . 8. 7
10078821211} EXHIBIT
b
a
3 r
October 2012 $11,651.83 $8,563.08 $3,088.75
' November 2012 $11,651.83 $8,563.08 $3,088.75
I
December 2012 $11,651.83 $8,563.08 $3,088.75
January 2013 $11,651.83 $8,563.08 $3,088.75
February 2013 $11,651.83 $8,563.08 $3,088.75
March 2013 $11,651.83 $8,563.08 $3
April 2013 $11,651.83 $8,563.08 $3,088.75
May 2013 $11,651.83 $8,563.08 $3,088.75
June 2013 $11,651.83 $8,563.08 $3,088.75
July 2013 $11,651.83 $8,563.08 $3,088.75
August 2013 $11,651.83 $8,563.08 $3,088.75
SUBTOTAL YR 6 $37,065.00
LEASE YEAR 7
September 2013 $11,651.83 $8,563.08 $3,088.75
October 2013 $11,651.83 $4,484.00 $7,167.83
November 2013 $11,651.83 $4,484.00 $7,167.83
December 2013 $11,651.83 $4,484.00 $7,167.83
Jan 2014 $11,651.83 $4,484.00 $7,167.83
SUBTOTAL YTD 7 $31760.07
TOTAL BACK $156,617.31
RENT DUE
FUTURE RENT DUE
OBLIGATIONS
Year 7 (February $81,562.81
2014-August 2014
Year 8 $139,821.96
Year 9 $139,821.96
Year 10 $139,821.96
TOTAL FUTURE $501,028.69
OBLIGATIONS
GRAND TOTAL
$657,646.00
(00768414/1}
rH PRCTI'0NOTA.
t
HAR 13 MI 9: 53
CUMBERLAND COUNTY
PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY PENNSYLVANIA
SUSAN W. BARNES,
Plaintiff,
versus
DUFFIELD ASSOCIATES, INC.,
Defendants.
DOCKET NO: 14-864
CIVIL ACTION - LAW
AFFIDAVIT OF SERVICE
COMMONWEALTH OF PENNSYLVANIA
: ss.
COUNTY OF YORK
Before me, the undersigned officer, personally appeared KelliAnn Winkowski, who being duly sworn
according to law, deposes and says that she served the Complaint filed on February 14, 2014, in the
above-captioned matter on the Defendant, Duffield Associates, Inc, in the following manner:
Certified mail, return receipt requested, was mailed on February 21, 2014, to Duffield Associates Inc,
5400 Limestone Rd, Wilmington DE 19808, which CGA Law Firm's return address appeared on
mailing envelopes. Certified mail has not been returned as of the date of this filing. Also sent USA
Regular mail to Duffield Associates Inc, 5400 Limestone Rd, Wilmington DE 19808, which "was not
returned as bad mailing address" or "returned to sender".
Sworn and subscribed to
before me this 11 day
of —Tr161/1 , 2014
pLes
Not. Public
My commission expires:
(00802152/1)
COTIMfl
CGA Law Firm
OF ENNSY
A
KelliAnn Winkowski,
paralegal
Notarial Seal
Christy L. LaMotte, Notary Public
City of York, York County
1.11 GoMMIsSIbn Ex Wes 2014..__
sTe-
e n
yenta
ALLEN B. DUBROFF, ESQ. &
ASSOCIATES, LLC
By: Allen B. Dubroff, Esq. (04686)
By: John F. Thomas, Jr., Esq. (75591)
1500 JFK Boulevard, Suite 1030
Philadelphia, PA 19102
(215) 568 -2700
SUSAN W. BARNES
Plaintiff,
20 MAR 1 8 IMO: 3 1
.:1¢ B L AND COUNTY
PENNSYLVANIA
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
v. CIVIL ACTION
DUFFIELD ASSOCIATES, INC. No. 14 -864 (CIVIL)
Defendant.
NOTICE TO DEFEND
You have been sued in Court. If you wish to defend against the claim set forth in the
following pages, you must take action within (20) days after this Complaint and Notice
are served, by entering a written appearance personally or by an attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you.
You are warned that if you fail to do so, the case may proceed without you and a
judgment may be entered against you by the Court without further notice for any money
claimed or any other claim or relief requested by the plaintiff. You may lose money or
property rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 S. Bedford Street
Carlisle, PA 17013
(800) 990 -9108
(717) 249 -3166
ALLEN B. DUBROFF, ESQ. &
ASSOCIATES, LLC
By: Allen B. Dubroff, Esq. (04686)
By: John F. Thomas, Jr., Esq. (75591)
1500 JFK Boulevard, Suite 1030
Philadelphia, PA 19102
(215) 568-2700
SUSAN W. BARNES COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiff,
V.
DUFFIELD ASSOCIATES, INC.
Defendant.
CIVIL ACTION
No. 14-864 (CIVIL)
PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
NOW COMES Defendant Duffield Associates, Inc. ("Defendant" or "Duffield"),
by and through the undersigned counsel, Allen B. Dubroff, Esq. & Associates, LLC, and
hereby file Preliminary Objections to Plaintiffs Complaint, as follows:
Demurrer/Strike Pleading
Rule 1028(a)(2) — Failure to Conform to Rules of Court
(Entire Complaint)
1. Per Rule 1024 of the Pennsylvania Rules of Civil Procedure, each
pleading which states an averment of fact must be verified by the party, or if not by the
party, a person with sufficient knowledge of the facts in such pleading, and state why the
party was not available to verify the pleading.
2. The Petition filed by Plaintiff contains a verification which does not
specifically verify the averments of fact in the Complaint.
3. Instead, a verification of Plaintiff Susan W. Barnes is attached, which
states that "the language of the Complaint is that of counsel and not" Plaintiff, and says
that "to the extent that the content of the Complaint is that of counsel, I have relied upon
counsel in making this Verification." A copy of Plaintiff's Verification is attached hereto
as Exhibit "A" and incorporated herein by reference.
4. Neither the Complaint, nor the Verification, specify which language is that
of counsel, and which language is that of Ms. Barnes, nor does the Verification or the
Complaint in any way specify which facts are verified and which are not.
5. Given that the Verification does not verify all of the facts of the
Complaint, it does not comply with the requirements of Rule 1024.
6. As such, the Complaint is facially defective, and must be stricken.
Wherefore, Defendant prays this honorable Court grant Defendant's preliminary
objections, and dismiss the instant Complaint, with prejudice and without leave to amend,
in its entirety.
DEMURRER — COUNT ONE
RULE 1019(a)
7. Defendant hereby incorporates the foregoing Preliminary Objections as if
set forth fully herein.
8. Pa.R.C.P. 1019(a) provides, "[t]he material facts on which a cause of
action or defense is based shall be stated in a concise and summary form."
9. Pa.R.C.P. 1028(a) (3) permits a party to file preliminary objections for the
insufficient specificity in a pleading.
10. The ad damnum clause of Plaintiff's Complaint seeks specialty damages,
to wit, "and (c) an award of any and all other relief that this Court deems just."
11. Plaintiff fails to specifically plead facts related to these special damages.
12. Without a more specific allegation(s) in the Complaint, Defendant cannot
determine when the causes of action, if any, arose or otherwise properly prepare defenses
which may be available.
13. Plaintiffs request in Paragraph 2 of the ad damnum clause of Count I
seeking "damages resulting from Defendant's unilateral termination of the Lease
Agreement, including prospective rent, incidental, and consequential damages, in an
amount to be proved at trial in excess of the statutory arbitration limit" amounts to a
claim for special damages. See Hooker v. State Farm Fire and Casualty Company, 880
A.2d 70,77 (Pa. Commw. 2005).
14. According to the court in Hooker. supra, "[ s]pecial damages are those
that are not the usual and ordinary consequences of the wrong done but which depend on "
special circumstances." Id.
15. The Pennsylvania Rules of Civil Procedure require that items of special
damages be specifically pled. Pa.R.c.p. 1019(f).
16. The Court in Hooker, supra provided, "special damages may not be
proved unless special facts giving rise to them are averred." Id. at 77 citing Laing v.
Colder, 8 Pa. 479 (1848).
17. Because of Plaintiff's failure to provide Defendant with specific facts
upon which special damages should be granted, Defendant is unable to ascertain why
Plaintiff is seeking special damages and, therefore, the same should be, respectfully,
stricken.
WHEREFORE, Defendant prays this honorable Court sustain Defendant's
Preliminary Objections, dismissing the Complaint in its entirety.
Demurrer — Rule 1028(1), 1028(2) and /or Rule 1028(4)
as to Count II of the Complaint
18. Defendant hereby incorporates the foregoing Preliminary Objections as if
set forth fully herein.
19. Count II is captioned "Unjust Enrichment" and appears to sound in
quantum meruit or quasi- contract.
20. However, the measure of damages sought by Plaintiff in Count II is
apparently determined by the amount of money allegedly due under the lease contract.
See, Complaint, ¶ 1131 -33.
21. Plaintiff cannot seek contractual damages in quasi- contract. Indeed, the
existence of a written contract precludes a finding of quasi- contract. First Wisconsin
Trust Co. v. Strausser, 439 Pa.Super. 192, 653 A.2d 688 (1995).
22. A successful claim for quasi- contract or unjust enrichment provides only
for an award of the fair value of the benefit received by the Defendant. There is no
showing of what a fair value might be.
23. The only allegation of damages is for rental value per the alleged lease
contract.
24. As such, the Plaintiff is not entitled to plead Unjust Enrichment.
WHEREFORE, Defendants hereby pray this honorable Court that an Order be
entered, dismissing the Petition in its entirety, with prejudice, without leave to amend.
[Signature to Follow]
ALLEN B. DUBROFF, ESQ. & ASSOCIATES, LLC
BY:
DATE: March 17, 2014
Allen B. Dubroff, Esq. (04686)
John F. Thomas, Jr., Esq. (75591)
VERIFICATION
I, Christopher C. Whallon, Esquire, Corporate Counsel of defendant Duffield
Associates, Inc., and being authorized to make this Verification on its behalf do hereby
verify that the statements made in the foregoing pleading are true and correct to the best
of my knowledge and belief. I understand that false statements made herein are subject
to the penalties of 18 PA. C.S, Subsection 4904, relating to unworn falsification to
authorities.
Date: 3/17/14
Christopher C. Whal • n, Esquire
VERIFICATION
I hereby affirm that the following facts are correct. The attached COMPLAINT is based
upon information which has been furnished to counsel in the preparation of this document. The
language of the COMPLAINT is that of counsel and not mine. I have read the COMPLAINT
and to the extent that the same is based upon information which I have given to counsel, it is true
and correct to the best of my knowledge, information and belief. To the extent that the content
of the COMPLAINT is that of counsel, I have relied upon counsel in making this Verification. I
hereby acknowledge that the averments of fact set forth in the aforesaid COMPLAINT are made
subject to the penalties of 18 Pa. C.S. 4904 relating to unworn falsification to authorities.
Date:
100787926/4
EXHIBIT "A"
8
Susan W. Barnes
Susan W. Barnes
CERTIFICATE OF SERVICE
I, John F. Thomas, Jr., hereby certify that I have this 17th day of March, 2014
served a true and correct copy of the foregoing Preliminary Objections and Notice to
Defend, via United States first class mail, postage prepaid, addressed as follows:.
Alan C. Green, Esq.
Rees Griffiths, Esq.
CGI Law Firm
135 N. George St.
York, PA 17401
Attorney for Plaintiff
F. Thomas, Jr., Esq.
SUSAN W. BARNES COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiff,
V.
DUFFIELD ASSOCIATES, INC.
Defendant.
CIVIL ACTION
No. 14-864 (CIVIL)
ORDER
UPON CONSIDERATION of Defendants' Preliminary Objections to Plaintiffs Complaint
and any response thereto, it is hereby ORDERED this day of , 2014, that the
Complaint of Plaintiff is hereby dismissed, with prejudice.
Fi
2O11i PR -14 Lt]
r,� �M3ER_ SN CO A a`(
�'C1r
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY PENNSYLVANIA
SUSAN W. BARNES,
Plaintiff, Docket No. 14 -864
versus
DUFFIELD ASSOCIATES, INC.,
Defendants.
CIVIL ACTION - LAW
AMENDED COMPLAINT
AND NOW this 34 day of April, 2014 comes Plaintiff Susan W. Barnes, by and
through her attorneys, CGA Law Firm by Alan C. Green, Esquire to file the herein Amended
Complaint and, in support thereof, submits the following:
1. Plaintiff Susan W. Barnes is an adult individual residing at 14 East Harmon Drive,
Carlisle, Pennsylvania, 17015.
2. Defendant Duffield Associates, Inc. ( "Duffield ") is a business corporation organized
under the laws of the State of Delaware having its principal place of business at 5400 Limestone
Road, Wilmington, Delaware, 19808.
3. Barnes is the owner of commercial real property, on which was erected and
improved a 15,150 square foot office building, located at 801 Belvedere Street, Carlisle,
Pennsylvania, 17013 (the "Premises ").
4. On August 31, 2007, Barnes and Duffield entered into a written Lease Agreement
whereby Mrs. Barnes leased the Premises to Duffield as a location from which Duffield could
[0081018o/1]
conduct its local business operations. A true and accurate copy of the Lease Agreement is attached
hereto as Exhibit "A ".
5. Pursuant to Section 2 of Lease Agreement, the duration of the lease was a term of
five (5) years beginning on September 1, 2007 and terminating on August 31, 2012. See Lease
Agreement (Ex. A), at § 2.
6. Pursuant to Section 3.A of the Lease Agreement, rent due by Duffield calculated
annually and increased by 3% each year of the term of the lease, beginning with $124,230.00 total
annual rent in Year One (9/1/2007 to 8/31/2008) and ending with $139,821.96 annual rent due in
Year Five (9/1/2011 to 8/31/2012). See Lease Agreement (Ex. A), at § 3.A.
7. Pursuant to Section 3.B of the Lease Agreement, rent payments were to be paid in
equal monthly installments, due, in advance, on the last day of each month. See Lease Agreement
(Ex. A), at § 3.B.
8. Further, the terms of the Lease Agreement provided for a "triple net lease ": Duffield
assumed responsibility for payment of all real estate taxes, utilities and maintenance expenses on the
Premises during the term of its tenancy. See Lease Agreement (Ex. A), at §§ 3.C, 7 -8.
9. Although the stated term of the lease expired on August 31, 2012, Duffield remained
in possession of the Premises and continued to pay rent to Barnes, through January 31, 2014.
10. Barnes manifested her intent to treat Duffield as a holdover tenant by continuing to
collect rent and declining to reenter the Premises or oust Duffield.
11. Pursuant to Section 31 of the Lease Agreement, Duffield was granted an option to
renew the Lease Agreement for an additional term of five (5) years after expiration of the initial
term. See Lease Agreement (Ex. A), at § 31.
�oo8ioi8oh)
2
12. Thus, by operation of law, Duffield's holding over after the lease term expired
extended the term of the lease for a successive term of five years on the same covenants and
conditions as those contained in the Lease Agreement.
13. Beginning in September of 2009 (Lease Year 3), Duffield began experiencing
economic hardship and requested of Barnes temporary rent relief in the form of deferred payments.
14. Since the beginning of Year 3 Barnes gratuitously agreed to five separate rent
deferral plans as follows:
a. On September 4, 2009, Barnes agreed to defer 50% of the monthly
rent and defer the Year 3 annual rent escalation for the months of October,
November and December of 2009, with the deferred rent in the amount of
$15,996.00 due, interest free, on June 30, 2010.
b. On June 30, 2010, Duffield still asserting financial hardship, Barnes
again agreed to extend the payment deadline for the deferred rent and defer the
annual rent escalation for an additional six-months, with the deferred rent, now
totaling $21,114.24, due, interest free, on December 31, 2010.
c. On November 18, 2010, Duffield again asserting financial hardship,
Barnes once more agreed to (1) extend the payment deadline for the deferred rent for
an additional six months, (2) defer the annual rent escalation for Years 3 and 4 for an
additional three months, and (3) defer $2,100 of the monthly rent for the next six
months with all deferred rent, now totaling $36,980.34, due, interest free, on June
30, 2011.
d. On April 14, 2011, Duffield once more asserting financial hardship,
Barnes yet again agreed to (1) extend the payment deadline for the deferred rent for
an additional six months, (2) defer the annual rent escalation for Years 3 and 4 for an
ioo8iol8o/i)
3
additional three months, and (3) defer $2,100 of the monthly rent for the next three
months with all deferred rent, now totaling $45,228.48, due, interest free, on
December 31, 2011.
e. Finally, on October 19, 2011, Duffield quite predictably asserting
financial hardship, Barnes one last time agreed to (1) extend the payment deadline
for the deferred rent for an additional year, (2) defer the annual rent escalation for
Years 3, 4 and 5 for the remainder of the five year term of lease, and (3) defer
$2,749.38 of the monthly rent for the remainder of the five year term of lease with
all deferred rent, now totaling $56,904.74, due, interest free, on January 15, 2013.
f. Pursuant to the October 19, 2011 rent deferral agreement, if the
deferred rent was not paid in full by January 15, 2013, interest would accrue on the
balance at an annual rate of 3.5% for the deferrals through the end of calendar year
2010 and at an annual rate of 3% for deferrals in the calendar years 2011 and 2012.
True and accurate copies of correspondences memorializing the terms of the rent deferral plans are
attached hereto as Exhibit "B ".
15. By the end of the five year term of lease on August 31, 2012, Barnes continued to
permit Duffield to defer $2,749.38 of the monthly rent due each month and to refrain from
demanding payment in the past due amounts for an indefinite period of time as negotiations over
restructuring of Duffield's debts ensued.
16. Matters finally reached a head in the autumn of 2013, when Duffield unilaterally
decided to reformulate the terms of the lease agreement to (1) reduce the amount of office space
leased by approximately half, (2) reduce their already partially deferred monthly rent by half, and
(3) asserting in no uncertain terms that payment of past due deferred would not be forthcoming in
the foreseeable future. True and accurate copies of email correspondences between Duffield Vice
joo8iei o/j
4
President R. David Charles and Mrs. Barnes' husband S. Jeffrey Barnes evidencing these averments
are attached hereto as Exhibit "C",
17. On or around December 20, 2013, Duffield notified Barnes that it was unilaterally
terminating its lease as of January 30, 2014. A true and accurate copy of the Notice of Termination
is attached hereto as Exhibit "D".
18. Calculated on the basis of a 3% annual escalation for the original five year term of
lease with no escalation thereafter, as ofJanuary 31, 2014, the total amount of the back rent due and
owing by Duffield equals $156,617.31; the total amount of rent due for the remainder of term of
lease Year 7 would equal $81,562.81; the total amount of rent due for the remainder on the renewed
5 year term of lease would equal $501,028.69; the sum total amount of Duffield's outstanding
obligations equals $657,646.00. A detailed accounting of these amounts is attached hereto as
Exhibit "E".
COUNT I — BREACH OF CONTRACT
19. Plaintiff incorporates each of the preceding paragraphs by reference as though set
forth at length herein.
20. The Lease Agreement is a valid and enforceable contract between the parties.
21. Duffield's aforementioned conduct constitutes a material breach of the Lease
Agreement.
22. Barnes has, at times relevant hereto, performed all of her materials obligations under
the terms of the Lease Agreement.
23. As a result of Duffield's breach, Barnes has suffered damages in the form of (1)
unpaid back rent as described above, (2) expectation damages as a result of Duffield's unilateral
(oo6iot8011)
5
termination of the Lease Agreement, and (3) consequential and incidental damages as a result of
Duffield's unilateral termination of the Lease Agreement.
24. Additionally, pursuant to Section 19 of the Lease Agreement, Barnes is entitled to
collect reasonable attorneys' fees incurred in an action for Duffield's breach of the Lease
Agreement. See Lease Agreement (Ex. A), at § 19.
25. The relief sought on account of back rent due and owing are liquidated damages in
the amount of $156,617.31 together with interest, costs, attorneys fees and other charges collectible
under the terms of the Lease Agreement.
26. Mrs. Barnes is, as of the filing of this Complaint, making good faith efforts to find
replacement tenants, in the pursuit of which she continues to incur consequential expenses in the
form of costs associated with obtaining replacement tenants including advertising the Premises for
rent, showing the Premises to potential lessees, and making the Premises fit to relet.
27. Additionally, as a direct result of Duffield's unilateral termination in breach of the
Lease Agreement, Barnes has suffered incidental damages in the form of her becoming liable for,
and her making payment on, real estate taxes, utilities and maintenance expenses, all of which were
to be assumed by Duffield under the terms of the "triple net" lease.
28. However, if such replacement tenants are secured, the rent collected therefrom will
offset the damages accruing from loss of rental profits.
29. Therefore, the relief sought on account of Duffield's unilateral termination in breach
of the Lease Agreement are unliquidated damages, including prospective rent, consequential and
incidental damages, in an amount to be determined at trial, together with interest, costs, attorneys'
fees and other charges collectible under the terms of the Lease Agreement.
WHEREFORE, Plaintiff requests this Honorable Court enter judgment in favor of Plaintiff
and against Defendant for:
(on8ol8o/tI
6
1. Damages resulting from unpaid back rent due and owing to Plaintiff in the amount
of $156,617.31; and
2. Damages resulting from Defendant's unilateral termination of the Lease Agreement,
including prospective rent, incidental and consequential damages, in an amount to be proven at trial
in excess of the statutory arbitration limit; together with
All interest, costs, attorneys fees and other charges collectible under the terms of the
Lease Agreement.
COUNT II — UNJUST ENRICHMENT
(Alternative to Count I)
30. Plaintiff incorporates each of the preceding paragraphs by reference as though set
forth at length herein.
31. By virtue of Duffield's occupancy, and conducting of business from, the Premises,
Barnes has conferred a substantial benefit upon Duffield.
32. Duffield knew that the Premises were owned by Barnes and consented, through their
occupation thereof, to receive the benefit conferred by Barnes.
33. It would be unjust and inequitable for Duffield to retain the benefits provided by
Barnes without paying full, fair and reasonable value therefore.
34. For the foregoing reasons, Duffield is liable to Barnes for unjust enrichment in the
amount of the fair and reasonable value of the benefit conferred to Duffield through their occupation
of the Premises.
(oo8lot8o/I)
7
WHEREFORE, Plaintiff requests this Honorable Court enter judgment in favor of Plaintiff
and against Defendant in an amount to be proven at trial in excess of the statutory arbitration limit.
Dated: Li
oof3loi8o/11
8
Respectfully submitted,
Alan C. Green (Pa. ID 314432)
Rees Griffiths (Pa. ID 21896 )
CGA LAW FIRM
135 North George St.
York, PA 17401
P; 717.848.4900
F: 717.843.9039
Attorneys for Plaintiff
VERIFICATION
Subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to
authorities, 1 hereby affirm that the facts set forth in the foregoing Amended Complaint are true
and correct to the best of my information and belief
Date: •1/1 i(
loaSun8o/.1
9
Susan W. Barnes
Susan W. Barnes
LEASE AGREEMENT
This lease agreement entered into as of 3 / a 0 ° 7 , 2007 [date of closing],
between SUSAN W. BARNES, an adult individual, of 14 E. Harmon Drive, Carlisle,
Pennsylvania 17015, referred to as lessor, and DUFFIELD ASSOCIATES, INC., a corporation
organized under the laws of the State of Delaware, having its principal place of business at 5400
Limestone Road, Wilmington, Delaware 19808, referred to as lessee.
In consideration of the mutual covenants contained in this lease agreement, the parties
agree as follows:
SECTION ONE
DESCRIPTION OF PREMISES
Lessor leases to lessee the premises, with the 15,150 square feet of improvements thereon
erected, located at 801 Belvedere Street, Carlisle, Pennsylvania 17013, and described more
particularly as follows:
ALL that certain lot of ground, with the building and improvements erected
thereon, located on the South side of Walnut Bottom Road in the Third Ward of the
Borough of Carlisle, Cumberland County, Pennsylvania, more particularly bounded
and described as follows:
BEGINNING at a point on the South side of the Walnut Bottom Road, which
point is 415 feet Southwest of the line dividing the property now or formerly of Roy
H. Wenger, et ux., of which this lot was formerly a part, and the property now or
formerly of the Homewood Church Home, measured, along the South side of the
Walnut Bottom Road; thence from said place of beginning and along the South side
of the Walnut Bottom Road, South 55 degrees 46 minutes 30 seconds West 275 feet;
thence by a curve to the left 78.54 feet to a point on the East side of Belvedere Street
extended; thence along said street, South 34 degrees 13 minutes 30 seconds East
84.49 feet; thence along the same by a curve to the left 254.20 feet to a point; thence
by the same, South 86 degrees 14 minutes 30 seconds East 50 feet to a point; thence
by other lands now or formerly of the said Roy H. Wenger, et ux., North 07 degrees
06 minutes East 269.42 feet to a point; thence by the same, North 34 degrees 13
minutes 30 seconds West 183.73 feet to the Place of Beginning, said tract containing
2.196 acres.
BEING the same premises which NDK, Inc., by Deed dated December 16,
1994, and recorded in the Office of the Recorder of Deeds in and for Cumberland
County, Pennsylvania, in Deed Book 116, Page 288, granted and conveyed unto
Susan W. Barnes, the lessor herein.
TOGETHER with all parking areas, drives, curb cuts, easements, etc.
(collectively, the "Premises ").
SECTION TWO
PERM
The term of this lease agreement is five (5) years, beginning on 4-7- I , 2007
[date of closing], and terminating on F' 3 ( , 2012.
SECTION THREE
RENT
A. The total annual rent due under this lease agreement is:
Year One: $124,230.00
Year Two: $127,956.90
Year Three: $131,795.61
Year Four: $135,749.48
Year Five: $139,821.96
B. Lessee shall pay lessor the above - specified amounts in equal monthly installments
($10,352.50 per month during Year One; $10,663.08 per month during Year Two; $10,982.97
per month during Year Three; $11,312.46 per month during Year Four; and $11,651.83 per
2
2.196 acres.
BEING the same premises which NDK, Inc., by Deed dated December 16,
1994, and recorded in the Office of the Recorder of Deeds in and for Cumberland
County, Pennsylvania, in Deed Book 116, Page 288, granted and conveyed unto
Susan W. Barnes, the lessor herein.
TOGETHER with all parking areas, drives, curb cuts, easements, etc.
(collectively, the "Premises").
SECTION TWO
TERM
The term of this lease agreement is five (5) years, beginning on 47- 1 , 2007
[date of closing], and terminating on F.- 3 ( , 2012.
A.
SECTION THRE
RENT
The total annmil rent due under this lease
Year One: $124,230.00
Year Two: $127,956.90
Year Three: $131,795.61
Year Four: $135,749.48
Year Five: $139,821.96
5
;2 iv
2 ,4-01:9
. _
6 /
--- v5 6.851s-7 RAT goT7E
S- -um
pitepetab zee; A.ffe6174
411,026,6g
ViV37,
B. Lessee shall pay lessor the above-specified amounts in equal monthly installments
($10,352.50 per month during Year One; $10,663.08 per month during Year Two; $10,982.97
per month during Year Three; $11,312.46 per month during Year Four; and $11,651.83 per
month during Year Five), in advance, beginning on 5.--.3( [ , 2007 [date of closing],
with succeeding payments due on the same day of each month thereafter during the term of the
lease agreement.
C. In addition to any other expenses to be paid by lessee as otherwise set forth herein
(it being the intention of the parties that this be a "triple -net lease" arrangement), lessee shall pay
the expenses of all real estate taxes and other governmental or municipal assessments levied
against the Premises during the term hereof (including a pro -rata share, calculated as of the date
hereof, of any such taxes or assessments for the current tax periods), all of which shall be timely
paid by lessee upon presentation of copies of invoices therefore by lessor or her agents. Lessee
may, at its own expense, pursue timely and lawful appeals or other challenges of applicable taxes
and/or assessments, and Lessor shall cooperate in the prosecution of same, upon lessee's written
request and at lessee's expense, in such manner and extent as shall be reasonably necessary and
proper.
SECTION FOUR
USE OF PREMISES
The Premises are to be used for the purposes of lessee's geosciences consulting business
and affiliated businesses, including, without limitation, construction management and
environmental remediation. Lessee shall restrict its use to such purposes, and shall not use or
permit the use of the Premises for any other purpose without the priorexpresswritten consent of
lessor, which approval shall not be unreasonably withheld.
3
SECTION FIVE
RESTRICTIONS ON USE
A. Lessee shall not use the Premises in any manner that will knowingly result in a
cancellation of any insurance policy.
B. Lessee shall not keep, use, or sell anything prohibited by any policy of fire
insurance covering the Premises, and shall comply with all requirements of the insurers
applicable to the Premises necessary to keep in force the fire and liability insurance.
SECTION SIX
WASTE, NUISANCE, OR UNLAWFUL ACTIVITY
Lessee shall not allow any excessive waste or nuisance on the Premises, or use or allow
the Premises to be used for any unlawful purpose.
SECTION SEVEN
UTILITIES AND SERVICES
Lessee shall arrange and pay for all utilities and services (whether municipal services or
otherwise) furnished to the Premises for the term of this lease agreement, including, but not
limited to, electricity, gas, water, sewer, cable, telephone service, refuse hauling, lawn mowing
and maintenance, grounds keeping, landscaping, and snow and ice removal.
SECTION EIGHT
REPAIRS AND MAINTENANCE
4
Lessee shall maintain the Premises and keep them in good repair at its expense, except
that all major structural components, including the parking lot pavement and the roof, will be
maintained in good condition by lessor. Lessor will likewise make any necessary major repairs
to the HVAC system and sewer pump. Lessee shall maintain and repair windows, doors,
skylights, sidewalks, signage, floors, ceilings, interior surfaces, wiring, plumbing, and other
nonstructural components and systems notspecified hereinabove.
SECTION NINE
DELIVERY, ACCEPTANCE, AND SURRENDER OF PREMISES
A. Lessor represents that the Premises are in fit condition for use by lessee.
Acceptance of the Premises by lessee shall be construed as recognition that the Premises are in a
good state of repair and in sanitary condition.
B. Lessee shall surrender the Premises at the end of the lease term, or any renewal of
such term, in the same condition as when lessee took possession, allowing for reasonable use and
wear, and damage by acts of God, including fires and storms. Unless directed otherwise by
lessor, before delivery lessee shall remove all business signs placed on the Premises by lessee •
and restore the portion of the Premises on which they were placed in the same condition as when
received, allowing for reasonable use and wear, and damage by.acts of God, including fires and
storms.
SECTION TEN
PARTIAL DESTRUCTION OF PREMISES
A. Partial destruction of the Premises shall not render this lease agreement void or
voidable, nor terminate it except as specifically provided in this lease agreement. If the Premises
are partially destroyed during the term of this lease agreement, lessor shall repair them when such
repairs can be made in conformity with governmental laws and regulations, within ninety (90)
days of the partial destruction. Written notice of the intention of lessor to repair shall be given to
lessee within fifteen (15) days after any partial destruction. Rent will be reduced proportionately
to the extent to which the repair operations interfere with the business conducted on the Premises
by lessee. If the repairs cannot be made within the time specified above, lessor shall have the
option to make them within a reasonable time and continue this lease agreement in effect with
proportional rent rebate to lessee as provided for in this lease agreement. If the repairs cannot be
made in ninety (90) days, and if lessor does not elect to make them within a reasonable time,
either party shall have the option to terminate this lease agreement.
B. Disputes between lessor and lessee relating to provisions of this section shall be
arbitrated. The parties shall each select an arbitrator, and the two arbitrators selected shall
together select a third arbitrator. The three arbitrators shall determine the dispute, and their
decisions shall be binding on the parties. The parties shall divide the costs of arbitration equally
between them.
SECTION ELEVEN
ENTRY ON PREMISES BY LESSOR
Lessor reserves the right to enter on the Premises at reasonable times, upon notice to
lessee, to inspect the Premises, perform required maintenance and repairs, or to make additions,
6
alterations, or modifications to any part of the building in which the Premises are located, and
lessee shall permit lessor to do so, provided, however, that lessor shall not disrupt the business
operations of lessee.
SECTION TWELVE
SIGNS, AWNINGS, AND MARQUEES INSTALLED BY LESSEE
Lessee shall not construct or place signs, awnings, marquees, or other structures
projecting from the exterior of the Premises without the prior, express, and written consent of
lessor, which approval shall not be unreasonably withheld.
SECTION THIRTEEN
NONLIABILITY OF LESSOR FOR DAMAGES
Lessor shall not be liable for third party liability or damage claims for injury to persons or
property from any cause relating to the occupancy of the Premises by lessee, including those
arising out of damages or losses occurring on sidewalks and other areas adjacent to the Premises
during the term of this lease agreement or any extension of such term. Lessee shall inderrinify
lessor from any and all third party liability, loss, or other damage claims or obligations resulting
from any injuries or losses of this nature.
SECTION FOURTEEN
LIABILITY INSURANCE
A. Lessee shall procure and maintain in force at its expense during the term of this
7
lease agreement and any extension of such term, public liability insurance with insurers and
through brokers approved by lessor. Such coverage shall be adequate to protect against liability
for damage claims through public use of or arising out of accidents occurring in or around the
Premises, as shall be reasonably satisfactory to lessor. Lessee shall obtain a written obligation
from the insurers to notify lessor in writing at least thirty (30) days prior to cancellation or refusal
to renew any policy.
B. If the insurance policies required by this section are not kept in force during the
entire term of this lease agreement or any extension of such term, lessor may procure the
necessary insurance and pay the premium therefor, and the premium shall be repaid to lessor as
an additional rent installment for the month following the date on which the premiums were paid
by lessor.
SECTION FIFTEEN
PROPERTY INSURANCE
Lessor shall carry fire and extended coverage insurance on the Premises in an amount
lessor reasonably deems sufficient to cover the improvements on the premises, the expenses of
which shall be timely paid by lessee upon presentation of copies of invoices therefore by lessor
or her agents.
SECTION SIXTEEN
ASSIGNMENT, SUBLEASE, OR LICENSE
A. Except with respect to its own affiliates, Lessee shall not assign or sublease the
Premises, or any right or privilege connected with the Premises, or allow any other person except
8
agents and employees of lessee to occupy the Premises or any part of the Premises without first
obtaining the written consent of lessor, which consent shall not be unreasonably withheld. A
consent by lessor shall not be a consent to a subsequent assignment, sublease, or occupation by
other persons.
B. An unauthorized assignment, sublease, or license to occupy by lessee shall be void
and shall terminate this lease agreement at the option of lessor.
C. The interest of lessee in this lease agreement is not assignable by operation of law
(other than to the surviving entity of a lawful merger of lessee) without the written consent of
lessor, which consent shall not be unreasonably withheld.
SECTION SEVENTEEN
BREACH
The appointment of a receiver to take possession of the assets of lessee, a general
assignment for the benefit of the creditors of lessee, any action taken or allowed to be taken by
lessee under any bankruptcy act, or the failure of lessee to comply with each and every term and
condition of this lease agreement after the expiration of any notice period shall constitute a
breach of this lease agreement. Lessee shall have thirty (30) days after receipt of written notice
from lessor of any breach to correct the conditions specified in the notice. If the corrections
cannot be made within the 30-day period, lessee shall have a reasonable time to correct the
default if action is commenced by lessee within fifteen (15) days after receipt of the notice.
SECTION EIGHTEEN
9
REMEDIESFOR BREACH
Lessor shall have the following remedies in addition to its other rights and remedies in
the event lessee breaches this lease agreement and fails to make corrections as set forth
Section Seventeen:
A. Lessor may reenter the Premises immediately and remove the property and
personnel of lessee (said property to be stored in a public warehouse or at a place selected by
lessor at the expense of lessee).
B. After reentry, lessor may terminate this lease agreement on giving thirty (30) days'
written notice of termination to lessee. Without such notice, reentry will not terminate this lease
agreement. On termination, lessor may recover from lessee all damages proximately resulting
from the breach, including, but not limited to, the cost of recovering the Premises and the balance
of the rent payments remaining due and unpaid under this lease agreement.
C. After reentering, lessor may relet the Premises or any part of the Premises for any
term without terminating this lease agreement, at such rent and on such terms as it may choose
(lessor shall make reasonable efforts to mitigate its damages by such reletting). Lessor may make
alterations and repairs to the Premises. The duties and liabilities of the parties if the Premises are
relet shall be as follows:
(1) In addition to lessee's liability to lessor for breach of this lease agreement,
lessee shall be liable for all expenses of the reletting, for the alterations and repairs made, and for
the difference between the rent received by lessor under the new lease agreement and the rent
installments that were due for the same period under this lease agreement.
(2) Lessor at its option shall have the right to apply the rent received from
10
reletting the premises (a) to reduce lessee's indebtedness to lessor under this lease agreement, not
including indebtedness for rent, (b) to expenses of the reletting and alterations and repairs made,
(c) to rent due under this lease agreement, or (d) to payment of future rent under this lease
agreement as it becomes due.
If the new lessee does not pay a rent installment promptly to lessor, and the rent
installment has been credited in advance of payment to the indebtedness of lessee other than rent,
or if rentals from the new lessee have been otherwise applied by lessor as provided for in this
section, and during any rent installment period, are less than the rent payable for the
corresponding installment period under this lease agreement, lessee shall pay lessor the
deficiency, separately for each rent installment deficiency period, and before the end of that
period. Lessor may at any time after such reletting terminate this lease agreement for the breach
on which lessor based the reentry and relet the Premises.
D. After reentry, lessor may procure the appointment of a receiver to take possession
and collect rents and profits of the business of lessee, and if necessary, to collect the rents and
profits the receiver may carry on the business of lessee and take possession of the personal
property used in the business of lessee, including inventory, trade fixtures, and furnishings and
use them in the business without compensating lessee. Proceedings for appointment of a receiver
by lessor, or the appointment of a receiver and the conduct of the business of lessee by the
receiver, shall not terminate and forfeit this lease agreement unless lessor has given written
notice of termination to lessee as provided in this lease agreement.
In the event lessor materially breaches this lease agreement, and upon lessor's failure,
after receipt of written notice of such breach from lessee, to correct such breach or initiate
11
correction thereof in substantially the same manner as provided for the correction of a breach by
lessee under Section Seventeen hereinabove, lessee, in addition to its other rights and remedies,
may terminate this lease.
SECTION NINETEEN
ATTORNEY FEES
If lessor files an action to enforce any agreement contained in this lease agreement, or for
breach of any covenant or condition, and prevails on the merits, lessee shall pay lessor reasonable
attorney fees for the services of lessor's attorney in the action, all fees to be fixed by the court. If
lessee files an action to enforce any agreement contained in this lease agreement, or for breach of
any covenant or condition, and prevails on the merits, lessor shall pay lessee reasonable attorney
fees for the services of lessee's attorney in the action, all fees to be fixed by the court.
SECTION TWENTY
CONDEMNATION
Eminent domain proceedings resulting in the condemnation of a part of the Premises, but
leaving the remaining premises usable by lessee for the purposes of its business, will not
terminate this lease agreement unless lessor, at its option, terminates this lease agreement by
giving written notice of termination to lessee. The effect of any condemnation, where the option
to terminate is not exercised, will be to terminate this lease agreement as to the portion of the
12
Premises condemned, and the lease of the remainder of the Premises shall remain intact. The
rental for the remainder of the lease term shall be reduced by the amount that the usefulness of
the Premises has been reduced for the business purposes of lessee. Lessee hereby assigns and
transfers to lessor any claim it may have to compensation for damages as a result of any
condemnation.
SECTION TWENTY-ONE
WAIVERS
Waiver by lessor of any breach of any covenant or duty of lessee under this lease is not a
waiver of a breach of any other covenant or duty of lessee, or of any subsequent breach of the
same covenant or duty.
SECTION TWENTY-TWO
GOVERNING LAW
It is agreed that this lease agreement shall be governed by, construed, and enforced in
accordance with the laws of the Commonwealth of Pennsylvania.
SECTION TWENTY-THREE
ENTIRE AGREEMENT
This lease agreement shall constitute the entire agreement between the parties as to the
subject matter hereof. Any prior understanding or representation of any kind preceding the date
of this lease agreement shall not be binding upon either party except to the extent incorporated in
13
this lease agreement.
SECTION TWENTY-FOUR
MODIFICATION OF AGREEMENT
Any modification of this lease agreement or additional obligation assumed by either party
in connection with this agreement shall be binding only if evidenced in a Writing signed by each
party or an authorized representative of each party.
SECTION TWENTY-FIVE
NOTICES
A. All notices, demands, or other writings in this lease agreement provided to be
given or made or sent, or which may be given or made or sent, by either party to the other, shall
be deemed to have been fully given or made or sent when made in writing and deposited in the
United States mail, registered and postage prepaid, and addressed to the respective addresses of
the parties set forth in the preamble hereof.
B. The address to which any notice, demand, or other writing may be given or made
or sent to any party as above provided may be changed by written notice given by such party as
above provided.
SECTION TWENTY-SIX
BINDING EFFECT
This lease agreement shall bind and inure to the benefit of the respective heirs, personal
14
representatives, successors, and assigns of the parties.
SECTION TWENTY-SEVEN
TIME OF THE ESSENCE
It is specifically declared and agreed that time is of the essence of this lease agreement.
SECTION TWENTY-EIGHT
PARAGRAPH HEADINGS
The titles to the paragraphs of this lease agreement are solely for the convenience of the
parties and shall not be used to explain, modify, simplify, or aid in the interpretation of the
provisions of this lease agreement.
SECTION TWENTY-NINE
QUIET ENJOYMENT
Lessee, provided it timely and fully pays all rents and abides by and performs all of the
terms and conditions on its part to be observed and performed, shall peaceably and quietly enjoy
the Premises pursuant to the provisions of this Lease, without disturbance by lessor or anyone
claiming under lessor.
SECTION THIRTY
SUBORDINATION
This Lease and all the rights of lessee hereunder shall be subject and subordinate to the
15
lien of any mortgage or mortgages or deeds of trust which may now or hereafter affect the real
property of which the Premises are a part, and to any renewals, modifications, consolidations,
replacements, extensions or substitutions of any such mortgage or mortgages whether or not
notice thereof has been provided to lessee.
SECTION THIRTY-ONE
OPTION TO RENEW
Lessor grants to lessee an option to renew this lease agreement for an additional term of
five (5) years after expiration of the initial term hereof, at a rental rate reflecting a commercially
reasonable increase to be mutually negotiated and agreed upon by the parties in good faith, with
all other terms and conditions of the renewal lease to be the same as those in this lease
agreement. To exercise this option to renew, lessee must give lessor written notice of intention
to do so at least ninety (90) days before this lease agreement expires.
[intentionally blank]
16
IN WITNESS WHEREOF, each party to this lease agreement has caused it to be duly
executed, intending to be legally bound hereby.
WITNESS: Lessor
ATTEST:
° •Az-a-z"
Susararnes
By: By:
Title: e Title:
C: \Office - General Documents 200718170.20.1ease.doc
17
Susan Barnes
14 E. Harmon Drive
Carlisle, PA 17013
September 4, 2009
Ms. Terry Tucker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
RE: Lease Payments
801 Belvedere Street
Carlisle, Pennsylvania
Dear Ms. Tucker:
Pursuant to your request, I am willing to grant Duffield Associates, Inc. temporary rent relief
on the referenced property. We will agree to defer $5,332 (50%) per month of the
$10,663.08.current monthly rent and to defer the annual rent escalation of 3% for the
months of October, November and December of 2009 in recognition of your current financial
situation. If this deferred rent is paid on or prior to June 30, 2010, we will not charge any
interest. If this amount is paid after June 30, 2010, we will require you to execute a note to
Susan Barnes for a period not to exceed two years at an interest rate of 3.5%.
If these terms are acceptable, please sign where indicated below and return one copy of this
letter agreement. If you have any questions concerning the enclosed, please contact me.
Very truly yours,
Susan Barnes
Landlord
ACCEPTED BY:
(Signature)
(Please Print Name & Title)
FOR: DUFFIELD ASSOCIATES, INC.
DATE:
Susan Barnes
14 E. Harmon Drive
Carlisle, PA 17015
June 30, 2010
Ms. Terry Tucker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
RE: Lease Payments
801 Belvedere Street
Carlisle, PA 17013
Dear Ms. Tucker.
Pursuant to your request, I am willing to extend the payback deadline on the temporary rent relief on the
referenced property from the original due date of June 30, 2010 to Dec. 31, 2010. The amount of rent relief
granted was $5,332 (50 %) per month of the $10,663.08 monthly rent in force at the time, for the months of
October, November and December of 2009, for a total of $15,996.00. In addition, to memorialize our oral
agreement made last September, I have agreed to defer the 3% annual rent escalation in the amount of
$319.89 per month that was due to take effect on Sept. 1, 2009, per our lease agreement, until .
Dec. 31, 2010, for a total of $5,118.24 ($319.89 x 16 months). The grand total of all deferred rent is
$21,114.24.
If this deferred rent is paid prior to Dec. 31, 2010, I will not chArge any interest. If this amount is paid after
Dec. 31, 2010, I will require you to execute a note to Susan Barnes for a period not to exceed two year at an
interest rate of 3.5 %.
If these to m.9 are acceptable, please sign where indicated below and return one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact me.
Very truly yours,
Susan Barnes
Landlord
ACCEPTED BY:
(Signature)
Teny M. Tucker, Director of Finance
FOR: Duffield Associates, Inc.
DATE:
Susan Barnes
14 E. Harmon Drive
Carlisle,, PA 17015
November 18, 2010
Ms. Terry Tucker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
RE: Lease Payments
801 Belvedere Street
Carlisle, Pennsylvania
Dear Ms. Tucker:
Pursuant to your request, I am willing to grant Duffield Associates, Inc. additional temporary rent relief
on the referenced property: We will agree to defer $2,100 per month for the period of October 2010
through March 2011 (6 months) in recognition of your current financial situation.
In addition, I will extend the deferral of the 3% increase scheduled for September 2009 of $319.89
until March 2011, and I will defer the Sept 2010 scheduled increase month for the period September
2010 through March 2011.
The table below summarizes the total rent deferral agreed to:
Deferral Granted From: To: Per Month Amount
Sept 2009 Increase Deferral Sep-09 Mar-11 $ 319.89 $ 6,077.91
50% Rent Deferral Oct-09 Dec-09 $ 5,332.00 $15,996.00
Sept 2010 Increase Deferral Sep-10 Mar-11 $ 329.49 $ 2,306.43
Partial Rent Deferral Oct-10 Mar-11 $ 2,100.00 $12,600.00
Total Deferral $36;980.34
If this deferred rent is paid on or prior to June 30,1011, we will not charge any interest. If this amount
is paid after June 30, 2011, we will require you to execute a note to Susan Barnes for a period not to
exceed two years at an interest rate of 3.5%.
If these terms are acceptable, please sign where indicated below and return one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact me.
Very truly yours,
Susan Barnes
Barnes
Landlord
ACCEPTED BY:
(Signature)
(Print Name & Title)
FOR: DUFFIELD ASSOCIATES, INC.
DATE:
Susan Barnes
4 E. Harmon Drive
Carlisle, PA 17015
April 14, 2011
Ms. Terry Tucker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
RE: Lease Payments - 801 Belvedere Street, Carlisle, Pennsylvania
Dear Ms. Tucker:
Pursuant to your request, I am willing to grant Duffield Associates, Inc. additional temporary rent
relief on the referenced property. We will agree to defer $2,100 per month for the period of April
2011 through June 2011 (3 months) in recognition of your current financial situation.
In addition, I will extend the deferral of the 3% increase scheduled for September 2009 of $319.89
until June 2011, and I will defer the Sept 2010 scheduled increase for the period September 2010
through June 2011.
The table below summarizes the total rent deferral agreed to:
Deferral Granted
Sept 2009 Increase
Deferral
50% Rent Deferral
Sept 2010 Increase
Deferral
Partial Rent Deferral
Partial Rent Deferral
Total Deferral
From: To: Per Month Amount
Sep-09 Jun-11 $ 319.89 $ 7,037.58
Oct-09 Dec-09 $ 5,332.00 $15,996.00
Sep-10 Jun-11 $ 329.49 $ 3,294.90
Oct-10 Mar-11 $ 2,100.00 $12,600.00
Apr-11 Jun-11 $ 2,100.00 $ 6,300.00
$45,228.48
If this deferred rent is paid on or prior to Dec. 31, 2011, we will not charge any interest. If this
amount is paid after Dec. 31, 2011, we will require you to execute a note to Susan Barnes for a
period not to exceed two years at an interest rate of 3.5%.
Susan Barnes
April 14,2011
Page 2
If these terms are acceptable, please sign where indicated below and return one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact me.
Very truly yours,
Susan Barnes
Landlord
ACCEPTED BY:
(Signature)
(Print Name & Title)
FOR: DUFFIELD ASSOCIATES, INC.
DATE:
Susan Barnes
4 E. Harmon Drive
Carlisle, PA 17015
April 14, 2011
Ms. Terry Tucker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
RE: Lease Payments - 801 Belvedere Street, Carlisle, Pennsylvania
Dear Ms. Tucker:
Pursuant to your request, I am willing to grant Duffield Associates, Inc. additional temporary rent
relief on the referenced property. We will agree to defer $2,100 per month for the period of April
2011 through June 2011 (3 months) in recognition of your current financial situation.
In addition, I will extend the deferral of the 3% increase scheduled for September 2009 of $319.89
until June 2011, and I will defer the Sept 2010 scheduled increase for the period September 2010
through June 2011.
The table below summarizes the total rent deferral agreed to:
Deferral Granted From: To: Per Month Amount
Sept 2009 Increase
Deferral Sep-09 Jun-II $ 319.89 $ 7,037.58
50% Rent Deferral Oct-09 Dec-09 $ 5,332.00 $15,996.00
Sept 2010 Increase
Deferral Sep-10 Jun-11 $ 329.49 $ 3,294.90
Partial Rent Deferral Oct-10 Mar-11 $ 2,100.00 $12,600.00
Partial Rent Deferral Apr-11 Jun-11 $ 2,100.00 $ 6,300.00
Total Deferral $45,228.48
If this deferred rent is paid on or prior to Dec. 31, 2011, we will not charge any interest. If this
amount is paid after Dec. 31, 2011, we will require you to execute a note to Susan Barnes for a
period not to exceed two years at an interest rate of 3.5%.
F
Susan Barnes
April 14,2011
Page 2
If these terms are acceptable, please sign where indicated below and return one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact me.
Very truly yours,
Susan Barnes
Landlord
ACCEPTED BY:
(Signature)
(Print Name & Title)
FOR: DUFFIELD ASSOCIATES, INC.
DATE:
Susan Barnes
14 E. Harmon Drive
Carlisle, PA 17015
November 18, 2010
Ms. Terry Tucker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
RE: Lease Payments
801 Belvedere Street
Carlisle, Pennsylvania
Dear Ms. Tucker:
Pursuant to your request, I am willing to grant Duffield Associates, Inc. additional temporary rent relief
on the referenced property. We will agree to defer $2,100 per month for the period of October 2010
through March 2011 (6 months) in recognition of your current financial situation.
In addition, I will extend the deferral of the 3% increase scheduled for September 2009 of $319.89
until March 2011, and I will defer the Sept 2010 scheduled increase month for the period September
2010 through March 2011.
The table below summarizes the total rent deferral agreed to:
Deferral Granted From: Tom: Per Month Amount
Sept 2009 Increase Deferral Sep -09 Mar-11 $ 319.89. $ 6,077.91
50`Yo Rent Deferral Oct -09 Dec-09 $ 5,332.00 $15,996.00
Sept 2010 Increase Deferral Sep -10 Mar -11 $ 329.49 $ 2,306.43
Partial Rent Deferral Oct -10 Mar -11 $ 2,100.00 $12,600.00
Total Deferral $36,98034
If this deferred rent is paid on or prior to June 30, 2011, we will not charge any interest. If this amount
is paid after June 30, 2011, we will require you to execute a note to Susan Barnes for a period not to
exceed two years at an interest rate of 3.5 %.
If these terms are acceptable, please sign where indicated below and return one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact me.
Very truly yours,
Susan Barnes
Landlord
ACCEPTED BY:
(Signature)
(Print Name & Title)
FOR: DUFFIELD ASSOCIATES, INC.
DATE:
Susan Barnes
14 E. Harmon Drive
Carlisle, PA 17015
June 30, 2010
Ms. Terry Tucker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
RE: Lease Payments
801 Belvedere Street
Carlisle, PA 17013
Dear Ms. Tucker.
Pursuant to your request, I am willing to extend the payback deadline on the temporary rent relief on the
referenced property from the original due date of June 30, 2010 to Dec. 31, 2010. The amount of rent relief
granted was $5,332 (50 %) per month of the $10,663.08 monthly rent in force at the time, for the months of
October, November and December of 2009, for a total of $15,996.00. In addition, to memorialize our oral
agreement made last September, I have agreed to defer the 3% annual rent escalation in the amount of
$319.89 per month that was due to take effect on Sept. 1, 2009, per our lease agreement, until .
Dec. 31, 2010, fora total of $ 5,118.24 ($319.89 x 16 months). The grand total of all deferred rent is •
$21,114.24.
If this deferred rent is paid prior to Dec. 31, 2010,, I will not charge any interest. If this amount is paid after
Dec. 31, 2010, I will require you to execute a note to Susan Barnes fora period not to exceed two year at an
interest rate of 3.5 %.
If these terms are acceptable, please sign where indicated below and return one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact me.
Very truly yours,
Susan Barnes ,
Landlord
ACCEPTED BY:
(Signature)
Terry M. Tucker,.Director of Finance
FOR: Duffield Associates, Inc.
DATE:
Susan Barnes
14 E. Harmon Drive
Carlisle, PA 17015
September 4, 2009
Ms. Terry Tucker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
RE: Lease Payments
801 Belvedere Street
Carlisle, Pennsylvania
Dear Ms. Tucker:
Pursuant to your request, I am willing to grant Duffield Associates, Inc. temporary rent relief on the
referenced property. We will agree to defer $5,332 (50%) per month of the $10,663.08 current
monthly rent and to defer the annual rent escalation of 3% for the months of October, November and
December of 2009 in recognition of your current financial situation. If this deferred rent is paid on or
prior to June 30, 2010, we will not charge any interest. If this amount is paid after June 30, 2010, we
will require you to execute a note to Susan Barnes for a period not to exceed two years at an interest
rate of 3.5 %.
If these terms are acceptable, please sign where indicated below and return one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact me.
Very truly yours, •
Susan Barnes
Landlord
ACCEPTED BY:
(Signature)
(Please Print Name & Title)
FOR: DUFFIELD ASSOCIATES, INC.
DATE:
Susan Barnes
14 E. Harmon Drive
Carlisle, PA 17015
April 14, 2011
Ms. Terry Tucker, MBA, CDA
Director of Finance
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808
RE: Lease Payments - 801 Belvedere Street, Carlisle, Pennsylvania
Dear Ms. Tucker:
Pursuant to your request, I am willing to grant Duffield Associates, Inc. additional temporary rent
relief on the referenced property. We will agree to defer $2,100 per month for the period of April
2011 through June 2011 (3 months) in recognition of your current financial situation.
In addition, I will extend the deferral of the 3% increase scheduled for September 2009 of $319.89
until June 2011, and I will defer the Sept 2010 scheduled increase for the period September 2010
through June 2011.
The table below summarizes the total rent deferral agreed to:
Deferral Granted
Sept 2009 Increase
Deferral
50% Rent Deferral
Sept 2010 Increase
From:
To:
Per Month Amount
Sep-09 Jun-11 $ 319.89 $ 7,037.58
Oct-09 Dec-09 $ 5,332.00 $15,996.00
Deferral Sep-10 Jun-11 $ 329.49 $ 3,294.90
Partial Rent Deferral Oct-10 Mar-11 $ 2,100.00 $12,600.00
Partial Rent Deferral Apr-11 Jun-11 $ 2,100.00 $ 6,300.00
Total Deferral ....i■A 1 i 41,-t3 i I 3 2%41 $45,228.48
If this deferred rent is paid on or prior to Dec. 31, 2011, we will not charge any interest. If this
amount is paid after Dec. 31, 2011, we will require you to execute a note to Susan Barnes for a
period not to exceed two years at an interest rate of 3.5%.
Susan Barnes
April 14, 2011
Page 2
If these terms are acceptable, please sign where indicated below and return one copy of this letter
agreement. If you have any questions concerning the enclosed, please contact me.
Very truly yours,
Susan Barnes
Landlord
ACCEPTED BY:
(Signature)
Ai 14 6 ke/V
(Print Name & Title)
FOR: DUFFIELD ASSOCIATES, INC.
DATE:
•••••• DUFFIELD
1.41.
lialls■ ASSOCIATES
Consultants in the Geosclenees
October 19, 2011
Susan Barnes
14 E. Harmon Drive
Carlisle, PA 17015
RE: Rent Deferrals for 801 Belvedere St.
Carlisle, PA
Duffield Associate; Inc.
5400 Limestone Road
Wilmington, DE 19B084232
Phone: 302.239.6634
Fax 302.239.8485
duffnetecim
Dear Ms. Barnes:
We are writing to request that effective immediately, we be allowed to continue to defer the
monthly rent through 8/31/12 (the termination date of our current lease) on the referenced
property at the rate itemized below, due to economic hardship. In addition, we are requesting
that you defer the rent increase that was scheduled for 9/1/2011.
Current Monthly Deferral $2,749.38
9/1/11 Scheduled 3% Increase $ 339.37
Total $3,088.75
We are proposing the following terms for repayment of the deferred rent: Interest at an annual
rate of 3.5% for deferrals through 12/31/2010 and interest at an annual rate of 3% for deferrals in
2011 and 2012. If the outstanding balance of deferred rent is paid in full on or prior to January
.15, 2013, all interest charges will be waived.
We appreciate your willingness to accommodate this request.
Very truly yours,
DUFFIELD ASSOCIATES, INC.
F frtare..927-1'
Guy F. Marcozzi, P.E., LEED AP
President
Attachments: Correspondence Relating to Rent Deferrals
Summary of Deferred Rent to Date
Printed an Recycled Stack 0
BARNES, SUSAN
SCHEDULE OF DEFERRED RENT THROUGH OCT. 2011
Date Desc. Amount
10/1/09 OCT DEFERRED LEASE 5,332.00
10/27/09 NOV 09 RENT DEFERRED 5,332.00
11/1(09 DEC 09 DEF RENT 5,332.00
7/26/10 Deferred Rent 3,518.79
10/1/10 RENT OCT 2010 2,100.00
11/1/10 RENT NOV 2010 2,749.38
11/11/10 2009 Rent Increase 959.67
11/11/10 2010 def rent inc 658.98
12/1/10 RENT Dec 2010 2,749.38
1/1/11 RENT Dec 2010 2,749.38
2/1/11 RENT FEB 2011 2,749.38
3/1/11 RENTMAR 2011 2,749.38
4/1/11 RENTAPR 2011 2,749.38
5/1/11 RENTMAY2011 2749.38
6/1/11 RENT JUNE 2011 2,749.38
7/1/11 RENT JULY 2011 2,749.38
8/1/11 RENT AUGUST 2011 2,749.38
9/1/11 RENT SEPT2011 3,088.75
10/1/11 RENT OCT 2011 3,088.75
Total 56,904.74
Jeff Barnes
From: Dave Charles
Sent: Tuesday, October 08, 2013 4:47 PM
To: Jeff Barnes
Cc: Guy Marcozzi
Subject: RE: Carlisle Office Rental
Jeff-before proceeding with mediation or any other action, would it be possible for you & me to meet next week
to discuss?
am away tomorrow afternoon through the end of this week @ ASFE and am teaching Tues nights. Maybe we
could meet in Lancaster on Wed afternoon, Thurs or Fri next week?
Please let me know if you are willing and what might work for you
Thanks, Dave
From: Jeff Barnes
Sent: Tuesday, October 08, 2013 3:38 PM
To: Dave Charles
Cc: Guy Marcozzi
Subject: RE: Carlisle Office Rental
Dave,
In the absence of an agreement as outlined in my correspondence of September 12th, the October rent
remains at $12,361.43 per month. Accordingly, the payment received for October of $4,484.00 is
accepted solely as a partial payment of October's rent for the reasons indicated below:
We have no "mutually satisfactory resolution" of the deferred rent issue. As recently as your e-
mail of October 4th, you continue to refuse to address the outstanding balance owed.
As evidenced by the attached photographs taken 10-06-13, DAI did not completely vacate the
portions of the building that DAI supposedly no longer desires to lease from us.
DAI is occupying 600SF of space not offered by the lessor for the above noted monthly rent
without execution of a new month-to-month lease.
DAI has failed to indicate in writing its intent relative to a month-to-month lease or one-year
lease.
The terms of a new lease agreement have not yet been negotiated due to DAI' s failure to first,
indicate its intent regarding lease duration terms. Unless and until a new lease is negotiated, it
remains our position that rent in the amount of $12,361.43 continues to be owed monthly.
I have indicated to Lee James that I would be willing to enter into non-binding mediation with Lee
serving as the mediator. However, my willingness to attempt to mediate matters, is conditioned upon
DAI also agreeing thereto in the near future.
Should this matter continue to remain unresolved after November 22, 2013, we will have no alternative
other than to seek legal counsel and pursue whatever action is recommended.
EXHIBIT
From: Dave Charles
Sent: Friday, October 04, 2013 5:13 PM
To: Jeff Barnes
Cc: Guy Marcozz
Subject: RE: Carlisle Office Rental
Jeff-
Unfortunately, the deferred rent issue is a little more complicated than characterized below when viewed in the
context of other ssues. Additionally unfortunate, is that DAI is not in a position to make a payment of $127.6k
at this time. We would like to discuss the factors related to a rnutuafly satisfactory resolution of this matter.
As we have stated previouduDA|cansimplyno|ongerafford to continue to make the rental payments of the
amount made in the past. As you are aware, DAt has recently consoJidated the space occupied by DAJ and CGCG
in the Carlisle office, in order to reduce the square footage occupied by our personnel consistent to our prior
dialog. Effective October 1, 2013, we are expecting that our rent will now be $4,484/month, commensurate
with the reduction is area, as discussed previously.
Again, we are willing to and would prefer to stay in the portion of the space we now occupy. If we cannot come
to an agreement, we will have no other choice but to relocate.
Dave
From: )eff Barnes
Sent: Thursday September 12, 2013 4:39 PM
To: Dave Charles
Subject: Re: Carlisle Office Rental
Dave,
The deferrecl rent issue is not compticated, Commencing in 2009 DAt requested temporary rent relief and has
repeatedly promised to pay interest if the deferred rent was not paid by dates specified in the deferred rent
agreements executed by Susan Barnes and DAt. Unfortunately, DAt's "temporary" rent retief requests have
continued for the past 4 years without any attempt being made by DAI to pay the amount due. DA|'srepeated
promises to pay us the deferred rent at some future date with interest are no longer acceptable. Accordingly,
any agreement regarding the potential amendment of the area being leased by DAI will require a resolution of
the deferred rent at the same time. We will not agree to terms to reduce the square footage being leased by
OA| unless a satisfactory resolution is also reached as to the deferred rent.
As you are aware, we agreed to defer rent for the pas 4 years in good faith and as a gesture of goodwill to
DAi The total amount of deferred rent due as of August 31, 2013, exclusive of accrued interest, artd exclusive of
annual escalators beyond S-01-l3 per our 8-31'U7 Lease Agreement, is$127,6O6. As evidenced below, white we
are willing to demonstrate our continued good faith by renegotiating the terms of the square footage being
leased by DAt, it wiJl likewise be necessary for DAt to demonstrate itsgood faith by condusively addressing the
deferred rent issue.
2
To this end, we are willing to offer several payment proposals for your consideration which are consistent with
the series of letters and agreements executed between us with regard to payment of the deferred rent, the
most recent ofwhich is dated October 19, 2011, and is attached. However, decisive action in this regard is now
required, irrespective of whether or not DAI elects to coritinue renting space at 801 Belvedere Street. We are
also willing to offer you several options to consider regarding future leasing of a reduced amount of space at this
location per your request.
These proposed terms and conditions options are as follows:
FINANCIAL OBLIGATIONS — DEFERRED RENT
Proposal #1 1.)-7���
DAt will pay the full amount af deferred rent due of auofAxtsrst-31,2O13)bv October 2,
2013.
We will waive alt, interest on the deferred rent (3.5% in 3009 - 2010; 3.0% in 2011 — 2013).
We will waive the annual rent escalator (3.0%) in the 6th (9/01/12-8/31/13) and 7th (9/01/13-8/31/14)
years of the lease.
la l
DAI will make monthly payments beginning October 1, 2013 for a 2-year term completed September
2015. Proposal #2
The paymenttermswillbe documented bya Note.
The amount due will inctude alt interest ictentified in Proposal #1 above.
The amount due will include the annual rent escalator identified in Proposal #1 above.
The amount due will be amortized into equal monthly payments at 3% interest.
RENTAL SPACE
Proposal #1
Beginning October 1, 2013 DAI/CGCG to lease 7,790 SF (7,1905F proposed I' 600SF additional
requested)
Monthly rent =$4,478+S0% triple net expenses.
Term: month to month.
30 day notice oftermination by eitherparty,otherm/isethe|eaaexvi||be,enowedmonthtomont6
thereafter.
A new lease agreement will be executed.
The current lease terms will remain in effect until DA| totally vacates existing space not included in the
amended lease agreement.
Proposal #2
Beginning October 1, 2013 DAVCGCG to lease 7,1g06F per original proposal.
Monthly rent = $4,478 + 45% triple net expenses.
Term: 1 year lease.
90 day notice oftermination by either party, otherwise the lease will be renewed on a six month basis
thereafter.
A new lease agreement will be executed.
The current lease terms will remain in effect until DAI totally vacates existing space not included in the
new lease agreement.
3
5. Jeffrey Barnes, P.E.
Senior Consultant
���z���zM�
���^^ � ��~�~�'
ASSOC[NITS
soiL & theEhuirormwnt
Duffield Associates, Inc.
801 Belvedere St.
Carlisle, PA 17013
P (717) 245.9100
F (717) 245.9656
From: Dave Charles
Sent: Friday September 06 2013 4:54 PM
To: Jeff Barnes
Subject: Carlisle Office Rental
Jeff—Based on recent discussions, you are aware that Duffield ates is not in a position to provide full
payment for the deferred rent at this time. If you would like to meet to discuss this issue further, I am willing to
do so.
The deferred rent issue is more complicated than the immediate issue, (rent and facility space), which we
urgently need to resolve this month because we simply cannot afford to continue to pay rent for space we are
not using....we are losing money with each day.
We do have a time constraint regarding the existing space. As we indicated Duffield Associates does not wish to
remain in the full space and pay the full rent. We are willing to and would prefer to stay in a portion of the
space we now occupy and have presented a proposal for that scenario. We would like reach an agreement
• immediately and move to that situation. If we cannot come to an agreement promptly, we will have no other
choice but to relocate.
Once again, I would ask that you to accept the revised terms we have proposed.
Thanks, Dave
Please considerthe environment before printing this E-Mail
4
DUFFIELD
ASSOCIATES
Consultants in the Geosciences
December 20, 2013 2cacj
Via Certified Mail
Mrs. Susan W. Barnes
14 East Harmon Drive
Carlisle, PA 17015-
RE: Lease of 801 Belvedere Street
Carlisle, Pennsylvania
Dear Mrs. Barnes:
Duffield Associates, Inc.
5400 Limestone Road
Wilmington, DE 19808-1232
Phone: 302.239.6634
Fax: 302.239.8485
duffnet.com
This letter is written to notify you that Duffield Associates, Inc. will terminate our lease of the
property at 801 Belvedere Street as of January 30, 2014. We will coordinate with you prior to
that date on a time for a final building walkthrough and relinquishing of keys for the building.
Very truly yours,
DUFFIELD ASSOCIATES, INC.
Guy F. Mthcozzi, P.E., E BD+C
President
WORD \LEASE TERMINATION_801 BELVEDERE.COR
CERTIFIED MAIL RECEIPT NO. 7013 1090 0000 8061 9249
EXHIBIT
sock C:
t007021211}
CERTIFICATE OF SERVICE
I hereby certify that on this _3 day of April, 2014 a copy of the foregoing Amended
Complaint was served on the defendants in the manner indicated below:
foothol8oh)
FIRST-CLASS MAIL
POSTAGE PREPAID THEREON
ADDRESSED AS FOLLOWS:
ALLEN B. DUBROFF, ESQ. & ASSOCIATES
Allen D. Dubroff, Esq.
John F. Thomas, Esq.
1500 JFK Blvd, Suite 1030
Philadelphia, PA 19102
10
KelliAnn Winkowski
Paralegal for Alan C. Green, Esq.
&etc-) tv;e
ALLEN B. DUBROFF, ESQ. &
ASSOCIATES, LLC
By: Allen B. Dubroff, Esq. (04686)
By: John F. Thomas, Jr., Esq. (75591)
1500 JFK Boulevard, Suite 1030
Philadelphia, PA 19102
(215) 568-2700
SUSAN W. BARNES
Plaintiff,
vx
CUMBEf;LAD COUNTY
PENNSYLVANIA
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
v. CIVIL ACTION
DUFFIELD ASSOCIATES, INC. No. 14-864 (CIVIL)
Defendant.
NOTICE TO DEFEND
You have been sued in Court. If you wish to defend against the claim set forth in the
following pages, you must take action within (20) days after this Complaint and Notice
are served, by entering a written appearance personally or by an attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you.
You are warned that if you fail to do so, the case may proceed without you and a
judgment may be entered against you by the Court without further notice for any money
claimed or any other claim or relief requested by the plaintiff. You may lose money or
property rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 S. Bedford Street
Carlisle, PA 17013
(800) 990-9108
(717) 249-3166
ALLEN B. DUBROFF, ESQ. &
ASSOCIATES, LLC
By: Allen B. Dubroff, Esq. (04686)
By: John F. Thomas, Jr., Esq. (75591)
1500 JFK Boulevard, Suite 1030
Philadelphia, PA 19102
(215) 568-2700
SUSAN W. BARNES COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiff,
v.
DUFFIELD ASSOCIATES, INC.
Defendant.
CIVIL ACTION
No. 14-864 (CIVIL)
ANSWER, NEW MATTER, AND COUNTERCLAIM TO
AMENDED COMPLAINT
NOW COMES Defendant Duffield Associates, Inc. ("Defendant" or "Duffield"),
by and through the undersigned counsel, Allen B. Dubroff, Esq. & Associates, LLC, and
hereby Answer's Plaintiffs Amended Complaint, as follows:
1. Admitted, upon information and belief.
2. Admitted.
3. Admitted, upon information and belief.
4. Denied as written. The document attached to the Amended Complaint
speaks for itself, and any characterization thereof is specifically denied.
5. Denied as written. The document attached to the Amended Complaint
speaks for itself, and any characterization thereof is specifically denied.
6. Denied as written. The document attached to the Amended Complaint
speaks for itself, and any characterization thereof is specifically denied.
7. Denied as written. The document attached to the Amended Complaint
speaks for itself, and any characterization thereof is specifically denied.
8. Denied as written. The document attached to the Amended Complaint
speaks for itself, and any characterization thereof is specifically denied.
9. Admitted in part, denied in part. Admitted only that the stated term of the
attached lease agreement expired on August 31, 2012, and that Duffield has paid rentals
to Plaintiff. The balance of averments are specifically denied and strict proof thereof is
demanded at trial.
10. Denied. The averments in this paragraph are specifically denied, and strict
proof thereof is demanded at trial.
11. Denied as written. The document attached to the Amended Complaint
speaks for itself, and any characterization thereof is specifically denied. By way of
further response, the "option" paragraph referred to in the Lease, being Section Thirty -
One of Exhibit "A" to the Complaint, specifically requires that "lessee must give written
notice of intention" to exercise the option "at least ninety (90) days before this lease
agreement expires." (Exhibit "A" to Amended Complaint at p. 16, emphasis added) As
Duffield never gave any notice of any intention to renew or extend, being mandatory
under the referenced paragraph, therefore, no additional extension or lease term came into
effect or being. The balance of averments in this Paragraph are specifically denied and
strict proof thereof is demanded at trial.
12. Denied. The averments in this Paragraph constitute conclusions of law to
which no response is required. To the extent this Paragraph avers facts, such facts are
specifically denied and strict proof thereof is demanded. By way of further response, per
Defendant's Answer to Paragraph 11, the "option" to renew was specifically that of
Duffield's, and not Plaintiff, and no written notice of intent to renew was ever given by
Duffield, as is mandatory under the referenced lease language.
13. Denied. The averments in this Paragraph are specifically denied, and
strict proof thereof is demanded at trial.
14. Denied as written. The documents attached to the Amended Complaint as
Exhibit "B" speak for themselves, and any characterization thereof is specifically denied.
15. Admitted in part, Denied in part. Admitted only that the lease term
expired on August 31, 2012. The balance of averments in this Paragraph are specifically
denied, and strict proof thereof is demanded at trial. It is specifically denied that the
amounts claimed due by Plaintiff are owed.
16. Denied. It is specifically denied that "Duffield unilaterally decided to
reformulate the terms of the lease agreement." Indeed, Plaintiff's own Amended
Complaint admits, at Paragraphs 11 and 15, that any lease, by its own terms, expired on
August 31, 2012 and that a renewal option was never exercised by Duffield, and the
correspondence attached as Exhibit "C" to the Amended Complaint refers exclusively to
a month-to-month rental. By way of further response, the documents attached as Exhibit
"C" to the Amended Complaint speak for themselves, and any characterization of them
by Plaintiff is specifically denied. The balance of averments in this Paragraph are
specifically denied, and strict proof thereof is demanded at trial. It is specifically denied
that the amounts claimed due by Plaintiff are owed.
17. Admitted in part, denied in part. Admitted only that Duffield gave notice
of termination of a month-to-month occupancy as set forth in Exhibit "D." The balance
of averments in this Paragraph are specifically denied, and strict proof thereof is
demanded at trial. It is specifically denied that the amounts claimed due by Plaintiff are
owed.
18. Denied. This Paragraph asserts conclusions of law to which no response
is required. By way of further Answer, Plaintiff has no basis for any "annual escalation"
of rentals, nor does Plaintiff have any basis for extending any purported lease past the
original 5 -year term which ended in August, 2012, as any option to extend was, by its
terms, exclusively that of the tenant, and was never exercised by Duffield in writing, as
specifically set forth in the Answer to Paragraph 11, supra. The balance of averments in
this Paragraph are specifically denied, and strict proof thereof is demanded at trial. It is
specifically denied that the amounts claimed due by Plaintiff are owed.
COUNT I
19. Answering Defendant hereby incorporates its responses to the preceding
paragraphs, as if set forth fully herein.
20. Denied. This Paragraph asserts conclusions of law to which no response
is required.
21. Denied. This Paragraph asserts conclusions of law to which no response
is required.
22. Denied. The allegations of this paragraph are specifically denied, and
strict proof thereof is demanded at trial.
23. Denied. This Paragraph asserts conclusions of law to which no response
is required. By way of further response, Defendant denies the sums alleged owed to
Plaintiff, and further, as the purported lease by its own terms ceased on August 31, 2012,
Defendant denies any "expectation damages" as a result of any "termination" or any
forward-looking damages, as the alleged renewal option was never exercised by the
Defendant according to its own terms. The balance of the allegations of this paragraph
are specifically denied, and strict proof thereof is demanded at trial.
24. Denied. This Paragraph asserts conclusions of law to which no response
is required. By way of further answer, the purported lease by its own terms ceased on
August 31, 2012, and is no further force and effect.
25. Denied. It is specifically denied that there is any contractual provision in
place between the parties providing for liquidated damages, and strict proof thereof is
demanded at trial. The balance of the allegations of this paragraph are specifically
denied, and strict proof thereof is demanded at trial.
26. Denied. The allegations of this paragraph are specifically denied, and
strict proof thereof is demanded at trial.
27. Denied. The allegations of this paragraph are specifically denied, and
strict proof thereof is demanded at trial. By way of further response, the purported lease
agreement, by its own terms, terminated on August 31, 2012, and is of no further force or
effect.
28. Denied. This Paragraph asserts conclusions of law to which no response
is required.
29. Denied. This Paragraph asserts conclusions of law to which no response
is required.
WHEREFORE, Answering Defendant prays this honorable Court enter judgment
in its favor and against Plaintiff, dismissing the Complaint and awarding Defendant its
damages on the Counterclaim below.
COUNT II
30. Answering Defendant hereby incorporates its responses to the preceding
paragraphs, as if set forth fully herein.
31. Denied. This Paragraph asserts conclusions of law to which no response
is required.
32. Denied. This Paragraph asserts conclusions of law to which no response
is required.
33. Denied. This Paragraph asserts conclusions of law to which no response
is required.
34. Denied. This Paragraph asserts conclusions of law to which no response
is required.
WHEREFORE, Answering Defendant prays this honorable Court enter judgment
in its favor and against Plaintiff, dismissing the Complaint and awarding Defendant its
damages on the Counterclaim below.
NEW MATTER
AFFIRMATIVE DEFENSES
35. Plaintiff's Complaint fails to state a claim upon which relief may be
granted.
36. Plaintiff's Claims are barred by the doctrines of laches, estoppel, equitable
estoppel, ratification, unconscionability, unclean hands, and acquiescence.
37. Plaintiffs Claims are barred by accord and satisfaction.
38. Plaintiffs claims are barred by novation.
39. Plaintiffs claims are barred by a failure of consideration, and/or Plaintiff's
own breaches of contract.
40. Defendants are entitled to a set-off of amounts due to Defendants from
Plaintiffs.
41. Plaintiff's claims are barred by the failure of a condition precedent.
42. Plaintiffs claims are barred by the Plaintiffs own failure to mitigate
damages.
43. Plaintiffs claims are barred, in whole or in part, by the doctrines of set-
off, mistake, license, payment, and waiver.
NEW MATTER
COUNTERCLAIM
44. Answering Defendant hereby incorporates its responses to the preceding
paragraphs, as if set forth fully herein.
45. Plaintiff Barnes is the spouse of S. Jeffrey Barnes, who is a civil engineer
and the former principal of a company known as Cumberland Geotechnical Consultants,
Inc. ("CGCI")
46. In 2007, Defendant Duffield acquired the assets of CGCI, including the
business name, which operated out of the premises at issue in the above suit.
47. An account for utilities in the name of CGCI had previously been
established with PPL and Direct Energy.
48. Following departure of Duffield from the premises, Plaintiff has continued
to use the account in the name of CGCI, which belongs to Duffield, for utility to the
premises.
49. Duffield has attempted to transfer its Direct Energy contract to another
account, but Plaintiff has blocked the transfer and refuses to relinquish the CGCI account
to Duffield or terminate it.
50. Barnes is, by her actions, intentionally interfering with Duffield's
contractual rights with Direct Energy and/or PPL.
51. Duffield is under contract with Direct Energy, a third -party energy supply
company, and faces penalties for failing to transfer its contract, and/or penalties for
breach of contract with Direct Energy.
52. Plaintiff's actions constitute intentional interference with contractual
relations.
53. Duffield is being damaged by Barnes' actions, in that Duffield is incurring
additional charges as a result of being unable to transfer its utility account, and is
expected to incur additional costs in the future unless the accounts are transferred.
WHEREFORE, Defendant Duffield demands judgment in its favor and against
Plaintiff, in an amount to be determined at trial.
ALLEN B. DUBROFF, ESQ. & ASSOCIATES, LLC
BY:
DATE:April 30, 2014
.4 n B. Dubroff, Esq. (04686)
Jo F. Thomas, Jr., Esq. (75591)
VERIFICATION
I, Christopher C. Whallon, Esq., Corporate Counsel to defendant Duffield
Associates, Inc., and being authorized to make this Verification on its behalf, do hereby
verify that the statements made in the foregoing pleading are true and correct to the best
of my knowledge and belief. I understand that false statements made herein are subject
to the penalties of 18 PA. C.S, Subsection 4904, relating to unsworn falsification to
authorities.
Date: 4/29/14
Christopher C. Whallon, Esq.
CERI'li 1CATE OF SERVICE
I, John F. Thomas, Jr., hereby certify that I have this 30th day of April, 2014
served a true and correct copy of the foregoing Answer, New Matter and
Counterclaim, via United States first class mail, postage prepaid, addressed as follows:
Alan C. Green, Esq.
Rees Griffiths, Esq.
CGI Law Firm
135 N. George St.
York, PA 17401
Attorney for Plaintiff
e
L
rQ ¢
Y 20 pi; I: 1
P'Uf BF RL ,
PE�rNtS (L 4'A P� qr` f y
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY PENNSYLVANIA
SUSAN W. BARNES,
Plaintiff, Docket No. 14-864
versus
DUFFIELD ASSOCIATES, INC.,
Defendants.
CIVIL ACTION - LAW
NOTICE TO PLEAD
To: Duffield Associates, Inc.
c/o Allen D. Dubroff, Esq.
John F. Thomas, Jr., Esq.
Allen B. Dubroff, Esq., & Assoc., LLC
1500 JFK Blvd, Suite 1030
Philadelphia, PA 19102
You are hereby notified you must file a written response to Plaintiffs Answer and New
Matter to Defendant's New Matter and Counterclaim within twenty (20) days from service or
judgment may be entered against you.
Date: May nA o14 CGA Law Firm,
14,
Alan C. Green, Esquire
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY PENNSYLVANIA
SUSAN W. BARNES,
Plaintiff,
versus
DUFFIELD ASSOCIATES, INC.,
Defendants.
Docket No. 14-864
CIVIL ACTION - LAW
ANSWER AND NEW MATTER TO DEFENDANT'S NEW MATTER AND
COUNTERCLAIM
AND NOW this /V -I1 day of May, 2014 comes Plaintiff Susan W. Barnes, by and
through her attorneys, CGA Law Firm by Alan C. Green, Esquire to file the herein Answer and
New Matter to Defendant's New Matter and Counterclaim and, in support thereof, submits the
following:
ANSWER TO NEW MATTER
35. Denied. This Paragraph asserts conclusions of law for which no response is
required.
36. Denied. This Paragraph asserts conclusions of law for which no response is
required.
37. Denied. This Paragraph asserts conclusions of law for which no response is
required.
38. Denied. This Paragraph asserts conclusions of law for which no response is
required.
(00735855/11
2
39. Denied. This Paragraph asserts conclusions of law for which no response is
required.
40. Denied. This Paragraph asserts conclusions of law for which no response is
required.
41. Denied. This Paragraph asserts conclusions of law for which no response is
required.
42. Denied. This Paragraph asserts conclusions of law for which no response is
required.
43. Denied. This Paragraph asserts conclusions of law for which no response is
required.
ANSWER TO COUNTERCLAIM
44. Plaintiff incorporates each of the preceding paragraphs by reference as though set
forth at length herein.
45. Admitted.
46. Denied as stated. By way of further response, in 2007, Duffield acquired all
outstanding shares of CGCI from non-party S. Jeffrey Barnes and thereby came to be the sole
shareholder of CGCI (hereinafter the "Stock Sale Agreement"). Plaintiff is without knowledge
sufficient to form an opinion as to whether, by subsequent transaction(s) to which Plaintiff was not a
party, Duffield came to be direct owner of all CGCI's assets and, therefore, denies this allegation.
47. Admitted in part and denied in part. It is admitted that, prior to the Stock Sale
Agreement, CGCI had previously established an account with PPL for electric utilities in the name
of CGCI. The remaining averments of fact contained in this paragraph are denied. Plaintiff
specifically denies that CGCI established any account with Direct Energy prior to the acquisition of
all outstanding CGCI stock from non-party S. Jeffrey Barnes.
(00735855/0}
3
48. Denied as stated. Just prior to the departure of Duffield from the Premises, Plaintiff
became aware that an account for the supply of electricity had been established with Direct Energy
by Duffield. Plaintiff had no knowledge of this account because Duffield did not properly request
Plaintiff's permission (as building owner) to switch suppliers of electricity to the Premises from
PPL to Direct Energy. Just prior to the departure of Duffield from the Premises, Plaintiff became
aware that a PPL account for the transmission of electrical services to the Premises in the name of
CGCI, which Duffield had previously assumed as part of its Stock Sale Agreement and pursuant to
the terms of the "triple net" provisions of the Lease Agreement, had not been transferred or
discontinued. Duffield's departure has saddled Plaintiff with the account on which she has made
payments thereon for the delivery of electrical services in protest.
49. Denied. Plaintiff has taken no action on the PPL account other than to make
payments under protest, which is in the name of CGCI—a wholly owned subsidiary of Duffield—
and has not taken any steps to affirmatively block the transfer of the account by Duffield, which
Plaintiff properly views as being the responsibility of Duffield.
50. Denied. This Paragraph asserts conclusions of law for which no response is
required.
51. Denied. Plaintiff is without information adequate to form an opinion as to the truth
of the allegations contained in Paragraph 51 which concern contracts between Duffield and Direct
Energy, of which Plaintiff is not a party and has no specific knowledge.
52. Denied. This Paragraph asserts conclusions of law for which no response is
required.
53. Denied. This Paragraph asserts conclusions of law for which no response is
required.
[00735855/1)
4
NEW MATTER TO DEFENDANT'S COUNTERCLAIM
54. Plaintiff incorporates each of the preceding paragraphs by reference as though set
forth at length herein.
55. In 2007, Duffield acquired all of the outstanding shares of CGCI pursuant to the
Stock Sale Agreement.
56. Also in 2007, and as set forth more fully in Paragraph 8 of Plaintiff's Amended
Complaint, Duffield assumed responsibility for all utilities on the Premises pursuant to the terms of
the Lease Agreement.
57. Even though Duffield continued to use, and assume responsibilities for payment on,
the PPL account in CGCI's name, Duffield never changed the name on this account to reflect a
change in the structure of its business or tenancy of the Premises.
58. Upon information and belief, Duffield did not change the name on the PPL account
because it would result in it being required to make an additional security deposit to PPL.
59. Upon information and belief, Duffield remains the sole shareholder of CGCI and is
the only party with any authority to exercise control over the assets of CGCI including its name and
utility accounts.
60. Plaintiff has no current association or ownership interest in CGCI.
61. S. Jeffrey Barnes is not a party to this action and, nonetheless, has no current
association or ownership interest in CGCI.
62. Duffield's failure to change the name on the PPL account, coupled with its
underlying breach of the Lease Agreement, has thrust responsibility for making payment on the
account to Plaintiff as Landlord, for which Plaintiff suffers and continues to suffer damages
consequential to Duffield's breach of its lease in the form of payments made on this account.
(00735855/1)
5
63. Plaintiff is entitled to a set-off of amounts due to Defendant, if any, against amounts
due to her from Defendant.
64. Defendant's counterclaim fails to state a cause of action against Plaintiff Susan
Barnes upon which relief may be granted.
65. Defendant's counterclaim is barred by the doctrines of laches, estoppel, failure of
consideration, ratification, unclean hands, and acquiescence.
66. Defendants counterclaim is barred by Defendant's failure to mitigate damages.
WHEREFORE, Plaintiff requests this Honorable Court dismiss Defendant's Counterclaim
with prejudice.
Dated:
[00735855/1)
6
Respectfully submitted,
Alan C. Green (Pa. ID 314432)
Rees Griffiths (Pa. ID 21896 )
CGA LAW FIRM
135 North George St.
York, PA 17401
P: 717.848.4900
F: 717.843.9039
Attorneys for Plaintiff
ATTORNEY VERIFICATION
I, Alan C. Green, counsel for the Plaintiff hereby affirm that the facts contained in the
foregoing Answer and New Matter to Defendant's New Matter and Counterclaim are true and
correct to the best of my knowledge. I further verify that I am making this verification on behalf
of Plaintiff and that the information contained in the Answer and New Matter to Defendant's
New Matter and Counterclaim is within my scope of knowledge and that the statements made are
true and correct to my knowledge, information and belief This statement is made subject to the
penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities.
CGA LAW FIRM
Alan C Green (Pa. ID 314432)
135 North George St.
York, PA 17401
P: 717.848.4900
F: 717.843.9039
Attorneys for Plaintiff
(00735855/11
CERTIFICATE OF SERVICE
I hereby certify that on this / day of May, 2014 a copy of the foregoing Answer
and New Matter to Defendant's New Matter and Counterclaim was served on the defendants in
the manner indicated below:
FIRST-CLASS MAIL
POSTAGE PREPAID THEREON
ADDRESSED AS FOLLOWS:
Allen D. Dubroff, Esq.
John F. Thomas, Jr., Esq.
Allen B. Dubroff, Esq., & Assoc., LLC
1500 JFK Blvd, Suite 1030
Philadelphia, PA 19102
Shane M. Rohrbaugh, Paralegal for
Alan C. Green, Esq.
{00735855/4)
ALLEN B. DUBROFF, ESQ. &
ASSOCIATES, LLC
By: Allen B. Dubroff, Esq. (04686)
By: John F. Thomas, Jr., Esq. (75591)
1500 JFK Boulevard, Suite 1030
Philadelphia, PA 19102
(215) 568-2700
SUSAN W. BARNES
Plaintiff,
flJrrH
20111
c1 9 Pti 2: ' e
C'UPIDER
PEI-14L
UA N r,r,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
v. CIVIL ACTION
DUFFIELD ASSOCIATES, INC. No. 14-864 (CIVIL)
Defendant.
DEFENDANT'S ANSWER TO PLAINTIFF'S NEW MATTER TO
DEFENDANT'S COUNTERCLAIM
NOW COMES Defendant Duffield Associates, Inc. ("Defendant" or "Duffield"),
by and through the undersigned counsel, Allen B. Dubroff, Esq. & Associates, LLC, and
hereby Answers the New Matter of Plaintiff to Defendants' Counterclaim as follows:
54. No response required.
55. Admitted.
56. Admitted.
57. Denied as written. As admitted by Plaintiff in Paragraph 55, supra,
Defendant had acquired the name of the business along with its other assets in connection
with the purchase in the Stock Sale Agreement. As such, all rights in the name CGCI
belong to Duffield. The balance of averments in this Paragraph are specifically denied
and strict proof thereof is demanded.
58. Denied as written. As admitted by Plaintiff in Paragraph 55, supra,
Defendant had acquired the name of the business along with its other assets in connection
with the purchase in the Stock Sale Agreement. As such, all rights in the name CGCI
belong to Duffield, and there is and was no need to change the name on the account. The
balance of averments in this Paragraph are specifically denied and strict proof thereof is
demanded.
59. Admitted.
60. Admitted.
61. Admitted.
62. Denied. The allegations in this Paragraph are specifically denied and
strict proof thereof is demanded at trial. By way of further response, Duffield has
attempted, on several occasions, to change and transfer the account to a new premises.
However, Plaintiff and/or her husband, S. Jeffrey Barnes, have interfered with Duffield's
attempts to change over and transfer the account, and have on no less than two attempts
refused the utility's service calls to change over the account, causing CGCI, Duffield's
subsidiary, to continue to incur liability for power service to the property which it no
longer occupies. Despite having surrendered possession of the premises to Plaintiff,
Plaintiff and/or her husband have, in fact, prevented the account changeover, and are
causing Duffield to be in breach of its agreement with Direct Energy for failure to
transfer the account.
63. Denied as a conclusion of law as to which no response is required. To the
extent this Paragraph avers facts, such facts are specifically denied and strict proof
thereof is demanded at trial.
64. Denied as a conclusion of law as to which no response is required. To the
extent this Paragraph avers facts, such facts are specifically denied and strict proof
thereof is demanded at trial.
65. Denied as a conclusion of law as to which no response is required. To the
extent this Paragraph avers facts, such facts are specifically denied and strict proof
thereof is demanded at trial.
66. Denied as a conclusion of law as to which no response is required. To the
extent this Paragraph avers facts, such facts are specifically denied and strict proof
thereof is demanded at trial.
WHEREFORE, Defendant Duffield demands judgment in its favor and against
Plaintiff, in an amount to be determined at trial.
ALLEN B. DUBROFF, ESQ. & ASSOCIATES, LLC
BY:
DATE:June 5, 2014
Aden B. Dusroff, Esq. (04686)
J. F. Thomas, Jr., Esq. (75591)
VERIFICATION
I, Christopher Whallon, Esq., in-house counsel to defendant Duffield Associates,
Inc., and being authorized to make this Verification on its behalf, do hereby verify that
the statements made in the foregoing pleading are true and correct to the best of my
knowledge and belief. I understand that false statements made herein are subject to the
penalties of 18 PA. C.S, Subsection 4904, relating to unsworn falsification to authorities.
Date: 6/5/14
Christopher Whal on, Esq.
CERIIF 1CATE OF SERVICE
I, John F. Thomas, Jr., hereby certify that I have this 6th day of June, 2014 served
a true and correct copy of the foregoing pleading via United States first class mail,
postage prepaid, addressed as follows:
Alan C. Green, Esq.
Rees Griffiths, Esq.
CGI Law Firm
135 N. George St.
York, PA 17401
Attorney for Plaintiff