HomeMy WebLinkAbout14-3147 Supreme Court-oftPennsylvania
Court of Common fleas For Prothonotary Use Only:
Civil COV6x Sleet Docket No: r
County
The irrfornaation collected on this forrrr is used solely for court administration purposes. 'Thisform does not
supplenrerit or replace thefilina curd service of pleadings or•other•papers as required b lair or rules of coaart.
Commencement of Actions
S ❑ Complaint ( Writ of Summons El Petition
❑ Transfer from Another Jurisdiction ❑ Declaration of Taking
E
Lead Plaintiff's Name: Lead Defendant's Name:
T �9LB Ca 5 r PIAA/ J quo VtAe JR
Are Mone damages reqnested? eyes ❑ No Dollar Amount Requested: ❑within arbitration limits
Y (check one) ['outside arbitration limits
Q
FIs this a Class Action Snit? ❑Yes L✓1 No Is this an MDJAppeal? ❑ Yes E lvo
A Name of Plaintiff/Appellant's Attorney: y 4/y (5 J . 5�A ( m
❑ Check !ie,e if you lia e no attorney iare a Self-Represented 111ro Se€ Li*c anf)
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 nat include Judgnrents) CIVIL APPEALS
Intentional ❑ Buyer Plaintiff Administrative Agencies
❑ Malicious Prosecution ❑ Debt Collection:Credit Card ❑ Board of Assessment
❑ Motor Vehicle ❑ Debt Collection:Other ❑ Board of Elections
❑ Nuisance ❑ Dept.of Transportation
❑ Premises Liability ❑ Statutory Appeal:Other
S ❑ Product Liability(does not include ❑ Employment Dispute:
E mass tort)
❑ Slander/Libel/Defamation Discrimination
C ❑ Other: ❑ Employment Dispute: Other ❑ Zoning Board
i
T ElOther: i
l
O/Ot
her: /
O MASS TORT itl> I
n Asbestos
N n Tobacco
❑ Toxic Tort-DES
❑ Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS '
❑ Toxic Waste
❑ Other: ❑Ejectment ❑ Common Law/Statutory Arbitration
B ❑ Eminent Domain/Condemnation ❑ Declaratory Judgment [
Ground Rent ❑ Mandamus
Landlord/Tenant Dispute ❑Non-Domestic Relations
❑ Mortgage Foreclosure:Residential Restraining Order
PROFESSIONAL LIABLITYQuo Warranto
❑ Mortgage Foreclosure:Commercial El
❑ Dental ❑ Partition ❑Replevin
❑ Legal ❑ Quiet Title ❑Other: t
❑ Medical ❑ Other:
❑ Other Professional:
Updated 11112011
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA
CIVIL DIVISION
Plaintiff(s)&Address(es)
ALBERT I. JACOBS, III, MICHELLE S.
JACOBS and SNAZZY GIRAFFE, LLC,
1617 Fox Hollow Road, Mechanicsburg,
PA 17055
Case No. Y J Civil Term
VS.
Civil Action - LAW
Defendant(s)&Address(es)
JOHN J. YANOVIAK, JR., 324 Market c
St., Rear, Lemoyne, PA 17043, DREW „?,Z, /74AR. BOBINCHECK and LANDMARKeaM M D
COMMERCIAL REALTY, INC. P �''
.20 9-ijoId Pd. r
70 q3
zel,o�/e9 a
PRAECIPE FOR WRIT OF SUMMONS "� M
TO THE PROTHONOTARY/CLERK OF SAID COURT:
Issue summons in the above case
Writ of Summons shall be issued and forwarded to Attorney/ Please Ci choice
Date: May 23, 2014
Signature of Attorney
Print Name: Dennis J. Shatto
Address: 828 Limekiln Road
New Cumberland, PA 17070
Telephone#:717-547-6384
Supreme Court ID Number: 25675
WRIT OF SUMMONS
TO: JOHN J.YANOVIAK,JR., DREW R. BOBINCHECK and LANDMARK COMMERCIAL REALTY, INC.
YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S)HAS/HAVE COMMENCED AN
ACTION AGAINST YOU. � '
Prothonotary/Clerk,Civil Division
Date:_� c3 0 b
Deputy
/03. 7S-f a/ �� J
�_ s�
Dennis J. Shatto
Pa. Attorney ID 25675
828 Limekiln Road
New Cumberland, PA 17070
Tel. 717-547-6384
Fax 717-547-6389
E-mail: dennisshatto@hotmail.com
Attorney for Plaintiff
CU'?'1E'F ?L,ti,D
FEN!�s YLVr'; 414
ALBERT I. JACOBS, III,
MICHELLE S. JACOBS and
SNAZZY GIRAFFE, LLC,
Plaintiffs
vs.
JOHN J. YANOVIAK, JR.,
DREW R. BOBINCHECK and
LANDMARK COMMERCIAL REALTY,
INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 14-3147
JURY TRIAL DEMANDED
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST
THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION
WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED,
BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND
FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE
CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO
DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE
ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY
MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF
REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR
OTHER RIGHTS IMPORTANT TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
1-800-990-9108
717-249-3166
AVISO
USTED HA SIDO DEMANDADO/A EN COURTS. Si usted desea defenderse de
las demandas que se presentan rads adelante en las siguientes
paginas, debe tomar accion dentro de los proximos veinte (20) dias
despues de la notificacio de esta Demanda y Aviso radicando
personalmente o por medio de un abogado una comparecencia escrita
y radicando en la Corte por escrito sus defensas de, y objecciones
a, las demandas presentadas aqui en contra suya. Se le advierte de
que si usted falla de tomar accion como se describe anteriormente,
el caso puede proceder sin usted y un fallo por cualquier suma de
dinero reclamada en la demanda o cualguier otra reclamacion o
remedio solicitado por el demandante puede ser dictado en contra
suya por la Corte sin mas aviso adicional. Usted puede perder
dinero o propiedad u otros derechos importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABODAGO INMEDIATAMENTE. SI
USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA.
ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR
UN ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE
QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE
OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE
CUALIFICAN.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
1-800-990-9108
717-249-3166
Dennis J. Shatto, Esquire
Pa. Attorney ID 25675
828 Limekiln Road
New Cumberland, PA 17070
Tel. 717-547-6384
Fax 717-547-6389
E-mail: den.nisshatto@hotma..l.com
Attorneys for Plaintiff
ALBERT I. JACOBS, III,
MICHELLE S. JACOBS and
SNAZZY GIRAFFE, LLC,
Plaintiffs
vs.
JOHN J. YANOVIAK, JR., DREW
R. BOBINCHECK and LANDMARK
COMMERCIAL REALTY, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 14-3147
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
COMPLAINT
AND NOW, comes the Plaintiffs, by and through and their
attorney, Dennis J. Shatto, and in support of the within Complaint,
avers as follows:
1. Plaintiff Albert I. Jacobs, III, and Michelle S. Jacobs
are adult individuals who resides at 1617 Fox Hollow Road,
Mechanicsburg, Cumberland County, Pennsylvania, 17055.
2. Plaintiff Snazzy Giraffe, LLC, is a Limited Liability
Company organized and existing under the laws of the Commonwealth
of Pennsylvania, and doing business at 326 Market Street, Lemoyne,
PA. Plaintiffs Jacobs own all of the stock in Plaintiff Snazzy
Giraffe, LLC.
3. Defendant John J. Yanoviak, Jr., is an adult individual
who has an office at 324 Market Street - Rear, Lemoyne, PA 17043.
4. Defendant Yanoviak is the owner of real estate and
improvements known as 326 Market Street, Borough of Lemoyne,
Cumberland County, PA.
5. Defendant Drew R. Bobincheck is an adult individual who
resides at 22 S. 17th Street, Camp Hill, PA 17011.
6. Defendant Bobincheck is a licensed real estate salesperson
employed by Defendant Landmark Commercial Realty, Inc.
7. Defendant Landmark Commercial Realty, Inc., is a corpor-
ation organized and existing under the laws of the Commonwealth of
Pennsylvania, and having a place of business at 20 Erford Road,
Lemoyne, PA 17043.
8. At all times pertinent hereto, Defendant Landmark, a real
estate broker licensed by the Commonwealth of Pennsylvania, was
the listing broker and rental agent for Defendant Yanoviak and was
engaged in efforts to lease space in Defendant Yanoviak's building.
9. At all times pertinent hereto, Defendant Bobincheck acted
pursuant to, within the scope of, and in furtherance of his
employment with Defendant Landmark.
10. In February of 2012, Plaintiffs became interested in
leasing space on the first floor of the property known as 326
Market Street, Lemoyne, PA.
11. At that time, Plaintiffs spoke to Defendant Bobincheck
about leasing space on the first floor of 326 Market Street for
retail sale of children's clothing and accessories.
12. At that time, the second floor space was also vacant.
13. Plaintiffs were provided with a copy of a brochure
believed to have been prepared by Defendant Landmark. Among other
things, the brochure described the second floor as office space
available for lease.
14. Plaintiffs were concerned about the possible use of the
second floor space above the area they were interested in leasing.
15. At their request, Plaintiffs were shown the second floor
space by Defendant Bobincheck, and it appeared to be designed for
use as office space.
16. At that time, Plaintiffs asked Defendant Bobincheck what
use would be made of the second floor, and were told by him that
the second floor would be leased for office use.
17. On or about May 24, 2012, Plaintiff and Defendant entered
into a Business Property Lease Agreement by which Plaintiff leased
from Defendant Yanoviak 1,800 square feet of space on the first
floor of 326 Market Street at a monthly rental of $1,615.00. A
-3
copy of the said Agreement is attached hereto, made a part hereof
and labelled Exhibit "A."
18. In paragraph 2 of the Agreement, Landlord agreed that
Tenant would have quiet enjoyment of the leased space, free from
nuisances such as unreasonable noise and vibration, for the
operation of a business for the retail sale of children's clothing
and accessories.
19. On or about July 1, 2012, Plaintiffs learned that
Defendant had leased a portion of the second floor above
Plaintiffs' space to Harrisburg Brazilian Jiu Jitsu and Judo, LLC,
(Judo) for use in judo instruction, and on or about June 8, 2013,
Defendant leased additional space on the second floor, directly
above Plaintiffs' space, to Judo for the same use.
COUNT I - CONTRACT
Plaintiffs v. Defendant Yanoviak
20. The averments of paragraphs 1 to 19 are incorporated
herein by reference.
21. The judo classes cause unreasonable noise and vibration
in Plaintiffs' space, which is disruptive and detrimental to
Plaintiffs' business.
4
22. Because of the noise and vibration, Plaintiffs are unable
to operate the business on certain days and times when they
otherwise would be open.
23. By leasing the second floor space to Judo and allowing
the noise and vibration to continue, Defendant Yanoviak has
breached paragraph 2 of the Agreement.
24. Despite demand, Defendant Yanoviak has failed or refused
to cure his breach of the lease.
25. Plaintiffs have not gotten the benefit of the bargain
because the monthly rental exceeds the fair market rental value of
Plaintiffs' space.
26. Plaintiffs have been effectively evicted, and will be
forced to relocate the business, thereby incurring relocation and
business interruption costs, and have lost the cost and value of
the improvements they made to the leased space and the costs of
advertising and promotion to establish business presence.
WHEREFORE, Plaintiffs demand judgment against Defendant
Yanoviak in an amount which exceeds the jurisdictional limit
requiring arbitration together with interest, costs and expenses.
COUNT II - CONTRACT
Plaintiffs v. Defendant Yanoviak
5
27. The averments of paragraphs 1-26 are incorporated herein
by reference.
28. In paragraph 1 of the lease, Defendant Yanoviak agreed to
install signage for parking prior to July 25, 2012.
29. This signage is important to Plaintiffs' business because
parking in that vicinity is difficult to find.
30. Defendant Yanoviak has failed or refused to install the
signage, which has adversely affected Plaintiffs' business.
31. Pursuant to paragraph 9 of the lease, Defendant Yanoviak
is responsible for certain maintenance of the lease space.
32. The back door to the leased space has not operated
properly for at least a year. Plaintiff Michelle Jacobs injured
her back by attempting to pull the door closed, and incurred
medical expenses.
33. Despite promising to do so, Defendant Yanoviak has failed
or refused to repair or replace the door.
34. During Plaintiffs' entire tenancy, the emergency exit
light has not been functional and the fire extinguishers have not
been serviced.
35. Despite demand, Defendant Yanoviak has failed or refused
to remedy these deficiencies.
36. Plaintiffs are entitled to and hereby claim reimbursement
of reasonable attorneys fees under paragraph 18 of the lease.
WHEREFORE, Plaintiffs demand judgment against Defendant
Yanoviak for compensatory damages, interest, costs and expenses.
COUNT III - FRAUD
Plaintiffs v. All Defendants
37. The averments of paragraphs 1-36 are incorporated herein
by reference.
38. The representations described in paragraphs 13 and 16
hereof were representations of a material fact and were false when
made.
39. Defendants failed to disclose to Plaintiffs that the
space on the second floor had been leased for judo instruction.
40. Plaintiffs relied upon the representation in deciding to
lease the property.
41. Plaintiffs would not have leased the space if they had
been told that the space on the second floor would be leased for
other than office use.
42. As a result of Defendants' conduct, Plaintiffs have
suffered diminution in the rental value of the leased space, costs
of renovating the space, costs of advertising and promotion, loss
of profit, and emotional distress.
-7
43. As a result of Defendants' conduct, Plaintiffs will incur
costs and expenses in searching for alternate space, build -out
costs, advertising and promotion costs, and moving expenses.
WHEREFORE, Plaintiffs demand judgment against Defendants in an
amount which exceeds the jurisdictional limit requiring
arbitration, together with interest, costs and expenses.
Respectfully submitted,
Dennis J. Shatto, Esquire
PA Attorney ID 25675
828 Limekiln Road
New Cumberland, PA 17070
Attorney for Plaintiffs
‘4//q
BUSINESS PROPERTY LEASE AGREEMENT
This Business Property Lease Agreement (hereinafter called "Lease") is made and
executed this 24 day of May, 2012, by and between John J. Yanoviak with an address of
324 Market Street -Rear, Lemoyne, Pa. 17043 (hereinafter called "Landlord") and Snazzy
Giraffe, LLC with an address of 326 Market Street, Lemoyne, Pa. 17043 (hereinafter.
called "Tenant").
In consideration of the rents herein stipulated and the covenants and agreements
herein contained, and intending to be legally bound hereby and to bind each of their
respective heirs, successors and assigns, the parties do hereby covenant, promise and
agree as follows:
1. LEASED PREMISES
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, that
property, hereinafter called the leased premises, with a street address of:
326 Market Street, Lemoyne, Pa. 17043 and described further as being the following
type of structure:
1800 Square Feet of Office/Retail space (front and middle section of suite).
together with the rights in the Lease for Tenant, Tenant's employees, agents and invitees
of ingress and egress to and from the leased premises from the public thoroughfare ,
together with the following rights of parking and exterior signage:
Parking: Shared Parking in parking lot adjacent to building. Landlord at Landlord's
expense agrees to create lined parking spaces in said lot and to create and install visible
signage at the entrance to the parking lot designating that parking is available for
customers of "The Shops on Market". Landlord agrees to make said improvements prior
to July 25, 2012 so as to have in place prior to Tenant's grand opening in August.
Signs: Signage for the awning at the front of the building shall be provided at the
Tenant's expense in accordance with the requirements of the local
municipality of Lemoyne Borough, and in accordance with any
requirements of any other governmental body which may regulate
such signage, after application and approval of same at Tenant's
sole expense. Landlord shall, however, assist and cooperate with
Tenant in obtaining any approvals from governmental authorities.
Rear of Suite: Landlord shall provide Tenant with a twenty (20) day first right of refusal
to lease the Rear section of the suite prior to renting to another Tenant. In the event
Tenant declines to exercise the option, Landlord at Landlord's sole expense and prior to
renting Rear section to a tenant, shall create a separate entrance at the side of the
building (with visible signage designating same) to allow tenants of the Rear section and
their customers, employees, agents, etc. to enter and exit the Rear section without
Exhibit "A"
entering upon Tenant's Leased space. In no event shall customers, employees, agents,
etc. of the tenant of the Rear section enter upon or loiter in Tenant's leased space.
Landlord further agrees not to place any "For Rent" or "For Lease" sign for the Rear
section in front of Tenant's portion of the building/leased space. The parties hereto agree
and understand that such placement in front of Tenant's leased space would negatively
impact Tenant's business.
2. PERMITTED USE OF LEASED PREMISES
Tenant shall use the leased premises only for commercial, business purposes
consistent with permitted or specially approved uses under the Zoning Ordinance of the
following local municipality: Lemoyne Borough. Any applications and/or approvals
required by a governmental municipality or body for Tenant's proposed use shall be
obtained by Tenant at Tenant's sole expense. Landlord shall, however, assist and
cooperate with Tenant in obtaining any approvals from governmental authorities.
Tenant shall also conduct Tenant's business at all times in accordance with this Lease
and'will maintain a high reputation for the subject property and for Landlord. Tenant shall
not cause waste, damage or injury to the leased premises nor shall Tenant carry on any
unlawful or immoral business, or one which will endanger the buildings from fire or other
hazard.
In addition, Tenant agrees that the leased premises are to be used only for the
following specific business activity unless Landlord agrees in writing to allow another use
or uses:
Use as general retail/office use.
If at any time during the term of this Lease, Landlord determines that Tenant is in
violation of paragraph 2 (Permitted Uses) of the Lease, Landlord shall notify Tenant of
this fact, in writing, and if such violation is not fully cured by Tenant within one (1) week
after receiving such notice from Landlord (or, at Landlord's sole option, a greater time
period as set forth in writing by Landlord may be provided to Tenant to cure this violation),
Landlord may elect to terminate this Lease upon ninety (90) days' written notice to
Tenant. Tenant shall deliver up quiet and peaceable possession of the property at the
expiration of the term of the Lease under this paragraph and/or under any other provision
of this Lease.
Landlord Restriction on Renting to Competing Business
Landlord covenants and agrees during the period of this Agreement not to lease
any part of the building wherein the Leased Premises are located (e.g. the building now
known as the "The Shops on Market") to any business similar to Tenant's or which would
compete with Tenant's business. Landlord further covenants and agrees that the Tenant
shall have huie enjoyment of the Leased Premises free from nuisances including by way
of example but not limited to Feasor e nQI v1 ration' unreasonable music, smoke,
2
mold, noxious fumes and repugnant odors. Landlord also covenants and agrees to not
permit any other tenant in the building or any portion or section thereof to be used for
such uses which wouldnterfere with and/or jeopardize Tenant's_ ability to use the Leased
- Premises as a retail business for children's clothing and:. accessories. Such uses include
but are not limited to the use, manufacturing, storing and/or sale of pornography, sexually
explicit materials, drugs, alcohol, tobacco, explosive devices, hazardous substances, etc.
3. TERM OF LEASE
The term of this Lease shall be for Three years, with Three- 1 year options. Initial
term commencing on the 1st day of August, 2012, and terminating on the last day of
July, 2015, unless extended in writing by the parties pursuant to the terms of this Lease.
Each year of the initial term and any renewal/option years will have a 3% annual increase.
Rent Free Occupancy Period
Landlord agrees to allow Tenant to occupy ("Pre -occupy") the Lease Premises
upon signing of this Agreement through the last day of July, 2012 in order for Tenant to
prepare for its grand opening. Landlord agrees that no rent shall be due during said pre-
occupancy period. As stated in Paragraph 3 above (Term of Lease), rent obligations
shall begin on August 1, 2012, the start of the Initial Lease Term.
If Landlord, for any reason cannot give Tenant possession within five (5) days of
the signing of this Agreement, this Agreement shall automatically terminate on the sixth
(6th) day following the signing of the Agreement with all security deposit monies being
promptly refunded to Tenant and with no further obligations owing to either party.
Landlord Repairs
Within thirty (30) days of signing this Agreement, Landlord at Landlord's expense
agrees to complete the following to the Tenant's satisfaction:
1.) Remove the existing roll -up fire door.
2.) Replace all stained and damaged ceiling tiles with new tiles in a color and
style that matches the existing ceiling tiles.
3.) Clean the awning on the exterior of the lease premises.
4. RENTAL PAYMENTS
Tenant agrees to pay to Landlord rent of $1615.00 dollars per month for the first
year of this Lease. If the term set forth in paragraph 3 (Term of Lease) of this Lease is
greater than one (1) year, then Tenant agrees to pay to Landlord rent as follows for each
month of these successive years:
Second year: $1663.00 per month
Third year: $1713.00 per month
3
Options:
Fourth Year: $1765.00 per month
Fifth Year: $1818.00 per month
Sixth Year: $ 1872.00 per month
Rental payments are payable in advance prior to the 1st day of each month,
starting on the 1st day of August, 2012, and continuing with payments on or before the
same day of each succeeding month, so long as this Lease shall be in effect.
All rental payments, as well as any other payments or amounts due Landlord
under this Lease, are payable by Tenant to Landlord at 324 Market Street -Rear
Lemoyne, Pa. 17043, or at such place as Landlord may from time to time designate in
writing, on or before the date specified in this paragraph. ,All payments due under this
Lease to Landlord are payable in advance, #thout setoff or'deductions of any kind, or the
late charges set forth in the next paragraph may at Landlord's option be applied.
Landlord's appearance at the leased premises and receipt of rent in person at any time
shall not be deemed to be a waiver of any provision of this lease as to that or any
subsequent payment.
The rental payment amount for any partial calendar months that may occur shall
be prorated on a daily basis.
5. LATE CHARGES.
Tenant agrees to pay a late charge of ten (10%) percent of the total monthly rental
amount plus ten (10%) percent of any other payments due from Tenant to Landlord
pursuant to the terms of this Lease for payments made after the 5th day of the month (e.g.
5 day grace period).
6. SECURITY DEPOSIT
Tenant agrees to pay to Landlord and has paid at Lease signing a security and
damage deposit of $3230.00 dollars as security for the full and faithful performance by
Tenant of all of the terms, conditions, and covenants of this Lease.
If at any time during the lease term Tenant has failed to maintain the premises
and/or repair any damage to the premises that Tenant is required to maintain and/or
repair pursuant to the terms of this Lease, Landlord shall give Tenant written notice of the
needed maintenance and/or repair and Tenant shall have fifteen (15) days to perform the
maintenance or repair. If after fifteen (15) days of receiving notice Tenant has failed to
make the repairs, Landlord in that event may use any portion of the security deposit to
maintain and/or make such repairs to the leased premises. If Landlord uses any portion
of the security deposit to maintain and/or make such repairs, then Tenant shall provide to
Landlord within one (1) week of receiving written notice of the repairs completed and
costs thereof from Landlord that such maintenance and/or repairs (or a portion of such
maintenance and/or repairs) have been done, the same amount expended by Landlord in
order to replenish the security deposit to its original amount.
4
This deposit without interest is to be refunded at the end of the term of this Lease,
or the end of any renewal thereof, unless Tenant has not vacated the leased premises or
should be in default, or otherwise be in violation of any of the terms of this Lease, in which
case the security and damage deposit may be utilized and credited against any amount
as may be determined to be due to Landlord under this Lease. Landlord within one (1)
week of applying any portion of the security deposit against Landlord's damages, rent due
or any other damages or costs shall provide Tenant with written notice and an accounting
of the application of the security deposit and if Tenant has vacated the Lease Premises
shall refund to Tenant the balance of the security deposit within said time. If Landlord is
due any additional amount from Tenant under the terms of this. Lease after applying the
security deposit to those amounts, then Tenant shall pay the balance due to Landlord
within one (1) week of receiving written notice and an accounting from Landlord of the
application of the security deposit and of the additional amounts due to Landlord under
the Lease, or be liable to Landlord for that additional balance owed and for Landlord's
reasonable attorney's fees and other costs paid by Landlord to obtain, enforce and collect
payment of that balance.
Tenant recognizes and agrees that this deposit cannot be applied as rent in lieu of
any monthly payment, including the last month's rent, and Tenant's failure to pay rent on
this basis shall constitute a default in the terms of this Lease.
Except as otherwise permitted by this Lease Agreement, Tenant shall not be
required during the Initial Term of this Agreement or any Renewal or Holdover Term to
provide any additional security deposit or any increase thereof.
If Landlord transfers its interest in the Leased Premises during the term of this
Lease, Landlord shall assign the security deposit to the transferee.
Tenant recognizes and agrees that Tenant has inspected the leased premises and
that the premises are clean and in good order and condition, and agrees to maintain the
premises and deliver the same to Landlord in the same condition at the end of this Lease,
less reasonable wear and tear. Tenant shall inspect the premises, and any defect
existing at the execution of this lease shall be confirmed between the parties in writing, or
Tenant shall be barred from any claim that such defect was preexisting at the termination
of the lease.
Tenant shall provide a written notice of any change in Tenant's address by
providing a new physical or street address to Landlord (not a post office box or mail
service). If Tenant fails to provide a valid forwarding address to Landlord within one (1)
week after the earlier of the termination of this Lease or of Tenant vacating the leased
premises, then Tenant waives Tenant's right to receive back any portion of the Security
Deposit not otherwise applied towards an amount due Landlord under this Lease.
5
Tenant's attention is called to the following items of deficiency upon the conclusion
of the lease, which are provided as Tenant's responsibilities under this Lease, as to
actions that should be taken by Tenant to assure maximum recovery of the security
deposit:
Tenant -damaged items should be repaired prior to vacating, with the advice and
consent of Landlord.
The entire leased premises are to be cleaned. Floors are to be cleaned and, if
applicable, wall to wall carpets are to be shampooed.
All light fixtures should have working bulbs.
All keys, including Tenant made duplicates, are to be returned.
All trash, debris and any Tenant property must be removed.
All rental payments and any other amounts due to Landlord under this Lease must
be current.
A forwarding address must be provided to the Landlord in writing.
7. UTILITIES AND HVAC SYSTEM
Landlord shall pay for utilities, including but not limited to water, electricity
(including exterior lighting), trash removal, and sewer rental charges, and fire insurance
on the building in connection with leased premises.. Landlord covenants and agrees to
remain current on all utility charges and to not cause any interruption of the utilities which
would interfere with Tenant's use of the Lease Premises, except, however, disruption of
utility services due to acts of god, reasonable down time for maintenance, and
circumstances outside of the Landlord's control.
Tenant shall pay for all telephone/cable charges including installation thereof, in
connection with Tenant's occupation of the leased premises. Tenant agrees to and shall
protect and hold harmless Landlord and the leased premises from liability for any and all
such telephone and cable expenses, assessments and charges, together with any
interest, penalties, and/or other sums imposed thereon, and from any sale or other
proceeding to enforce payments thereof.
The HVAC system shall be serviced and maintained by the Landlord at Landlord's
sole expense. At the end of the useful life of the current HVAC system or at such earlier
time as Landlord may elect, Landlord shall replace the HVAC system with a HVAC
system of equivalent size and specifications.
Landlord shall pay for all real estate taxes including but not limited to all general real
estate taxes and special assessments.
6
8. DELIVERY OF POSSESSION OF LEASED PREMISES TO LANDLORD - HOLD
OVER TENANCY
A hold over by Tenant beyond the term of this Lease, without first obtaining from
Landlord a written extension or renewal of either this Lease or a Lease acceptable to
Landlord, shall, at the sole option of Landlord, be deemed a renewal of the Lease on a
month-to-month basis, at a rate equal to the monthly rental amount of the last month of
the current rental term plus Fifteen (15%) percent, with the renewal being subject to all
other provisions contained in this Lease. Either party may terminate the Holdover
Tenancy by giving the other party thirty (30) days written notice. In the alternative,
Landlord may consider Tenant to be in default of this Lease for not vacating the leased
premises at the expiration of the current Lease's term and may exercise any and all
remedies provided for such default under this Lease and/or under law.
9. MAINTENANCE AND REPAIR OF PREMISES, JANITORIAL SERVICE AND
SUPPLIES
Tenant Responsible for Janitorial
Tenant is responsible for the routine cleaning, janitorial service and supplies, and
removal of trash within the Leased Premises. Tenant agrees to maintain a clean, sanitary
and orderly business atmosphere.
Tenant Responsible for Routine/Minor Repairs
Tenant agrees to keep the leased premises in good order and repair. Tenant
further agrees (after consultation with Landlord) to make minor repairs to the doors,
floors, interior walls, ceilings, plumbing fixtures, interior stairways and interior railings
which have become damaged.
Tenant Responsible for Snow Removal on Sidewalk
Tenant shall keep the sidewalk and awning area directly in front of Tenant's
Leased Premises -, clear and free of ice, snow and trash and agrees to assume sole
liability for accidents alleged to have been caused by -- conditions relating thereto
Landlord Responsible for Snow Removal of Parking Lot
Landlord shall be responsible for keeping the parking lots, other paved areas and
other sidewalk areas on or about the Leased Premises as well as on or about the Lease
Premises, clear and free of ice, snow, leaves and trash and Landlord agrees to assume
sole liability for and save Tenant harmless for accidents alleged to have been caused by
conditions relating thereto.
Landlord Responsible for Maintenance of Parking Lot and Major Systems
Landlord shall be responsible for the general maintenance of the parking Tots, sidewalks
and other paved areas on or about the Leased Premises including but not limited to the
repair of any cracks, ridges, potholes or other defective conditions thereon. Landlord
agrees to assume sole liability for and save Tenant harmless for accidents alleged to
have been caused by conditions relating thereto.
Landlord shall also be responsible for all repairs and maintenance to the:
1.) Mechanical systems (including HVAC (as already state above), electrical,
plumbing and sewage systems) in connection with the Leased Premises;and
2.) Windows, exterior walls, exteriors stairways and exterior railings, awnings
and exterior overhangs, roof, foundation and structural members in connection
with the Leased Premises.
10. ALTERATIONS, IMPROVEMENTS, ADDITIONS, AND FIXTURES
The premises are leased in their "As Is" condition as of the date of this
lease. All upgrades, repairs, alterations, additions, and/or improvements required to
make the premises ready for occupancy per 1) local or state building codes, 2)
Pennsylvania law, including but not limited to Labor and Industry standards, or 3) Federal
law, including but not limited to standards for access for the disabled, as well as any and
all work required to make the premises suitable for a tenant's general occupancy, or for
this Tenant's particular occupancy, shall be made at the sole expense of the Tenant,
unless it is expressly stated to the contrary in this lease.
Tenant shall not make any alterations, additions, and/or improvements in, to or
about the leased premises unless Landlord consents in writing in advance to such
proposed alterations, additions, and/or improvements. If requested by Landlord, Tenant
shall also submit plans and designs of any proposed alterations, additions,
improvements, fixtures to Landlord for his review prior to approval. If Landlord approves
any such alteration, addition, improvement or fixture based upon Tenant's compliance
with any plans or designed submitted to Landlord, Tenant shall strictly adhere to those
plans and/or designs unless Landlord agrees to any change therefrom. Landlord may, in
his sole discretion, impose any condition or limit, including the requiring an increase in the
original security deposit, before agreeing to approve Tenant's request for Landlord's
approval of an alteration, addition, improvement, or installation of a fixture.
With respect to any and all alterations, additions, improvements and/or fixtures
permitted to be installed by Tenant on the leased premises, they shall all upon the
termination of this Lease belong absolutely to Landlord without compensation to Tenant,
free and clear of any and all claims against them by Tenant or any third person, and
Tenant hereby agrees to hold Landlord harmless from any claims that may be made
against such improvements by any third persons. Provided, however, that Landlord shall
have the option, to be exercised within thirty (30) days after expiration of the Lease or
sooner, to require Tenant to remove any or all of such alterations, additions,
improvement, and/or fixtures at Tenant's sole expense by no later than the .expiration of
the Lease or within thirty (30) days after receiving notice of such request by Landlord,
whichever is later.
In addition, if Tenant and Landlord have expressly agreed in writing to allow
Tenant to remove a particular fixture or fixtures installed by Tenant during the term of the
Lease, and if Tenant is not in default with respect to any payments or other duties
required of Tenant pursuant to the Lease, then Tenant shall be permitted to remove that
specified fixtures or fixtures by the termination of the Lease term. Provided, however, that
Tenant shall be solely responsible to repair any damages to the leased premises caused
by such removal by no later than the termination of the Lease term, and provided further
that any such fixture which is not removed by the termination of the Lease term shall be
deemed abandoned by Tenant and governed by the provisions of the preceding
paragraphs of paragraph 10 of this Lease. Any repairs to the leased premises pursuant
to this paragraph shall be made in a careful, workmanlike manner and in compliance with
all applicable federal, state and municipal laws and regulations.
11. SUBLETTING OR ASSIGNMENT
Tenant agrees not to sublet the premises, advertise the premises as available for
rent, or assign this Lease without the written consent of the Landlord, which consent shall
not be unreasonably withheld. If Tenant, in violation of this Lease, sublets the leased
premises or assigns the Lease without Landlord's prior written consent, any money
collected as rent shall be held in trust for the benefit of Landlord and shall constitute
liquidated damages due to Landlord in addition to the rental payments due to Landlord
from Tenant under this Lease, and shall be paid to Landlord within one (1) week of
Tenant receiving the same.
Landlord is expressly given the right to assign any or all of his interest and rights
under the terms of this Lease.
12. INSPECTION OF PREMISES
Landlord, through Landlord or Landlord's agents and employees, maintains the
right to inspect the leased premises at reasonable times during the lease term, and upon
reasonable advance notice to Tenant, provided Landlord, its agents and employees, shall
not unreasonably interfere with Tenant's business on the Leased Premises While it is
agreed that 24 hours advance oral or written notice shall always constitute reasonable
notice under this section of the Lease, it is further agreed that Tess notice may be given in
emergency situations or based upon other circumstances which would make less notice
reasonable.
13. .DAMAGE TO PREMISES AND PROHIBITION OF ANY NUISANCE
Tenant shall not commit, or allow to be committed, any waste or damage on the
leased premises, nor shall Tenant maintain, commit, or permit the maintenance or
commission of any nuisance on the leased premises.
All damage done to the leased premises by Tenant, Tenant's agents, servants,
employees, visitors or customers, other than damage due to ordinary wear and tear (and
existing conditions), shall be repaired at Tenant's expense and shall be completed within
one (1) week after the earlier of Tenant becoming aware of the need for such repair or
receiving a written request from Landlord to make such repair, and such repair shall be
made to Landlord's satisfaction. Tenant shall promptly consult with Landlord regarding
the nature of any proposed repair if it will alter the leased premises in any manner, and
receive Landlord's approval for such repair before undertaking the same (with the
exception of an emergency repair to a water pipe or similar repair requiring immediate
attention in order to prevent extensive damage to the leased premises).
14. LIABILITY
Tenant shall store Tenant's property in and/or on the leased premises, and shall
occupy the same, at Tenant's own risk. Tenant hereby releases Landlord to the full
extent allowed by law from all claims of every kind resulting in loss of life, personal or
bodily injury, and/or property damage, except for claims arising from an intentional act of
the Landlord or Landlord's breach of the covenants or conditions of this Lease Agreement
Landlord shall not be responsible or liable at any time for any loss or damage to Tenant's
equipment, fixtures, merchandise or other property of Tenant. Landlord shall not be
responsible or liable to Tenant or to those claiming by, through or under Tenant for any
loss or damage to either the person or property of Tenant that may be occasioned by or
through the acts or omissions of persons occupying adjacent or adjoining premises.
Landlord shall not be responsible for any defect, latent or otherwise, in the leased
premises or in the building of any of the equipment, machinery, utilities, appliances, or
apparatus therein.
Tenant further agrees to release and discharge Landlord, Landlord's agents,
servants or employees, and Landlord's successors or assigns, from any and all liability by
reason of injury, loss or damage to Tenant's employees or property in the premises
caused by fire, the breaking, bursting, stoppage or leakage of any water pipe, gas pipe,
sewer, basin, water closet, steam pipe and drain in any part or portion of the leased
premises, fixtures or building thereon, and from all liability for any injury, loss or damage
to Tenant's property caused by the water, gas, steam, waste and contents of said pipes,
sewers, basins, water closets and drains or from any kind of injury, loss or damage to
Tenant's property that may arise from any other cause on the premises, fixtures or
building thereon unless directly attributable to Landlord's negligence or failure to comply
with Landlord's covenants herein relating to utilities and maintenance of the leased
10
premises.
Tenant shall indemnify Landlord and save Landlord harmless from all suits,
actions, damages, liability and expense (including reasonable attorney's fees and costs).
in connection with the loss of life, personal or bodily injury, personal property damage or
any other damage, injury or loss arising from or out of any occurrence in, upon, or at the
leased premises or any part thereof, or occasioned wholly or in part by any act or
omission of Tenant, Tenant's agents, contractors, employees, servants, invitees, or
licensees, except by any intentional and willful acts by Landlord or its agents or by causes
of action arising from Landlord's breach of the conditions and covenants of this Lease
Agreement Tenant shall, at Tenant's sole expense and cost, defend any and all suits or
actions (whether just or unjust) which may be brought against Landlord or in which
Landlord may be joined with others upon any such mentioned matter(s) and/or claim(s),
except for claims or causes of actions arising from Landlord's intentional and willful acts
or Landlord's breach of the conditions and covenants of the Lease Agreement. Tenant
agrees to be responsible for any damage to the property of Landlord which may result
from any use of the leased premises and/or by any act done thereon by Tenant and/or
any person coming or being therein by express or implied license or permission by
Tenant.
15. FIRE AND CASUALTY DAMAGE TO LEASED PREMISES
If the building or other improvements on the leased premises should be damaged
or destroyed by fire, flood, or other casualty, Tenant shall give immediate written notice
thereof to Landlord.
In the event that the leased premises or any buildings or fixtures thereon shall be
totally destroyed or substantially destroyed by fire or other casualty, Tenant must give
Landlord written notice within twenty (20) days of said destruction of Tenant's intent to
cancel and terminate this Lease without further liability on the part of either party; if
Tenant fails to so notify Landlord, then this Lease shall not terminate but in such event
rent shall entirely or proportionately abate in accordance with the following paragraph
hereunder and Landlord agrees to repair, restore or rebuild the portions of the leased
premises, subject to the availability of sufficient insurance proceeds to pay in full such
costs, to its condition (or a substantially equivalent condition) immediately prior to such
damage or destruction with due diligence and within one hundred twenty (120) days after
such damage, and in the event that the leased premises cannot be repaired, restored or
rebuilt within such period, Tenant's sole remedy shall be the right to cancel and terminate
this Lease without further liability on the part of either party.
The rent payable hereunder shall entirely abate in case the leased premises are
substantially destroyed or so damaged as to be rendered untenantable, or abate
proportionately according to the extent of the injury or damage sustained by the premises
if the leased premises is not substantially destroyed but is rendered partially
11
untenantable, until the premises shall have been restored, repaired, or rebuilt as the case
may be, and put in proper condition for use and occupancy.
Landlord shall not be liable to Tenant for any damage, compensation or claim by
reason of inconvenience or annoyance arising from the necessity of making repairs,
alterations or additions to any portion of the premises, the interruption in the use of the
premises or the termination of the Lease by reason of the destruction of the leased
premises.
16. INSURANCE
Tenant, at Tenant's own expense, shall maintain comprehensive public liability and
property damage insurance from a financially sound and reputable insurance carrier in an
amount of not less than One Million Dollars ($1,000,000.00) for loss and/or injury to any
one person from any one accident or occurrence, and not less than Two Million Dollars
($2,000,000.00) for any loss and/or injury in the aggregate from any one accident or
occurrence. Landlord shall be named as an additional insured on Tenant's said
policy of insurance and Tenant shall provide a copy of the insurance policy and
certificate of insurance to Landlord.
In addition, Tenant, at Tenant's own expense, shall maintain fire and extended
coverage insurance on Tenant's fixtures,goods, wares and merchandise in or on the
leased premises, with coverage in an amount of not less than Two Hundred Fifty
Thousand Dollars ($250,000.00), and on the leased premises in an amount of not Tess
than Five Hundred Thousand Dollars ($500,000.00). Landlord shall be named as an
additional insured on Tenant's said policy of insurance and Tenant shall provide a
copy of the insurance policy and certificate of insurance to Landlord.
Tenant shall also provide proof to Landlord that the said insurance policies
required by this paragraph expressly provide that the policy shall not be cancelled or
altered without Tenant or the insurance company first providing (30) days prior written
notice to Landlord of an intent to cancel or alter the said policies.
Each party shall look first to any insurance in its favor before making any claim
against the other party for recovery of loss or damage resulting from fire or other casualty.
17. DEFAULT AND REMEDIES
Any violation of any term of this Lease by Tenant shall be deemed a default of the
Lease by Tenant. If Tenant should remove or prepare to vacate or remove, or attempt to
vacate or remove from the premises before the expiration of the Lease term or at any
time during the continuance of this Lease, except as permitted via a termination for
convenience or as otherwise permitted under this Lease Agreement, or if Tenant shall be
in default in the payment of any installment of rent, or should there be a violation or
12
default in any of the covenants or conditions herein, and should Tenant fail to remedy
such default within five (5) days of written notice of said default by Landlord to Tenant, or
if Tenant should become insolvent, or make an assignment for the benefit of creditors or
if a petition in bankruptcy is filed by or against Tenant or if proceedings for reorganization
or for composition of creditors under any state or federal law be instituted by or against
Tenant, or if the real or personal property of Tenant shall be sold after levy, then in that
event, rent for the full unexpired portion of the then current term of the Lease, at the rate
which is then due and collectible under the terms of the Lease, shall immediately become
due and payable and shall be collectible by distraint or otherwise. In addition to any other
remedy provided by this Lease or by law, Landlord shall .also have the further right, in the
event of Tenant's failure to cure any default as provided in this paragraph, to terminate
this Lease, with termination of the Lease by Landlord to be effected by giving notice in
writing to Tenant or to the person then in charge of the leased premises, and without any
right on the part of Tenant to save the forfeiture of the Lease by payment of any sum due
or by other performance of any condition, term or covenant.
If Tenant is in default in the payment of rent or with respect to any other term or
condition of this Lease, then in addition to any other right granted to Landlord by this
Lease or applicable law, it is expressly agreed between the parties that should Tenant fail
to remedy such default within five (5) days of written notice of said default by Landlord to
Tenant, then 3/andlord may' at his option, without additional notice to Tenant, re ote�r nd
take-possessiorn-ef theJeased premises, breaking open any locked doors if necessary to
effect entrance, and remove all persons and property therefrom, without being deemed
guilty or liable of any manner of trespass, since Tenant hereby expressly agrees to grant
this right to Landlord, and without any liability for damages for such entry or for its
manner, and Landlord may then relet the leased premises or any part thereof, for all or
any part of the remainder of the Lease term, to a party satisfactory to Landlord, and at
such monthly rental as Landlord may with reasonable diligence be able to secure, with
such rent collected from this third party to be used to offset rent and other amounts due
from Tenant for the remainder of the Lease term. If Landlord is unable to relet after
reasonable efforts to do so, or should such monthly rental be less than the rental Tenant
was obligated to pay under this Lease, or any renewal thereof, plus the expense of
reletting, then Tenant shall pay the amount of such deficiency to Landlord within one (1)
month of Tenant receiving notice of this deficiency. If Landlord exercises his right to
reenter and take possession of the leased premises pursuant to the terms of this Lease,
then the parties agree that Tenant shall have no right to reenter the leased premises
upon receiving notice or knowledge of Landlord's exercise of this right, and any further
entry by Tenant upon the leased premises after receiving such notice or having
knowledge of Landlord's reentry shall be deemed to be a trespass upon the leased
premises by Tenant.
If Tenant fails to pay by their due date any utilities, expenses, assessments,
insurance premiums, and/or any other charges which are Tenant's responsibility under
13
this Lease, then Landlord may, at his sole option, at any time after their due date pay
some or all of these amounts (including interest, penalties or other sums assessed
because of Tenant's failure to pay such amounts due in a timely manner), and such
amounts paid by Landlord shall become immediately due and payable as rent by Tenant
to Landlord, together with interest at the rate of ten (10) percent per annum from the date
of Landlord's payment of the same until paid by Tenant. Any such payment by Landlord
shall not be deemed to be a waiver of any other rights which Landlord may have under
the provisions of this Lease or as provided by law.
It is expressly agreed that in the event of default by Tenant and Tenant's failure to
cure such default in the time provided in this Lease, Landlord shall also have atierron all
goods, chattels, and/or personal property of any description belonging to Tenant which
are place in, or become a part of, the leased premises, as security for rent or other sums
due under this Lease to Landlord, and for rent or other sums which are to become due for
the remainder of the current Lease term, which lien shall not be in lieu of or in any way
affect any statutory Landlord's lien given by law, but shall be cumulative thereto; and,
Tenant further grants to Landlord a security interest in all such personal property place in
said leased premises for such purposes. This provision shall not prevent the sale by
Tenant of any merchandise in the ordinary course of business free of such lien to
Landlord. In the event Landlord exercises the option to terminate the Lease and reenter
the leased premises as provided for in this Lease, then-L-,andlord-r ay a1 - ossession of
nil-of-Tenants er`t"y on the premises and, after giving Tenant one (1) week's written
otice of the time and place of such sale, sell the same at a public or private sale for cash
or on credit, or for such prices and terms as Landlord deems best, with or without having
the property present at such sale. The proceeds of such sale shall be applied first to the
necessary and proper expense of removing, storing and selling such property, then to the
payment of any rent or other amounts due or to become due to Landlord under this
Lease, with the balance, if any, to be paid to Tenant.
All right and remedies of Landlord under this Lease shall be cumulative, and none
shall exclude any other right or remedy at law. Such rights and remedies may be
exercised and enforced concurrently and whenever and as often as occasion therefore
arises.
18. ENFORCEMENT/ATTORNEY FEES/BAD CHECKS
Tenant shall reimburse Landlord for any and all reasonable attorney fees and
other costs and expenses incurred by Landlord in connection with any enforcement action
taken under this Lease in the event of any default by Tenant or breach of any condition of
the Lease by Tenant. It is agreed that Landlord's minimum reasonable attorney's fees in
the event Landlord brings legal action to recover possession, unpaid rent, or money for
physical damages to the premises, for which the Tenant is found to be liable, is $500.00.
In addition, Tenant shall also reimburse Landlord for any and all reasonable attorney
fees and other costs and expenses incurred by Landlord in connection with the collection
14
of any judgment obtained through any enforcement action taken under this Lease by
Landlord.
Bad checks shall be subject to a $25.00 administrative fee, plus actual bank
charges incurred by Landlord as a result of the bad check, plus Landlord's reasonable
attorney's fees incurred (whether by filing a lawsuit, contacting Tenant, or any other
action) in order to obtain payment of the bad check. It is agreed that Tenant shall, at a
minimum, pay attorney's fees of at least $50.00 if Landlord engages an attorney to give
notice of, or otherwise take any action to collect upon, a bad check.
'Landlord shall:retrnb,urse Tenant foray y'andall reasonable:., attorneyyfee and
other costs and expenses incurred by Tenant in connection with any action taken under
this Lease in the event of any default or breach of any promises, covenants or conditions
of the Lease by Landlord.
19. EMINENT DOMAIN
In the event that the leased premises or any part thereof is taken by eminent
domain for a public or quasi -public use or condemned, this Lease shall, as to the parts so
taken, terminate as of the date title shall vest in the condemnor and rent shall abate in
proportion to the area of leased space taken or condemned or shall cease if the entire
leased premises is taken. Tenant waives all claims against Landlord by reason of the
condemnation or completed or partial taking of the premises. Such termination of this
Lease Agreement shall, however, be without prejudice to the rights of either party to
recover compensation from the condemning authority or the authority that has completed
the taking (whether a complete or partial taking) for any loss or damage caused by the
condemnation. Neither party shall have any rights in or to any award made to the other
by the condemning authority.
20. SUBORDINATION
The rights and interest of Tenant under this Lease shall be subject and
subordinate to any first mortgage that is on record as of the date hereof.
21. SALE OR RENT SIGN, ACCESS TO SHOW LEASED PREMISES TO
PROSPECTIVE PURCHASERS OR TENANTS
If an agreement has not been signed in writing by all parties to this Lease to
extend or renew the current Lease term, Landlord shall have the right, at any time
beginning sixty (60) days prior to the termination of the Lease's current term, to display a
"For Sale" sign, a "For Rent" sign, or a similar sign upon the leased premises. During this
same sixty (60) day time period before the expiration of the Lease's term, Landlord is
authorized, upon providing 48 hours oral or written notice to Tenant, to grant prospective
purchasers or tenants access to the leased premises to inspect them at reasonable
hours.
15
22. ENTIRE AGREEMENT
This Lease contains all of the representations and promises made by either of the
parties to the other for the purposes contained herein, and supersedes any and all prior
agreements and negotiations between them. There are no oral or written claims,
warranties, promises or representations other than those expressly set forth herein.
Nothing concerning this Lease may be changed unless reduced to writing and signed by
both of the parties hereto:
23. BINDING EFFECT OF LEASE AGREEMENT
The covenants and agreements contained in this Lease are binding upon the
parties hereto and their respective heirs, successors and assigns.
24. NO WAIVER BY LANDLORD
The failure of Landlord to insist, in any one of more instances, upon a strict
performance of any of the covenants in this Lease, or to exercise any option herein
contained, shall not be construed as a waiver or relinquishment for the future of such
covenant or option, that the same shall continue and remain in full force and effect.
The receipt by the Landlord of rent, with knowledge of the breach of any covenant
hereof, shall not be deemed a waiver of such breach, and no waiver by the Landlord of
any provision hereof shall be deemed to have been made unless expressed in writing and
signed by Landlord.
In the event Tenant gives Landlord grounds to recover possession of the property
and permits the same to continue until the actual filing of legal action by Landlord to
recover possession of the premises, the subsequent payment by Tenant and acceptance
by Landlord of money on account of Tenant's default shall not cure the default in total, or
reinstate the lease, unless it is expressly agreed in writing that the payment shall have
such an effect. This is not a "pay and stay" lease after legal action has been filed to
recover possession.
25. SEVERABILITY AND CONTINUANCE OF VALID PROVISIONS
If any provision of this Lease shall be determined or declared to be void or invalid
in law or otherwise by any court of competent jurisdiction, then only that provision shall be
stricken from this Agreement, and such determination shall not affect any other provisions
of this Lease, all of which other provisions shall remain in full force and effect; and it is the
intention of the parties hereto that if any provision of this Lease is capable of two
constructions, one of which would render the provision void and the other of which would
render the provision valid, then the provision shall have the meaning which renders it
valid.
16
26. HEADING NOT PART OF LEASE
Any headings preceding the text of the paragraphs and/or subparagraphs of this
Lease are inserted solely for convenience or reference, and shall not constitute a part of
this Lease, nor shall they affect its meaning, construction, or effect.
27. NOTICES AND INTERPRETATION
All notices to be given hereunder by either party (unless expressly stated
elsewhere in this Lease that an oral notice is sufficient) shall be in writing and given to
Landlord or Tenant and shall be sent by certified mail, postage prepaid, addressed to the
party intended to be notified and notice given as aforesaid shall be sufficient service
thereof and shall be deemed given as of the date when deposited in a receptacle
regularly maintained by the United States Postal Service or its successor, to the following
addresses:
If to Landlord: John Yanoviak
324 Market Street -Rear.
Lemoyne, PA 17043
If to Tenant:
Snazzy Giraffe, LLC
Attn: Michelle Jacobs
1617 Fox Hollow Road
Mechanicsburg, PA 17055
or to such other addresses as may from time to time be furnished to the parties hereto,
effective upon the receipt of written notice thereof given as set forth above.
All parties acknowledge that they have consulted or have had the opportunity to
consult with legal counsel regarding the terms of this Lease, and Tenant agrees that the
terms of this Lease shall not be construed in Tenant's favor in the event of any dispute
over its meaning or interpretation merely because it has been drafted by Landlord.
28. GOVERNING LAW
The terms and conditions of the Agreement shall be, governed in accordance with
the laws of the Commonwealth of Pennsylvania.
29. WAIVER OF NOTICE TO QUIT
In the event of any default by Tenant or failure of Tenant to vacate at the end of
the Lease term as required, no written or specific Notice to Quit shall be required in
advance of Landlord exercising any remedy provided in this Lease or otherwise by law.
Landlord may bring legal action based upon rights conferred in this lease without fulfilling
any prior notice requirement.
17
30.._ ACKNOWLEDGEMENT OF LEGAL EFFECT OF LEASE DOCUMENT
THIS LEASE IS A LEGAL DOCUMENT. ALL PARTIES TO THIS LEASE
ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD ALL OF ITS
PROVISIONS. ALL PARTIES TO THIS LEASE ACKNOWLEDGE THAT THEY HAVE
HAD THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL OF THEIR OWN
CHOOSING TO ANSWER.ANY QUESTIONS THEY MAY HAVE HAD ABOUT THE
LEGAL EFFECT OF ANY PROVISIONS OF THIS LEASE BEFORE SIGNING IT.
31. AMOUNT DUE AT LEASE SIGNING
Security -deposit in the amount of $3230.00 and 1st month's rent are due at lease
signing.
32. PERSONAL GUARANTY
In the event that this lease is executed in a corporate capacity, the Landlord
reserves the right to condition its acceptance as a binding co.ntract between the parties
upon the addition of the personal guaranty(s) of the individual corporate principle(s) and
spouse(s), which shall be furnished, if and as requested in writing by Landlord, prior to
delivery of possession, and within three (3) days of the date of this lease. if requested
and not furnished, Landlord may decline to deliver possession and may treat this lease as
null and void.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto -have caused this Lease to be executed the day and year first above written.
By:
N YANOVIAK, Landlord
SNAZZY GIRAFFE, LLC, Tenant
18
MicIle Jacobs, ber
GUARANTY OF PERFORMANCE
Know all men by these presents, that in consideration of the execution of a lease contract.
between, John J. Yanoviak, Jr. (hereinafter referred to as Lessor) and Snazzy Giraffe, LLC
(hereinafter referred to as Lessee) which provides for Lessor to provide the use of real property and
certain services to Lessee for a THREE YEAR period in the amount of $ $59,892.00; the
undersigned , with the intent to benefit the Lessee, with whom a common interest is shared, do
hereby guaranty, promise, and agree with Lessor to faithfully pay the obligations required of the
Lessee in the said lease contract, at the time and in the manner therein provided, should performance
on the part of the Lessee not be forthcoming.
Intending to be legally bound hereby, the undersigned have set their hands and seals hereto on the 24th day
of May 2012.
/1444-1
Trus
If the party signing this guaranty is married, both husband and wife must sign.
VERIFICATION
I, MICHELLE S. JACOBS, hereby verify that the statements made
in the attached Complaint are true and correct to the best of my
knowledge, information and belief. I understand that false
statements made herein are subject to the penalties of 18 Pa.
C.S.A. §4904 relating to unsworn falsification to authorities.
Date:
5/1y/iv
MICHELLE S . JA OB4friCC)6j)
CERTIFICATE OF SERVICE
I, DENNIS J. SHATTO, hereby certify that on this day, I served
a true and correct copy of the foregoing document upon the persons
and entities indicated below, by depositing same in the United
States mail, first class postage prepaid, addressed as follows:
John J. Yanoviak, Jr.
324 Market St.. - Rear
Lemoyne, PA 17043
Drew R. Bobincheck
22 S. 17th St.
Camp Hill, PA 17011
Landmark Commercial Realty, Inc.
20 Erford Road
Lemoyne, PA 17043
Dated:
Dennis J.Shatto
PA Attorney ID 25675
828 Limekiln Road
New Cumberland, PA 17070
(717)547-6384
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ALBERT I. JACOBS III, : No. 14-3147
MICHELLE S. JACOBS and
SNAZZY GIRAFFE, LLC, Plaintiffs : Civil Action - Law
vs.
JOHN J. YANOVIAK, JR., DREW R.
BOBINCHECK and LANDMARK COMMERCIAL :
REALTY, INC., Defendants
TO THE PLAINTIFFS:
YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MATTER WITHIN
TWENTY (20) DAYS FROM THE SERVICE HEREOF OR A DEFAULT JUDGMENT MAY
BE ENTERED AGAINST YOU.
c—
CL-7.
—0
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ALBERT I. JACOBS III,
MICHELLE S. JACOBS and
SNAZZY GIRAFFE, LLC, Plaintiffs
vs.
JOHN J. YANOVIAK, JR., DREW R.
BOBINCHECK and LANDMARK COMMERCIAL :
REALTY, INC., Defendants
No. 14-3147
Civil Action - Law
ANSWER OF DEFENDANT JOHN J. YANOVIAK, JR.
1 through 7. Admitted.
8 and 9. Admitted in part and denied in part. The agency of
Defendant Landmark was not exclusive in that not all functions of
the leasing transaction were so delegated. Without further
specificity as to the meaning of the phrase, "all times pertinent
hereto," Defendant Yanoviak is unable to answer with specificity
the degree to which Defendant Landmark and/or Defendant Bobincheck
acted pursuant to or within the scope of his authority.
10. Admitted.
11. Admitted in part. Generally, this paragraph is admitted,
though Defendant Yanoviak was not a part of the referenced
conversation, and does not know of any specifics it may have
involved pertaining to the Plaintiffs' requirements for leased
space.
12. Admitted.
13. Denied. After reasonable investigation, Defendant
Yanoviak is without knowledge or information sufficient to form a
belief as to what brochure may be referred to in this paragraph.
Defendant Yanoviak did not authorize the publication of any
brochure limiting or warranting the use of the second floor as
office space.
14. Denied. After reasonable investigation, Defendant
Yanoviak is without knowledge or information sufficient to form a
belief as to the truth of this averment as he was not a party to
any conversation in which such concerns were raised.
15. Denied. After reasonable investigation, Defendant
Yanoviak is without knowledge or information sufficient to form a
belief as to the truth of this averment as he was not a party to
any such showing. It is denied that the second floor space was
designed for use as office space. Commercial space is by
customarily practice fitted out to the needs of each particular
user at or about the time that it is leased.
16. Denied. After reasonable investigation, Defendant
Yanoviak is without knowledge or information sufficient to form a
belief as to the truth of this averment as he was not a party to
any such conversation. Defendant Yanoviak gave no authorization to
anyone to represent that the second floor would be leased for
office use as opposed to any other use.
17. Admitted.
18. Denied. Paragraph 2 of the Agreement contains three
distinct covenants which are stated in detail and which speak for
themselves.
19. Denied. After reasonable investigation, Defendant
Yanoviak is without knowledge or information sufficient to form a
belief as to the precise date on which the Plaintiffs learned that
2
a lease had been given to Judo. To Defendant Yanoviak's knowledge,
this date would have been after the Plaintiffs executed their lease
but before Plaintiffs occupied the property or had fitted it to
their particular use.
COUNT I - CONTRACT
Plaintiffs v. Defendant Yanoviak
20. No response required.
21. Denied. To the contrary, it is believed and averred that
whatever noise is audible or whatever vibration is discernible is
not in excess of that which a reasonable person would find
tolerable.
22. Denied. After reasonable investigation, Defendant
Yanoviak is without knowledge or information sufficient to form a
belief as to the truth of this averment. Furthermore, and to the
contrary, Defendant Yanoviak avers that the Plaintiffs may be
uniquely sensitive to minor disturbances which reasonable persons
would tolerate, and may be attributing difficulties with their
business operation to this alleged cause when, in fact, other
causes are controlling. Defendant Yanoviak receives no complaints
from other tenants similarly situated who operate retail and office
uses which are at least as sensitive to noise as that of
Plaintiffs.
23. Denied. See paragraph 22.
24. Denied. No breach of the lease has occurred. To the
extent that the Plaintiffs desire more isolation from reasonable
and objectively tolerable amounts of adjoining tenant noise or
vibration, Defendant Yanoviak has offered accommodations beginning
with suggestions concerning how their store could be outfitted with
soundproofing during the pre -occupancy period. The Plaintiffs have
failed to avail themselves to such suggestions.
25. Denied for the reasons stated in paragraph 22.
26. Denied for the reasons stated in paragraph 22.
COUNT II - CONTRACT
Plaintiffs v. Defendant Yanoviak
27. No response required.
28. Denied. Paragraph 1 deals with both the creation of
lined parking spaces and signage. The lined parking spaces have
been created, but the signage was not installed, daily practice
having shown that the public at large has no difficulty associating
the parking lot with the "Shops on the Market" stores. This
omission by Defendant Yanoviak has not been previously been pointed
out, nor made the subject of any complaint of material deficiency.
If the Plaintiffs believe a sign is important, one will be
installed.
29. Denied. See paragraph 28.
30. Denied. There has been no refusal to install signage,
only an innocent omission. There has been no prior complaint that
the sign has adversely affected the Plaintiffs' or any other
parking lot users' business. Defendant Yanoviak has no problem
installing a sign if one is truly desired.
31. Admitted. Paragraph 9 speaks for itself.
32. Denied. The door in question was operable, but
4
apparently had been subject to some seasonal weather related
binding. The door is an emergency exit and is not for regular use;
thus, Defendant Yanoviak did not know of any particular complaint.
When Defendant Yanoviak was advised that Plaintiff Michelle Jacobs
had injured her back in pulling the door and incurred medical
expenses, her medical expenses were promptly paid and the door was
replaced.
33. Denied. The door has been replaced as of June 1, 2014.
34. Denied. After reasonable investigation, Defendant
Yanoviak is without knowledge or information sufficient to form a
belief as to the truth of this averment. No complaint has been
received concerning the lack of emergency exit lighting function.
An electrician has checked this light as of June 25, 2014, and
found it to be working properly. The lease does not require the
landlord to service fire extinguishers. To the best of Defendant
Yanoviak's knowledge, the fire extinguishers in question are a
tenant responsibility and are tenant owned property, not landlord
owned property.
35. Denied. No demands have been made, and no refusals to
remedy deficiencies have been made. Defendant Yanoviak responds
normally to known maintenance concerns in an appropriate manner.
36. Denied. Plaintiffs have not made an appropriate demand
or otherwise made the deficiencies referenced in this Count known
to Defendant Yanoviak, a necessary prerequisite to any cause of
action. Defendant Yanoviak cannot take action as a landlord to
provide service under the lease for issues that are not known to
5
him. Attorney's fees are not appropriate under such circumstances.
COUNT III - FRAUD
Plaintiffs v. All Defendants
37. No response required.
38. Denied. While Defendant Yanoviak is without knowledge or
information as to the specifics of the representations referenced,
no authorization was given to make such references. It is believed
that no such representations were made.
39. Denied. While there is no specific duty known to
disclose such leasing, it is believed that the Plaintiffs knew of
this leasing almost immediately.
40. Denied. To the contrary, no such representation appears
anywhere in the lease, and the lease is specific, in paragraph 22,
that it is the entire agreement of the parties, contains all
representations and promises made by either party to the other, and
supersedes any and all prior agreements and negotiations between
them. Paragraph 22 further precludes oral or written claims,
warranties, promises or representations from being relied upon
other than those expressly set forth in the written lease.
41. Denied. This paragraph calls for a response to a future
conditional state of mind of another party and, as such, does not
lend itself to a factual response. Had the Plaintiffs considered
such a condition a material precondition to their lease, they were
free to negotiate for it and seek to have it incorporated into
their lease, but they failed to do so.
42. Denied for the reasons set forth in previous paragraphs
6
of this Answer.
43. Denied for the reasons set forth in previous paragraphs
of this Answer.
NEW MATTER
44. The Plaintiffs' complaints regarding alleged noise and
vibration are entirely subjective, and not reflective of reasonable
standards for tenants of a multi -unit building in general
commercial use.
45. The Plaintiffs required no warranty and were given no
warranty as to the uses of other units in the building.
46. During their fit -out period, after signing their lease
and prior to occupancy, Plaintiffs took exception to the alleged
noise and vibration. Defendant Yanoviak offered to install
additional soundproofing at Plaintiff's expense or take any other
measures which the Plaintiffs felt would mitigate the entry of
objectionable sound or vibration into their leased premises. In
failing and refusing to implement such mitigating measures, the
Plaintiffs have failed to mitigate their alleged damages.
47. Any difficulties the Plaintiffs have with making their
business profitable has nothing to do with noise or vibration
emanating from the Judo tenant.
48. Any conflict at all is minimal due to non -intersecting
hours when the upstairs activities take place and the Plaintiffs'
downstairs business is in operation. Other downstairs tenants who
are similarly situated and need of quiet enjoyment have raised no
complaints concerning the upstairs tenant.
7
49. Paragraph 22 of the lease precludes any claim by the
Plaintiffs that they were provided with any oral assurance,
warranty, promise or representation concerning the nature of the
upstairs tenant as against the Defendant Yanoviak.
WHEREFORE, Defendant John J. Yanoviak, Jr., respectfully
requests this Honorable Court to dismiss the within Complaint.
Respectfully submitted,
MARC ROBERTS, ESQUIRE
ID No. 34355
Attorney for Defendant Yanoviak
149 East Market Street
York, PA 17401
717/843-1639
8
06/26/2014 15:48 7177742267
Jur, 25. 2014 6:05PM Law Office
PAGE 01/01
No.9680 P, 11
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ALBERT I. JACOBS III, . No. 14-3147
MICHELLE S. JACOBS and s
SNAZZY GIRAFFE, LLC, Plaintiffs Civil Action - Law
Vs.
JOHN J. YANOVIAK, JR., DREW R.
BOBINCHECK and LANDMARK COMMERCIAL :
REALTY, INC., Defendants
VERIFICATION
I, JOHN J. YANOVIAK, JR., do hereby verify that the facts set
forth in the foregoing pleading are true and correct to the best of
my personal knowledge or information and belief, and that any false
statements herein are made subject to the penalties of Section 4904
of the Crimes Code (18 Pa.C.S. Sec. 4904) rel_ ing to unsworn
falsification to authorities.
Date:
r.�
JO:' J. YANOVIAK, JR.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ALBERT I. JACOBS III,
MICHELLE S. JACOBS and
SNAZZY GIRAFFE, LLC, Plaintiffs
vs.
JOHN J. YANOVIAK, JR., DREW R.
BOBINCHECK and LANDMARK COMMERCIAL :
REALTY, INC., Defendants
No. 14-3147
Civil Action - Law
CERTIFICATE OF SERVICE
I, MARC ROBERTS, ESQUIRE, attorney for Defendant Yanoviak,
hereby certify that I have on the 27th day of June , 2014,
served the attached Answer and New Matter by first class mail,
postage prepaid, upon the persons and to the addresses indicated
below:
Dennis J. Shatto, Esquire
828 Limekiln Road
New Cumberland, PA 17070
Attorney for Plaintiffs
Drew R. Bobincheck, Defendant
22 South 17th Street
Camp Hill, PA 17011
Landmark Commercial Realty, Inc., Defendant
20 Erford Road
Lemoyne, PA 17043
MARC ROB S, ESQUIRE
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
of CIL irabrrE4n
OFFICE OF THE SHERIFF
r ;LEL, Clr
. THE {'RO T H0NO.1 i,,c
2214 JUL I I 41110: 19
CUMBERLAND COUNTY
PENNSYLVANIA
Albert I Jacobs, III (et al.)
vs.
John J Yanoviak, Jr. (et al.)
Case Number
2014-3147
SHERIFF'S RETURN OF SERVICE
05/30/2014 11:30 AM - Deputy William Cline, being duly sworn according to law, served the requested Writ of
Summons by handing a true copy to a person representing themselves to be Lynn Breakfield, Office
Assistant, who accepted as "Adult Person in Charge" for Drew Robert Bobinche;k at 20 Erford Road,
East Pennsboro, Lemoyne, PA 17043.
LIAM CLINE, DEPUTY
05/30/2014 11:30 AM - Deputy William Cline, being duly sworn according to law, served the requested Writ of
Summons by handing a true copy to a person representing themselves to be Lynn Breakfield, Office
Assistant, who accepted as "Adult Person in Charge" for Landmark Commerical Realty, Inc. at 20 Erford
Road, East Pennsboro, Lemoyne, PA 17043.
I M CLINE, DEPUTY
06/20/2014 03:17 PM - Deputy Shawn Harrison, being duly sworn according to law, served t
Summons by handing a true copy to a person representing themselves t
manager, who accepted as "Adult Person in Charge" for John J Yanovi
Lemoyne Borough, Lemoyne, PA 17043.
equested Writ of
Durantine, office
Market Street Rear,
SH
SHERIFF COST: $132.81 SO ANSWERS,
ON, DEPUTY
June 30, 2014 RONNY R ANDERSON, SHERIFF
(c) CountySuite Sheriff, Teleosoft, Inc.
O'CONNOR KIMBALL LLP
By: Glen D. Kimball, Esquire
Attorney Identification No. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400
gkimball(aokllp.com
Our File No. 992-0995
Attorney for Defendants, Drew R. Bobincheck
and Landmark Commercial Realty, Inc.
Albert I. Jacobs III, Michelle S. Jacobs and Snazzy
Giraffe, LLC
v.
John J. Yanoviak, Jr., Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 14-3147
ENTRY OF APPEARANCE
C._
co
TO THE PROTHONOTARY: r
Kindly enter my appearance on behalf of Defendants, Drew R. Bobincheck and Landmark Cornmercial
Realty, Inc., in the above -captioned matter.
By:
Date: July 15, 2014
O'CONNOR KIMBALL LLP
A 'v
Glen D. Kimball, Esquire
Attorney Identification No. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Attorney for Defendants, Drew R. Bobincheck
and Landmark Commercial Realty, Inc.
O'CONNOR KIMBALL LLP
By: Glen D. Kimball, Esquire
Attorney Identification No. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400
gkimball(a,okllp.com
Our File No. 992-0995
Attorney for Defendants, Drew R. Bobincheck
and Landmark Commercial Realty, Inc.
Albert I. Jacobs III, Michelle S. Jacobs and Snazzy
Giraffe, LLC
v.
John J. Yanoviak, Jr., Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 14-3147
CERTIFICATE OF SERVICE
I, Glen D. Kimball, Esquire, hereby certify that a true and correct copy of the within Entry of
Appearance was served on this day via U.S. Mail, First Class upon the following counsel of record:
Dennis J. Shatto, Esquire
828 Limekiln Road
New Cumberland, PA 17070
Attorney for Plaintiffs, Albert 1 Jacobs III,
Michelle S. Jacob 's and Snazzy Giraffe, LLC
Date: July 15, 2014
Marc Roberts, Esquire
149 East Market Street
York, PA 17401
Attorney for Defendant John J. Yanoviak, Jr.
O'CONNOR KIMBALL LLP
By: 4 h7
Glen D. Kimball, Esquire
Attorney Identification No. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Attorney for Defendants, Drew R. Bobincheck
and Landmark Commercial Realty, Inc.
Dennis J. Shatto, Esquire
Pa. Attorney ID 25675
828 Limekiln Road
New Cumberland, PA 17070
Tel. 717-547-6384
Fax 717-547-6389
E-mail: dennisshatto@hotmail.com
Attorney for Plaintiff
C
20/4 JU(
Pfri
C0/167)
FFA�S �t�C,0 , �G
ALBERT I. JACOBS, III,
MICHELLE S. JACOBS and
SNAZZY GIRAFFE, LLC,
Plaintiffs
vs.
JOHN J. YANOVIAK, JR., DREW
R. BOBINCHECK and LANDMARK
COMMERCIAL REALTY, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 14-3147
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
REPLY TO NEW MATTER FILED BY DEFENDANT YANOVIAK
44. Denied. The noise and vibration has resulted in numerous
inquiries by customers
and substantially interferes with
Plaintiffs' use and enjoyment of the property.
It is denied that
it is standard or customary for a judo instruction business to be
located directly above a retail use. The use which generates the
noise and vibration is not consistent with office and retail uses,
and the noise and vibration is not reasonable.
45. Denied. Paragraphs 13 through 18 of the Complaint are
herein incorporated and restated.
46. The first sentence is admitted. The second sentence is
denied. There was no existing soundproofing to which to add.
Defendant did not offer to do anything to control the noise and
vibration. Plaintiffs had no duty, contractual or otherwise, to
take remedial measures at their own expense. It is denied that
they failed to mitigate their damages.
47. Denied. This statement is irrelevant.
48. Denied. The "conflict" is not minimal. There are times
when both businesses are operating. Moreover, Plaintiffs are
prevented from extending hours of operation. No other tenant is
"similarly situated." Whether or not other tenants have complained
is irrelevant.
49. The lease speaks for itself. Moreover, this statement is
in the nature of a conclusion of law to which no response is
required.
WHEREFORE, Plaintiffs demand judgment against Defendant
Yanoviak as requested in the Complaint.
Respectful 3.ubmitted,
Denn s . Shatto, Esquire
PA Attorney ID 25675
828 Limekiln Road
New Cumberland, PA 17070
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
I, DENNIS J. SHATTO, hereby certify that on this day, I served
a true and correct copy of the foregoing document upon the persons
and entities indicated below, by depositing same in the United
States mail, first class postage prepaid, addressed as follows:
Marc A. Roberts, Esquire
149 E. Market St.
York, PA 17401
Glen D. Kimball, Esquire
Two Penn Center Plaza
1500 JFK Blvd., Ste.1100
Philadelphia, PA 19102-1730
Dated: J 2.42/4/
Dennis J. Shatto
PA Attorney ID 25675
828 Limekiln Road
New Cumberland, PA 17070
(717)547-6384
O'CONNOR KIMBALL LLP
By: Glen D. Kimball, Esquire
Attorney Identification No. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400
gkimball@okllp.com
Our File No. 992-0995
+y t
7014A rG+18 PM I.
CUNBERL A ND COIN
PENNSYLVANIA
Albert I. Jacobs III, Michelle S. Jacobs and Snazzy
Giraffe, LLC
v.
John J. Yanoviak, Jr., Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
Attorney for Defendants
Drew R. Bobincheck and
1 } Landmark Commercial Realty,
Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 14-3147
NOTICE TO PLEAD
Pursuant to the Cumberland County local rules, you are hereby notified to file a written
response to the enclosed New Matter of Defendants, Drew R. Bobincheck and Landmark
Commercial Realty, Inc. within twenty (20) days from the service hereof or judgment may be
entered against you by the Court.
By:
O'CONNOR KIMBALL LLP
( qA,--N /2 . Ki(zz/1190q)
Glen D. Kimball, Esquire
Attorney Identification No. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Attorney for Defendants, Drew R.
Bobincheck and Landmark Commercial
Realty, Inc.
O'CONNOR KIMBALL LLP
By: Glen D. Kimball, Esquire
Attorney Identification No. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400
gkimballAokllp.com
Our File No. 992-0995
Albert I. Jacobs III, Michelle S. Jacobs and Snazzy
Giraffe, LLC
v.
John J. Yanoviak, Jr., Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
Attorney for Defendants
Drew R. Bobincheck and
Landmark Commercial Realty,
Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 14-3147
ANSWER AND NEW MATTER OF DEFENDANTS, DREW R. BOBINCHECK AND
LANDMARK COMMERICAL REALTY, INC. TO PLAINTIFFS' COMPLAINT
AND NOW come the Defendants, Drew R. Bobincheck ("Bobincheck") and Landmark
Commercial Realty, Inc. ("Landmark"), by and through their attorneys, O'Connor Kimball LLP,
and as and for their Answer to the Plaintiffs Complaint, with New Matter, in the above -
captioned matter state:
1. Denied. After reasonable investigation, the Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in
paragraph 1 of the Plaintiffs Complaint. Therefore, the averments of Paragraph 1 are denied,
and strict proof thereof is demanded at trial.
2. Admitted in part. Denied in part. It is admitted that Snazzy Giraffe, LLC is a
Pennsylvania Limited Liability Company. After reasonable investigation, the Answering
Defendants are without knowledge or information sufficient to form a belief as to the truth or
falsity of the remaining allegations in paragraph 2 of the Plaintiffs' Complaint. Therefore, the
1
averments of Paragraph 2 which are not admitted are denied, and strict proof thereof is
demanded at trial.
3. Denied. After reasonable investigation, the Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in
paragraph 3 of the Plaintiff's Complaint. Therefore, the averments of Paragraph 3 are denied,
and strict proof thereof is demanded at trial.
4. Denied as stated. It is admitted that defendant Yanoviak is the owner of real
estate and improvements located at 326 Market Street, Lemoyne, PA.
5. Admitted.
6. Admitted in part. Denied in part. It is admitted that that Bobincheck is a real
estate sales person licensed by the Commonwealth of Pennsylvania. The remainder of the
allegations in paragraph 6 of the Plaintiffs' Complaint are denied, since Bobincheck, at all times
material hereto, was an independent contractor affiliated with Landmark. Therefore, the
averments of paragraph 6 which are not admitted are denied, and strict proof thereof is demanded
at trial.
7. Admitted.
8. Denied as stated. Landmark is a real estate brokerage whose broker of record is
licensed by the Commonwealth of Pennsylvania. It is admitted that pursuant to a lease listing
agreement between Landmark and Defendant Yanovik, Landmark was given the exclusive right
to lease property owned by Yanovik as his agent and, pursuant to the listing agreement
Landmark was to engage in efforts to find a tenant for the property. Therefore, the averments
of paragraph 8 which are not admitted are denied, and strict proof thereof is demanded at trial.
9. Denied. The allegations in paragraph 9 are denied since Bobincheck, at all times
2
material hereto, was an independent contractor affiliated with Landmark. Therefore, the
averments of paragraph 9 are denied, and strict proof thereof is demanded at trial.
10. Denied. After reasonable investigation, the Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in
paragraph 10 of the Plaintiffs' Complaint. Therefore, the averments of Paragraph 10 are denied,
and strict proof thereof is demanded at trial.
11. Admitted.
12. Admitted.
13. Admitted in part. Denied in part. It is admitted that the Plaintiffs were provided
with a copy of a brochure that was prepared by Landmark. The remainder of the allegations of
paragraph 13 of the Plaintiffs' Complaint are denied, since the brochure, being in writing,
contains terms that speak for themselves and the Answering Defendants specifically and
expressly deny any attempt by the Plaintiffs to characterize or define said terms. Therefore, the
averments of paragraph 13 which are not admitted are denied, and strict proof thereof is
demanded at trial.
14. Denied. After reasonable investigation, the Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in
paragraph 14 of the Plaintiff's Complaint. Therefore, the averments of Paragraph 14 are denied,
and strict proof thereof is demanded at trial.
15. Admitted in part. Denied in part. It is admitted that Bobincheck showed the
Plaintiffs the second floor space. The remainder of the allegations in paragraph 15 of the
Plaintiffs' Complaint are denied as these allegations refer to how the second floor space appeared
to the plaintiffs and these allegations are therefore impossible for Answering Defendants to
3
answer. Therefore, the averments of paragraph 15 which are not admitted are denied, and strict
proof thereof is demanded at trial.
16. Denied as stated. While it is admitted that Bobincheck told the Plaintiffs that the
second floor space would be leased for office use, Bobincheck gave the Plaintiffs no oral or
written warranties or promises that the second floor space would be used as office space and no
such warranties or promises appear in the Lease. By way of further answer, Plaintiffs were free
to negotiate any covenants or conditions restricting the use of the second floor space, but failed
to do so and no such covenants or conditions appear in the Lease. Therefore, the averments of
paragraph 16 that are not admitted are denied and strict proof thereof is demanded at trial.
17. Admitted in part. Denied in part. It is admitted that Plaintiffs and Defendant
Yanoviak entered into a Lease agreement. The remainder of the allegations of paragraph 17 of
the Plaintiffs' Complaint are denied, since these allegations refer to a Lease agreement which
contains written terms that speak for themselves and the Answering Defendants specifically and
expressly deny any attempt by the Plaintiff to characterize or define said terms. Therefore, the
averments of paragraph 17 which are not admitted are denied, and strict proof thereof is
demanded at trial.
18. Denied. Answering Defendants incorporate by reference their response to
paragraph 17, above, as fully as if set forth herein at length. Therefore, the averments of
Paragraph 18 are denied, and strict proof thereof is demanded at trial.
19. Denied. After reasonable investigation, the Answering Defendants are without
knowledge or information sufficient to form a belief as to the date Plaintiffs learned that
Answering Defendants had leased a portion of the second floor space to the tenant Judo. By way
of further answer, upon information and belief, only approximately four feet of lateral space
4
leased to the Judo tenant is directly above the rear end portion of plaintiffs' downstairs business.
Therefore, the averments of Paragraph 19 are denied, and strict proof thereof is demanded at
trial. COUNT I — CONTRACT
Plaintiffs v. Defendant Yanoviak
20. The Answering Defendants incorporate by reference their responses to the
foregoing paragraphs of the Plaintiffs' Complaint, as fully as if said responses were herein set
forth at length.
21-26. The averments in paragraphs 21 through 26 of the Plaintiffs' Complaint are
directed to a party other than Answering Defendants and no response is therefore required.
WHEREFORE, Answering Defendants demand that judgment be entered in their favor
and against the Plaintiffs.
COUNT II — CONTRACT
Plaintiffs v. Defendant Yanoviak
27. The Answering Defendants incorporate by reference their responses to the
foregoing paragraphs of the Plaintiffs' Complaint, as fully as if said responses were herein set
forth at length.
28-36. The averments in paragraphs 28 through 36 of the Plaintiffs' Complaint are
directed to a party other than Answering Defendants and no response is therefore required.
WHEREFORE, Answering Defendants demand that judgment be entered in their favor
and against the Plaintiffs.
5
COUNT III — FRAUD
Plaintiffs v. All Defendants
37. The Answering Defendants incorporate by reference their responses to the
foregoing paragraphs of the Plaintiffs' Complaint, as fully as if said responses were herein set
forth at length.
38. Denied. It is specifically denied that any representations made by Answering
Defendants that the second floor would be leased for, or was available as office space were either
false or material misrepresentations of fact. By way of further answer, Answering Defendants
had, in fact, listed and marketed the second floor as office space and therefore, at the time these
representations were made Answering Defendants had a good faith belief that the second floor
would ultimately be leased for office space. However, at no time did the Answering Defendants
provide the Plaintiffs with any warranties or promises that the second floor would be used as
office space, nor were any such warranties or promises required by the Plaintiffs. Answering
Defendants, at all times material hereto, performed their services in good faith, with prudence,
reasonableness and integrity, and within the applicable professional standards of care.
Therefore, the averments of Paragraph 38 are denied, and strict proof thereof is demanded at
trial.
39. Denied. It is denied that Answering Defendants owed the Plaintiffs any duty to
identify potential lessees of the second floor space. Answering Defendants, at all times material
hereto, performed their services in good faith, with prudence, reasonableness and integrity, and
within the applicable professional standards of care. Therefore, the averments of Paragraph 39
are denied, and strict proof thereof is demanded at trial.
6
40. Denied. To the extent that the averments of paragraph 40 of the Plaintiffs'
Complaint contain conclusions of law, these allegations are deemed denied under the
Pennsylvania Rules of Civil Procedure and no response is required. To the extent the averments
of paragraph 40 contain allegations of fact, it is denied that the Plaintiffs justifiably relied on any
representations made by the Answering Defendants as to the intended use of the second floor
space as Answering Defendants gave the plaintiffs no warranties or promises as to the use of the
second floor and no such covenants, conditions, warranties or promises were negotiated by
plaintiffs and included in the Lease. By way of further response, paragraph 22 of the Lease
states that the Lease "contains all of the representations and promises made by either of the
parties to the other for the purposes contained herein ..." and paragraph 22 further precludes the
Plaintiffs from relying upon "oral or written claims, warranties, promises or representations other
than those expressly set forth herein." Therefore, the averments of Paragraph 40 are denied, and
strict proof thereof is demanded at trial.
41. Denied. After reasonable investigation, the Answering Defendants are without
knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in
paragraph 41 of the Plaintiffs Complaint and these allegations are therefore denied. By way of
further answer, if a use restriction for the second floor space was a material condition to the
Lease transaction, the Plaintiffs were free to negotiate same, but failed to do so. Answering
Defendants, at all times material hereto, performed their services in good faith, with prudence,
reasonableness and integrity, and within the applicable professional standards of care.
Therefore, the averments of Paragraph 41 are denied, and strict proof thereof is demanded at
trial.
7
42. Denied. After reasonable investigation, the Answering Defendants are without
knowledge or information sufficient to form a belief as to damages alleged to have been incurred
by the Plaintiffs and therefore these allegations are denied. By way of further response, to the
extent damages are proven, Answering Defendants specifically deny that the Plaintiffs incurred
any such damages as a result of the conduct of Answering Defendants. To the contrary, any
damages incurred by the Plaintiffs, if proven, resulted from the Plaintiffs' own conduct,
specifically their failure to negotiate and include in the Lease any covenants or conditions
restricting the use of the second floor space. Answering Defendants, at all times material hereto,
performed their services in good faith, with prudence, reasonableness and integrity, and within
the applicable professional standards of care. Therefore, the averments of Paragraph 42 are
denied, and strict proof thereof is demanded at trial.
43. Denied. After reasonable investigation, the Answering Defendants are without
knowledge or information sufficient to form a belief as to damages alleged to have been incurred
by the Plaintiffs and therefore, these allegations are denied. Answering Defendants, at all times
material hereto, performed their services in good faith, with prudence, reasonableness and
integrity, and within the applicable professional standards of care. Therefore, the averments of
Paragraph 43 are denied, and strict proof thereof is demanded at trial.
WHEREFORE, Answering Defendants demand that judgment be entered in their favor
and against the Plaintiffs.
8
NEW MATTER
44. The Answering Defendants incorporate by reference their responses to the
foregoing paragraphs of the Plaintiffs' Complaint, as fully as if said responses were herein set
forth at length.
45. Paragraph 22 of the Business Property Lease Agreement ("Lease") between the
Plaintiffs and co-defendant Landlord John Yanoviak states in full:
ENTIRE AGREEMENT
This Lease contains all of the representations and promises made by either of the parties
to the other for the purposes contained herein, and supersedes any and all prior agreements and
negotiations between them. There are no oral or written claims, warranties, promises or
representations other than those expressly set forth herein. Nothing concerning this Lease may
be changed unless reduced to writing and signed by both the parties hereto:
A true and correct copy of the Lease is attached hereto and marked as Exhibit "A".
46. Per the express language of Paragraph 22, the Lease is an integrated contract
which contains all of the representations and promises made by the parties to the contract and
Plaintiffs are therefore precluded under the Parole Evidence Rule from relying on any "oral or
written claims, warranties, promises or representations other than those expressly set forth [in the
Lease Agreement]", including any representations made by the Answering Defendants.
47. The Lease contains no warranties, promises or representations which restrict a
tenant's use of the second floor space.
48. The Answering Defendants gave no oral or written warranties or promises to the
9
Plaintiffs as to any potential tenant's use of the second floor space and no such warranties or
promises were required by the Plaintiffs.
49. The Plaintiffs' claims, if any are barred or diminished by the proper application of
the Parole Evidence Rule.
50. The Plaintiffs were free to negotiate any covenants or conditions in the Lease
restricting a potential tenant's use of the second floor space, but failed to do so and Plaintiffs are
therefore responsible for their own actions and/or failure to act.
51. The Plaintiffs' claims are barred or limited by virtue of the integrated contract
governing the Lease and the Plaintiffs' failure to negotiate covenants and conditions material to
the Lease transaction.
52. Any representations made by Answering Defendants that the second floor would
be leased for, or was available as office space were neither false nor material misrepresentations
of fact. Answering Defendants had, in fact, listed and marketed the second floor as office space.
Accordingly, at the time the representations were made, Answering Defendants had a good faith
belief that the second floor would ultimately be leased for office space. However, at no time did
the Answering Defendants provide the Plaintiffs with any warranties or promises that the second
floor would be used as office space.
53. It is denied that the Plaintiffs justifiably relied on any representations made by the
Answering Defendants as to the intended use of the second floor space as Answering Defendants
gave the plaintiffs no warranties or promises as to the use of the second floor and no such
covenants, conditions, warranties or promises were negotiated by Plaintiffs and included in the
Lease.
10
54. Answering Defendants committed no fraud.
55. The Answering Defendants performed their assigned duties in a professional
manner and did not deviate from any applicable standard of care related to real estate agents
and/or brokers at any time.
56. The Answering Defendants owed the Plaintiffs no duty to disclose the identity of
any potential tenant to any other units in the building.
57. Plaintiffs' alleged business difficulties are not related to any actions or inactions
on the part of Answering Defendants.
58. Plaintiffs' alleged business difficulties are unrelated to any noise or vibration
from the Judo tenant.
59. Any effect that the Judo tenant has on the Plaintiff's business is non-existent or
insubstantial due to non -intersecting hours of operation when the upstairs judo activities take
place and the Plaintiffs' downstairs business is in operation and due to the fact that, upon
information and belief only approximately four feet of lateral space occupied by the Judo tenant
is directly above the rear end portion of Plaintiffs' downstairs business.
60. Any damages incurred by the Plaintiffs, if proven, resulted from the Plaintiffs'
own conduct, specifically their failure to negotiate and include in the Lease any covenants or
conditions restricting the use of the second floor space.
61. Plaintiffs have failed to mitigate their damages as, upon information and belief,
the Landlord offered to install soundproofing material at Plaintiffs' expense, but Plaintiffs
11
declined and Landlord subsequently offered to terminate the Lease at no penalty to the Plaintiffs,
but Plaintiffs again declined.
62. The Plaintiffs' Complaint fails, in whole or in part, to state a claim upon which
relief can be granted.
63. The Plaintiffs' claims, if any, are barred, in whole or in part, by the applicable
statute of limitations.
64. The Plaintiffs' claims, if any, are barred by the Plaintiffs' voluntary assumption of
the risk.
65. The Plaintiffs' claims, if any, are barred by the Plaintiffs' contributory
negligence.
66. The Plaintiffs' claims, if any, are barred, in whole or in part, by the doctrine of
estoppel.
67. The Plaintiffs' claims, if any, are barred by the principles of waiver.
68. The Plaintiffs' claims, if any, are barred by the equitable doctrine of laches.
69. The Plaintiffs' causes of action, if any, are barred or limited by the Pennsylvania
Comparative Negligence Act, 42 Pa.C.S.A. § 7102, et seq., if determined to be applicable.
70. The Plaintiffs' damages, if any, were the fault of other persons or entities over
whom the Answering Defendants have no authority or right of control.
71. The Plaintiffs' claims are barred or limited by virtue of waiver in the form of
Plaintiffs' failure to read or understand the documents given to them at various times throughout
12
the lease transaction, including but not limited to the Lease agreement and as a result of
Plaintiffs' failure to make decisions consistent with reasonably prudent persons in their situation
and under their circumstances.
72. The Plaintiffs' claims are barred or limited by virtue of the proper application of
the doctrine of merger.
73. The Plaintiffs' claims are barred or limited by virtue of the proper application of
the economic loss doctrine as applied in the Commonwealth of Pennsylvania.
74. The Plaintiffs' claims are barred or limited by virtue of the doctrine of release.
75. Answering Defendants assert such affirmative defenses as may become available
to them during discovery, which is continuing.
76. At all times material hereto, Answering Defendants acted in a prudent,
reasonable, lawful, and appropriate manner with regard to the Lease.
77. Answering Defendants incorporate all defenses available to them contained in or
arising out of the documents governing the Lease.
78. Answering Defendants breached no duties owed to Plaintiffs.
79. Answering Defendants acted, all times material hereto, in good faith and in
furtherance of the performance of their duties and with prudence, reasonableness, and integrity.
80. Answering Defendants deny that they performed any of their assigned duties in an
improper manner and instead assert that at all times relevant hereto, they properly performed
their duties in a professional manner.
13
81. Plaintiffs' Claims are barred as Answering Defendants' liability, if any, is subject
to their assigned duties as agents and/or brokers regarding the Lease.
82. Plaintiffs' claims are barred by their failure to mitigate damages.
83. Plaintiffs' Lease specifically absolves Answering Defendants of any liability.
84. Plaintiffs' claims, if any, are barred by the proper application of the Principles of
Collateral Estoppel.
WHEREFORE, the Answering Defendants request that judgment be entered in their
favor, and against the Plaintiff
Respectfully submitted,
O'CONNOR KIMBALL LLP
By: l eM, a{ -'l
Glen D. Kimball, Esquire
Attorney Identification No. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Attorney for Defendants, Drew R. Bobincheck
and Landmark Commercial Realty, Inc.
14
O'CONNOR KIMBALL LLP
By: Glen D. Kimball, Esquire
Attorney Identification No. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400
gkimballAokllp.com
Our File No. 992-0995
Albert I. Jacobs III, Michelle S. Jacobs and Snazzy
Giraffe, LLC
v.
John J. Yanoviak, Jr., Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
Attorney for Defendants
Drew R. Bobincheck and
Landmark Commercial Realty,
Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 14-3147
VERIFICATION
1, David Remmel, state that I am a representative of Defendant, Landmark Commercial
Realty, Inc. in the above action and, having read the attached, verify that the within Answer and
New Matter to Plaintiffs' Complaint is based on information provided to counsel which
information has been obtained by counsel in the course of this lawsuit. I am authorized to make
this Verification on behalf of Defendant, Landmark Commercial Realty, Inc. The language and
writing in said Answer and New Matter to the Plaintiffs' Complaint is that of counsel and not to
myself. I verify that I have read the within and that it is true and correct to the best of my
knowledge, information and belief. To the extent that the content of this Answer and New
Matter to the Plaintiffs' Complaint is that of counsel, I have relied upon counsel in taking this
Verification. This Verification is made subject to the penalties of 18 Pa. C.S.A. §4904 relating
to unsworn falsification to authorities.
O'CONNOR KIMBALL LLP
By: Glen D. Kimball, Esquire
Attorney Identification No. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400
gkimballnokllp.com
Our File No. 992-0995
Albert I. Jacobs III, Michelle S. Jacobs and Snazzy
Giraffe, LLC
v.
John J. Yanoviak, Jr., Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
Attorney for Defendants
Drew R. Bobincheck and
Landmark Commercial Realty,
Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 14-3147
VERIFICATION
I; Drew R. Bobincheck, state that I am a Defendant in the above action and, having read
the attached, verify that the within Answer and New Matter to Plaintiffs' Complaint is based on
information provided to counsel which information has been obtained by counsel in the course of
this lawsuit. The language and writing in said Answer and New Matter to the Plaintiffs'
Complaint is that of counsel and not to myself. I verify that I have read the within and that it is
true and correct to the best of my knowledge, information and belief. To the extent that the
content of this Answer and New Matter to the Plaintiffs' Complaint is that of counsel, I have
relied upon counsel in taking this Verification. This Verification is made subject to the penalties
of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities.
O'CONNOR KIMBALL LLP
By: Glen D. Kimball, Esquire
Attorney Identification No. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400
gkimball@okllp.com
Our File No. 992-0995
Attorney for Defendants, Drew R. Bobincheck
and Landmark Commercial Realty, Inc.
Albert I. Jacobs III, Michelle S. Jacobs and Snazzy
Giraffe, LLC
v.
John J. Yanoviak, Jr., Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 14-3147
CERTIFICATE OF SERVICE
I, Glen D. Kimball, Esquire, hereby certify that a true and correct copy of the within Answer and New
Matter to Plaintiffs' Complaint was served on this day via U.S. Mail, First Class and Email upon the following
counsel of record:
Dennis J. Shatto, Esquire
828 Limekiln Road
New Cumberland, PA 17070
Attorney for Plaintiffs, Albert I. Jacobs III,
Michelle S. Jacob's and Snazzy Giraffe, LLC
Date: August 15, 2014
Marc Roberts, Esquire
149 East Market Street
York, PA 17401
Attorney for Defendant John J. Yanoviak, Jr.
O'CONNOR KIMBALL LLP
o.
/Oa(
By:%�
/*K -i
5-vc
G . Kimball, Esquire
Attorney Identification No. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Attorney for Defendants, Drew R. Bobincheck
and Landmark Commercial Realty, Inc.
O'CONNOR KIMBALL LLP
By: Glen D. Kimball, Esquire
Attorney Identification No. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400
gkimball(i)r,okllp.com
Our File No. 992-0995
VII
Or TifE
2014 OCT -6
CUI1EF:RLAJ,:;7
Albert I. Jacobs III, Michelle S. Jacobs and Snazzy
Giraffe, LLC
V.
John J. Yanoviak, Jr., Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
PRAECIPE
Attorney for Defendants
Drew R. Bobincheck and
Landmark Commercial Realty,
Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No, 14-3147
TO THE PROTHONOTARY:
Kindly append the attached Exhibit "A" to the Answer and New Matter of Defendants,
Drew R. Bobincheck and Landmark Commercial Realty, Inc. to the Plaintiffs Complaint, which
was inadvertently omitted from Defendants' pleading filed on August 18, 2014 in the above -
captioned matter.
By:
O'CONNOR KIMBALL LLP
Glen D. Kimball, Esquire
Attorney Identification No. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Attorney for Defendants, Drew R.
Bobincheck and Landmark Commercial
Realty, Inc.
O'CONNOR KIMBALL LLP
By: Glen D. Kimball, Esquire
Attorney Identification No. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400
gkimballAoklIp.com
Our File No. 992-0995
Attorney for Defendants, Drew R. Bobincheck
and Landmark Commercial Realty, Inc.
Albert I. Jacobs III, Michelle S. Jacobs and Snazzy
Giraffe, LLC
v.
John J. Yanoviak, Jr., Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 14-3147
CERTIFICATE OF SERVICE
I, Glen D. Kimball, Esquire, hereby certify that a true and correct copy of the within Praecipe to Attach
was served on this day via U.S. Mail, First Class and Email upon the following counsel of record:
Dennis J. Shatto, Esquire
828 Limekiln Road
New Cumberland, PA 17070
Attorney for Plaintiffs, Albert I. Jacobs III,
Michelle S. Jacob's and Snazzy Giraffe, LLC
By:
Date: October 2, 2014
Marc Roberts, Esquire
149 East Market Street
York, PA 17401
Attorney ,for Defendant John J. Yanoviak, Jr.
O'CONNOR KIMBALL LLP
Glen D. Kimball, Esquire
Attorney Identification Nos. 53024
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Attorney for Defendants, Drew R. Bobincheck
and Landmark Commercial Realty, Inc.
BUSINESS PROPERTY LEASE AGREEMENT
This Business Property Lease Agreement (hereinafter called "Lease") is made and
executed this 24 day of May, 2012, by and between John J. Yanoviak with an address of
324 Market Street -Rear, Lemoyne, Pa. 17043. (hereinafter called "Landlord') and Snazzy
Giraffe, LLC with an address of 326 Market Street, Lemoyne, Pa. 17043 (hereinafter
called 'Tenant").
In consideration of the rents herein stipulated and the covenants and agreements
herein contained, and intending to be legally bound hereby and to bind each of their
respective 'heirs, successors and assigns, the parties do hereby covenant, promise and
agree as follows:
1. LEASED PREMISES
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, that
property, hereinafter called the leased premises, with a street address of:
326 Market Street, Lemoyne, Pa. 17043 and described further as being the following
type of structure:
1800 Square Feet of Office/Retail space (front and middle section of suite).
together with the rights in the Lease for Tenant, Tenant's employees, agents and invitees
of ingress and egress to and from the leased premises from the public thoroughfare ,
together with the following rights of parking and exterior signage:
Parking: Shared Parking in parking lot adjacent to building. Landlord at Landlord's
expense agrees to create lined parking spaces in said lot and to create and install visible
signage at the entrance to the parking lot designating that parking is available for
customers of "The Shops on Market". Landlord agrees to make said improvements prior
to July 25, 2012 so as to have in place prior to Tenant's grand opening in August.
Signs: Signage for the awning at the front of the building shall be provided at the
Tenant's expense in accordance with the requirements of the local
municipality of Lemoyne Borough, and in accordance with any
requirements of any other govemmental body which may regulate
such signage, after application and approval of same at Tenant's
sole expense. Landlord shall, however, assist and cooperate with
Tenant in obtaining any approvals from governmental authorities.
Rear of Suite: Landlord shall provide Tenant with a twenty (20) day first right of refusal
to lease the Rear section of the suite prior to renting to another Tenant. In the event
Tenant declines to exercise the option, Landlord at Landlord's sole expense and prior to
renting Rear section to a tenant, shall create a separate entrance at the side of the
building (with visible signage designating same) to allow tenants of the Rear section and
their customers, .employees, agents, etc. to enter and exit the Rear section without
Exhibit "A"
entering upon Tenant's Leased space. In no event shall customers, employees, agents,
etc. of the tenant of the Rear section enter upon or loiter in Tenant's leased space.
Landlord further agrees not to place any "For Rent" or "For Lease" sign for the Rear
section in front of Tenant's portion of the building/leased space. The parties hereto agree
and understand that such placement in front of Tenant's leased space would negatively
impact Tenant's business. _
2. PERMITTED USE OF LEASED PREMISES •
Tenant shall use the leased premises only for commercial, business purposes
consistent with permitted or specially approved uses under the Zoning Ordinance of the
following local municipality: Lemoyne Borough. Any applications and/or approvals
required by a govemmental municipality or body for Tenant's proposed use shall be •
obtained by Tenant at Tenant's sole expense. Landlord shall, however, assist and
cooperate with Tenant in obtaining any approvals from governmental authorities.
Tenant shall also conduct Tenant's business at all times in accordance with this Lease
and'will maintain a high reputation for the subject property and for Landlord. Tenant shall
not cause waste, damage or injury to the leased premises nor shall Tenant carry on any
unlawful or immoral business, or one which will endanger the buildings from fire or other
hazard.
In addition, Tenant agrees that the leased premises are to be used only for the
following specific business activity unless Landlord agrees in writing to allow another use
or uses:
Use as general retail/office use.
If at any time during the term of this Lease, Landlord determines that Tenant is in
violation of paragraph 2 (Permitted Uses) of the Lease, Landlord shall notify Tenant of
this fact, in writing, and if such violation is not fully cured by Tenant within one (1) week
after receiving such notice from Landlord (or, at Landlord's sole option, a greater time
period as set forth in writing by Landlord may be provided to Tenant to cure this violation),
Landlord may elect to terminate this Lease upon ninety (90) days' written notice to
Tenant. Tenant shall deliver up quiet and peaceable possession of the property at the
expiration of the term of the Lease under this paragraph and/or under any other provision
of this Lease,
Landlord Restriction on Renting to Competing Business
Landlord covenants and agrees during the period of this Agreement not to lease
any part of the building wherein the Leased Premises are located (e.g. the building now
known as the "The Shops on Market") to any business similar to Tenant's or which would
compete with Tenant's business. Landlord further covenants and agrees that the Tenant
shall have giereTigiiferlt of the Leased Premises free from nuisances including by way
of example but not limited to irrirpg_gigLealigre.lxibrati-o'T unreasonable music, smoke,
mold, noxious fumes and repugnant odors. Landlord also covenants and agrees to not
permit any other tenant in the building or any portion or section thereof to be used for
such uses which would/ibePre Wittliiid/.6466Pardize:Tenants ability to use the Leased
Premises as a relairbiisinesil§rollildffil'Velifithipg:and,acteXgoties. Such uses include
but are not limited to the use, manufacturing,,storing and/or sale of pornography, sexually
explicit materials, drugs, alcohol, tobacco, explosive devices, hazardous substances, etc.
3. TERM OF LEASE
The term of this Lease shall be for Three years, with Three- 1 year options. Initial
term commencing on the 1st day of August 2012, and terminating on the last day of
July. 2015, unless extended in writing by the parties pursuant to the terms of this Lease.
Each year of the initial term and any renewal/option years will have a 3% annual increase.
• Rent Free Occupancy Period
Landlord agrees to allow Tenant to occupy (Pre -occupy') the Lease Premises
upon signing of this Agreement through the last day of July, 2012 in order for Tenant to
prepare for its grand opening. Landlord agrees that no rent shall be due during said pre-
occupancy period. As stated in Paragraph 3 above (Term of Lease), rent obligations
shall begin on August 1, 2012, the start of the Initial Lease Term.
If Landlord, for any reason cannot give Tenant possession within five (5) days of
the signing of this Agreement, this Agreement shall automatically terminate on the sixth
(6th) day following the signing of the Agreement with all security deposit monies being
promptly refunded to Tenant and with .no further obligations owing to either party.
Landlord Repairs
Within thirty (30) days of signing this Agreement, Landlord at Landlord's expense
agrees to complete the following to the Tenant's satisfaction:
1.) Remove the existing roll -up fire door.
2.) Replace all stained and damaged ceiling tiles with new tiles in a color and
style that matches the existing ceiling tiles.
3.) Clean the awning on the exterior of the lease premises.
4. RENTAL PAYMENTS
Tenant agrees to pay to Landlord rent of $1615.00 dollars per month for the first
year of this Lease. If the term set forth in paragraph 3 (Term of Lease) of this Lease is
greater than one (1) year, then Tenant agrees to pay to Landlord rent as follows for each
month of these successive years:
Second year: $1663.00 per month
Third year: $1713.00 per month
Options:
Fourth Year $1765.00 per month
Fifth Year. $1818.00 per month
Sixth Year $ 1872.00 per month
Rental payments are payable in advance prior to the 1st day of each month,
starting on the 1st day of August, 2012, and continuing with payments on or before the
same day of each succeeding month, so long as this Lease shall be in effect.
All rental payments, as well as any other payments or amounts due Landlord
under this Lease, are payable by Tenant to Landlord at 324 Market Street -Rear
Lemoyne, Pa. 17043, or at such place as Landlord may from time to time designate in
writing, on or before the date specified in this paragraph.All payments due under this
Lease to Landlord are payable in advance, WiiffOut§:etofiaAkcimtions of any kind, or the
late charges set forth in the next paragraph -may at Landlord's option be applied.
Landlord's appearance at the leased premises and receipt of rent in person at any time
shall not be deemed to be a waiver of any provision of this lease as to that or any
subsequent payment.
The rental payment amount for any partial calendar months that may occur shall
be prorated on a daily basis.
5. LATE CHARGES
Tenant agrees to pay a late charge of ten (10%) percent of the total monthly rental
amount plus ten (10%) percent of any other payments due from Tenant to Landlord
pursuant to the terms of this Lease for payments made after the 5th day of the month (e.g.
5 day grace period).
6. SECURITY DEPOSIT
Tenant agrees to pay to Landlord and has paid at Lease signing a security and
damage deposit of $3230.00 dollars as security for the full and faithful performance by
Tenant of all of the terms, conditions, and covenants of this Lease.
If at any time during the lease term Tenant has failed to maintain the premises
and/or repair any damage to the premises that Tenant is required to maintain and/or
repair pursuant to the terms of this Lease, Landlord shall give Tenant written notice of the
needed maintenance and/or repair and Tenant shall have fifteen (15) days to perform the
maintenance or repair. If after fifteen (15) days of receiving notice Tenant has failed to
make the repairs, Landlord in that event may use any portion of the security deposit to
maintain and/or make such repairs to the leased premises. If Landlord uses any portion
of the security deposit to maintain and/or make such repairs, then Tenant shall provide to
Landlord within one (1) week of receiving written notice of the repairs completed and
costs thereof from Landlord that such maintenance and/or repairs (or a portion of such .
maintenance and/or repairs) have been done, the same amount expended by Landlord in
order to replenish the security deposit to its original amount.
4
This deposit without interest is to be refunded at the end of the term of this Lease,
or the end of any renewal thereof, unless Tenant has not vacated the leased premises or
should be in default, or otherwise be in violation of any of the terms of this Lease, in which
case the security and damage deposit may be utilized and credited against any amount
as may be determined to be due to Landlord under this Lease. Landlord within one (1)
week of applying any portion of the security deposit against Landlord's damages, rent due
or any other damages or costs shall provide Tenant with written notice and an accounting
of the application of the security deposit and if Tenant has vacated the Lease Premises
shall refund to Tenant the balance of the security deposit within said time. If Landlord is
due any additional amount from Tenant under the terms of this Lease after applying the
security deposit to those amounts, then Tenant shall pay the balance due to Landlord
within one (1) week of receiving written notice and an accounting from Landlord of the
application of the security deposit and of the additional amounts due to Landlord under
the Lease, or be liable to Landlord for that additional balance owed and for Landlord's
reasonable attorney's fees and other costs paid by Landlord to obtain, enforce and collect
payment of that balance.
Tenant recognizes and agrees that this deposit cannot be applied as rent in lieu of
any monthly payment, including the last month's rent, and Tenants failure to pay rent on
this basis shall constitute a default in the terms of this Lease.
Except as otherwise permitted by this Lease Agreement, Tenant shall not be
required during the Initial Term of this Agreement or any Renewal or Holdover Term to
provide anyadditional security deposit or any increase thereof.
If Landlord transfers its interest in the Leased Premises during the term of this
Lease, Landlord shall assign the security deposit to the transferee.
Tenant recognizes and agrees that Tenant has inspected the leased premises and
that the premises are clean and in good order and condition, and agrees to maintain the
premises and deliver the same to Landlord in the same condition at the end of this Lease,
less reasonable wear and tear. Tenant shall inspect the premises, and any defect
existing at the execution of this lease shall be confirmed between the parties in writing, or
Tenant shall be barred from any claim that such defect was preexisting at the termination
of the lease.
Tenant shall provide a written notice of any change in Tenant's address by
providing a new physical or street address to Landlord (not a post office box or mail
service). If Tenant fails to provide a valid forwarding address to Landlord within one (1)
week after the earlier of the termination of this Lease or of Tenant vacating the leased
premises, then Tenant waives Tenant's right to receive back any portion of the Security
Deposit not otherwise applied towards an amount due Landlord under this Lease.
Tenant's attention is called to the following items of deficiency upon the conclusion
of the lease, which are provided as Tenant's responsibilities under this Lease, as to
actions that should be taken by Tenant to assure maximum recovery of the security
deposit:
Tenant -damaged items should be repaired prior to vacating, with the advice and
consent of Landlord.
The entire leased premises are to be cleaned. Floors are to be cleaned and, if
applicable, wall to wall carpets are to be shampooed.
All light fixtures should have working bulbs.
All keys, including Tenant made duplicates, are to be returned.
All trash, debris and any Tenant property must be removed.
All rental payments and any other amounts due to Landlord under this Lease must
be current.
A forwarding address must be provided to the Landlord in writing.
7. UTILITIES AND HVAC SYSTEM
Landlord shall pay for utilities, including but not limited to water, electricity
(including exterior lighting), trash removal, and sewer rental charges, and fire insurance
on the building in connection with leased premises.. Landlord covenants and agrees to
remain current on all utility charges and to not cause any interruption of the utilities which
would interfere with Tenant's use of the Lease Premises, except, however, disruption of
utility services due to acts of god, reasonable down time for maintenance, and
circumstances outside of the Landlord's control.
Tenant shall pay for all telephone/cable charges including installation thereof, in
connection with Tenant's occupation of the leased premises. Tenant agrees to and shall
protect and hold harmless Landlord and the leased premises from liability for any and all
such telephone and cable expenses, assessments and charges, together with any
interest, penalties, and/or other sums imposed thereon, and from any sale or other
proceeding to enforce payments thereof.
The HVAC system shall be serviced and maintained by the Landlord at Landlord's
sole expense. At the end of the useful life of the current HVAC system or at such earlier
time as Landlord may elect, Landlord shall replace the HVAC system with a HVAC
system of equivalent size and specifications.
Landlord shall pay for all real estate taxes including but not limited to all general real
estate taxes and special assessments.
6
8. DELIVERY OF POSSESSION OF LEASED PREMISES TO LANDLORD - HOLD
OVER TENANCY
A hold over by Tenant beyond the term of this Lease, without first obtaining from
Landlord a written extension or renewal of either this Lease or a Lease acceptable to
Landlord, shall, at the sole option of Landlord, be deemed a renewal of the Lease on a
month-to-month basis, at a rate equal to the monthly rental amount of the last month of
the current rental term plus Fifteen (15%) percent, with the renewal being subject to all
other provisions contained in this Lease. Either party may terminate the Holdover
Tenancy by giving the other party thirty (30) days written notice. In the alternative,
Landlord may consider Tenant to be in default of this Lease for not vacating the leased
premises at the expiration of the current Lease's term and may exercise any and all
remedies provided for such default under this Lease and/or under law.
9. MAINTENANCE AND REPAIR OF PREMISES, JANITORIAL SERVICE AND
SUPPLIES
Tenant Responsible for Janitorial
Tenant is responsible for the routine cleaning, janitorial service and supplies, and
removal of trash within the Leased Premises. Tenant agrees to maintain a clean, sanitary
and orderly business atmosphere.
Tenant Responsible for Routine/Minor Repairs
Tenant agrees to keep the leased premises in good order and repair. Tenant
further agrees (after consultation with Landlord) to make minor repairs to the doors,
floors, interior walls, ceilings, plumbing fixtures, interior stairways and interior railings
which have become damaged.
Tenant Responsible for Snow Removal on Sidewalk
Tenant shall keep the sidewalk and awning area directly in front of Tenant's
Leased Premises -, clear and free of ice, snow and trash and agrees to assume sole
liability for accidents alleged to have been caused by — conditions relating thereto
Landlord Responsible for Snow Removal of Parking Lot
Landlord shall be responsible for keeping the parking lots, other paved areas and
other sidewalk areas on or about the Leased Premises as well as on or about the Lease
Premises, clear and free of ice, snow, leaves and trash and Landlord agrees to assume
sole liability for and save Tenant harmless for accidents alleged to have been caused by
conditions relating thereto.
7
Landlord Responsible for Maintenance of Parking Lot and Major Systems
Landlord shall be responsible for the general maintenance of the parking lots, sidewalks
and other paved areas on or about the Leased Premises including but not limited to the
repair of any cracks, ridges, potholes or other defective conditions thereon. Landlord
agrees to assume sole liability, for and save Tenant harmless for accidents alleged to
have been caused by conditions relating thereto.
Landlord shall also be responsible for all repairs and maintenance to the:
1.) Mechanical systems (including HVAC (as already state above), electrical,
plumbing and sewage systems) in connection with the Leased Premises;and
2.) Windows, exterior walls, exteriors stairways and exterior railings, awnings
• and exterior overhangs, roof, foundation and structural members in connection
with the Leased Premises.
10. ALTERATIONS, IMPROVEMENTS, ADDITIONS, AND FIXTURES
The premises are leased in their "As Is" condition as of the date of this
lease. All upgrades, repairs, alterations, additions, and/or improvements required to
make the premises ready for occupancy per 1) local or state building codes, 2)
Pennsylvania law, including but not limited to Labor and Industry standards, or 3) Federal
law, including but not limited to standards for access for the disabled, as well as any and
all work required to make the premises suitable for a tenant's general occupancy, or for
this Tenant's particular occupancy, shall be made at the sole expense of the Tenant,
unless it is expressly stated to the contrary in this lease.
Tenant shall not make any alterations, additions, and/or improvements in, to or
about the leased premises unless Landlord consents in writing in advance to such
proposed alterations, additions, and/or improvements. If requested by Landlord, Tenant
shall also submit plans and designs of any proposed alterations, additions,
improvements, fixtures to Landlord for his review prior to approval. If Landlord approves
any such alteration, addition, improvement or fixture based upon Tenants compliance
with any plans or designed submitted to Landlord, Tenant shall strictly adhere to those
plans and/or designs unless Landlord agrees to any change therefrom. Landlord may, in
his sole discretion, impose any condition or limit, including the requiring an increase in the
original security deposit, before agreeing to approve Tenant's request for Landlord's
approval of an alteration, addition, improvement, or installation of a fixture.
With respect to any and all alterations, additions, improvements and/or fixtures
permitted to be installed by Tenant on the leased premises, they shall all upon the
termination of this Lease belong absolutely to Landlord without compensation to Tenant,
free and clear of any and all claims against them by Tenant or any third person, and
Tenant hereby agrees to hold Landlord harmless from any claims that may be made
against such improvements by any third persons. Provided, however, that Landlord shall
have the option, to be exercised within thirty (30) days after expiration of the Lease or
sooner, to require Tenant to remove any or all of such alterations, additions,
improvement, and/or fixtures at Tenant's sole expense by no later than the expiration of
the Lease or within thirty (30) days after receiving notice of such request by Landlord,
whichever is later.
In addition, if Tenant and. Landlord have expressly agreed in writing to allow
Tenant to remove a particular fixture or fixtures installed by Tenant during the term of the
Lease, and if Tenant is not in default with respect to any payments or other duties
required of Tenant pursuant to the Lease, then Tenant shall be permitted to remove that
specified fixtures or fixtures by the termination of the Lease term. Provided, however, that
Tenant shall be solely responsible to repair any damages to the leased premises caused
by such removal by no later than the termination of the Lease term, and provided further
that any such fixture which is not removed by the termination of the Lease term shall be
deemed abandoned by Tenant and governed by the provisions of the preceding
paragraphs of paragraph 10 of this Lease. Any repairs to the leased premises pursuant
to this paragraph shall be made in a careful, workmanlike manner and in compliance with
all applicable federal, state and municipal laws and regulations.
11. SUBLETTING OR ASSIGNMENT
Tenant agrees not to sublet the premises, advertise the premises as available for
rent, or assign this Lease without the written consent of the Landlord, which consent shall
not be unreasonably withheld. If Tenant, in violation of this Lease, sublets the leased
premises or assigns the Lease without Landlord's prior written consent, any money
collected as rent shall be held in trust for the benefit of Landlord and shall constitute
liquidated damages due to Landlord in addition to the rental payments due to Landlord
from Tenant under this Lease, and shall be paid to Landlord within one (1) week of
Tenant receiving the same.
Landlord is expressly given the right to assign any or all of his interest and rights
under the terms of this Lease.
12. INSPECTION OF PREMISES
Landlord, through Landlord or Landlord's agents and employees, maintains the
right to inspect the leased premises at reasonable times during the lease term, and upon
reasonable advance notice to Tenant, provided Landlord, its agents and employees, shall
not unreasonably interfere with Tenant's business on the Leased Premises While, it is
agreed that 24 hours advance oral or written notice shall always constitute reasonable
notice under this section of the Lease, it is further agreed that less notice may be given in
emergency situations or based upon other circumstances which would make less notice
reasonable.
13. DAMAGE TO PREMISES AND PROHIBITION OF ANY NUISANCE
Tenant shall not commit, or allow to be committed, any waste or damage on the
leased premises, nor shall Tenant maintain, commit, or permit the maintenance or
commission of any nuisance on the leased premises.
All damage done to the leased premises by Tenant, Tenant's agents, servants,
employees, visitors or customers, other than damage due to ordinary wear and tear (and
existing conditions), shall be repaired at Tenant's expense and shall be completed within
one (1) week after the earlier of Tenant becoming aware of the need for such repair or
receiving a written request from Landlord to make such repair, and such repair shall be
made to Landlord's satisfaction. Tenant shall promptly consult with Landlord regarding
the nature of any proposed repair if it will alter the leased premises in any manner, and
receive Landlord's approval for such repair before undertaking the same (with the
exception of an emergency repair to a water pipe or similar repair requiring immediate
attention in order to prevent extensive damage to the leased premises).
14. LIABILITY
Tenant shall store Tenant's property in and/or on the leased premises, and shall
occupy the same, at Tenants own risk. Tenant hereby releases Landlord to the full
extent allowed by law from all claims of every kind resulting in loss of life, personal or
bodily injury, and/or property damage, except for claims arising from an intentional act of
the Landlord or Landlord's breach of the covenants or conditions of this Lease Agreement
Landlord shall not be responsible or liable at any time for any loss or damage to Tenant's
equipment, fixtures, merchandise or other property of Tenant Landlord shall not be
responsible or liable to Tenant or to those claiming by, through or under Tenant for any
loss or damage to either the person or property of Tenant that may be occasioned by or
through the acts or omissions of persons occupying adjacent or adjoining premises.
Landlord shall not be responsible for any defect, latent or otherwise, in the leased
premises or in the building of any of the equipment, machinery, utilities, appliances, or
apparatus therein.
Tenant further agrees to release and discharge Landlord, Landlord's agents,
servants or employees, and Landlord's successors or assigns, from any and all liability by
reason of injury, loss or damage to Tenant's employees or property in the premises
caused by fire, the breaking, bursting, stoppage or leakage of any water pipe, gas pipe,
sewer, basin, water closet, steam pipe and drain in any part or portion of the leased
premises, fixtures or building thereon, and from all liability for any injury, loss or damage
to Tenant's property caused by the water, gas, steam, waste and contents of said pipes,
sewers, basins, water closets and drains or from any kind of injury, loss or damage to
Tenant's property that may arise from any other cause on the premises, fixtures or
building thereon unless directly attributable to Landlord's negligence or failure to comply
with Landlord's covenants herein relating to utilities and maintenance of the leased
10
premises.
Tenant shall indemnify Landlord and save Landlord harmless from all suits,
actions, damages, liability and expense (including reasonable attorney's fees and costs)
in connection with the loss of life, personal or bodily injury, personal property damage or
any other damage, injury or loss arising from or out of any occurrence in, upon, or at the
leased premises or any part thereof, or occasioned wholly or in part by any act or
omission of Tenant, Tenant's agents, contractors, employees, servants, invitees, or
licensees, except by any intentional and willful acts by Landlord or its agents or by causes
of action arising from Landlord's breach of the conditions and covenants of this Lease
Agreement Tenant shall, at Tenant's sole expense and cost, defend any and all suits or
actions: (whether just or unjust) which may be brought against Landlord or in which
Landlord may be joined with others upon any such mentioned matter(s) and/or claim(s),
except for claims or causes of actions arising from Landlord's intentional and willful acts
or Landlord's breach of the conditions and covenants of the Lease Agreement. Tenant
agrees to be responsible for any damage to the property of Landlord'which may result
from any use of the leased premises and/or by any act done thereon by Tenant and/or
any person coming or being therein by express or implied license or permission by
Tenant.
15. FIRE AND CASUALTY DAMAGE TO LEASED PREMISES
If the building or other improvements on the leased premises should be damaged
or destroyed by fire, flood, or other casualty, Tenant shall give immediate written notice
thereof to Landlord.
In the event that the leased premises or any buildings or fixtures thereon shall be
totally destroyed or substantially destroyed by fire or other casualty, Tenant must give
Landlord written notice within twenty (20) days of said destruction of Tenant's intent to
cancel and terminate this Lease without further liability on the part of either party; if
Tenant fails to so notify Landlord, then this Lease shall not terminate but in such event
rent shall entirely or proportionately abate in accordance with the following paragraph
hereunder and Landlord agrees to repair, restore or rebuild the portions of the leased
premises, subject to the availability of sufficient insurance proceeds to pay in full such
costs, to its condition (or a substantially equivalent condition) immediately prior to such
damage or destruction with due diligence and within one hundred twenty (120) days after
such damage, and in the event that the leased premises cannot be repaired, restored or
rebuilt within such period, Tenant's sole remedy shall be the right to cancel and terminate
this Lease without further liability on the part of either party.
The rent payable hereunder shall entirely abate in case the leased premises are
substantially destroyed or so damaged as to be rendered untenantable, or abate
proportionately according to the extent of the injury or damage sustained by the premises
if the leased premises is not substantially destroyed but is rendered partially
11
untenantable, until the premises shall have been restored, repaired, or rebuilt as the case
may be, and put in proper condition for use and occupancy.
Landlord shall not be liable to Tenant for any damage, compensation or claim by
reason of inconvenience or annoyance arising from the necessity of making repairs,
alterations or additions to any portion of the premises, the interruption in the use of the
premises or the termination of the Lease by reason of the destruction of the leased
premises.
16. INSURANCE
Tenant, at Tenant's own expense, shall maintain comprehensive public liability and
property damage insurance from a financially sound and reputable insurance carrier in an
amount of not less than One Million Dollars ($1,000,000.00) for loss and/or injury to any
one person from any one accident or occurrence, and not less than Two Million Dollars
($2,000,000.00) for any loss and/or injury in the aggregate from any one accident or
occurrence. Landlord shall be named as an additional insured on Tenant's said
policy of insurance and Tenant shall provide a copy of the insurance policy and
certificate of insurance to Landlord.
In addition, Tenant, at Tenant's own expense, shall maintain fire and extended
coverage insurance on Tenant's fixtures, goods, wares and merchandise in or on the
leased premises, with coverage in an amount of not less than Two Hundred Fifty
Thousand Dollars ($250,000.00), and on the leased premises in an amount of not less
than Five Hundred Thousand Dollars ($500,000.00). Landlord shall be named as an
additional insured on Tenant's said policy of insurance and Tenant shall provide a
copy of the insurance policy and certificate of insurance to Landlord.
Tenant shall also provide proof to Landlord that the said insurance policies
required by this paragraph expressly provide that the policy shall not be cancelled or
altered without Tenant or the insurance company first providing (30) days prior written
notice to Landlord of an intent to cancel or alter the said policies.
Each party shall look first to any insurance in its favor before making any claim
against the other party for recovery of loss or damage resulting from fire or other casualty.
17. DEFAULT AND REMEDIES
Any violation of any term of this Lease by Tenant shall be deemed a default of the
Lease by Tenant. If Tenant should remove or prepare to vacate or remove, or attempt to
vacate or remove from the premises before the expiration of the Lease term or at any
time during the continuance of this Lease, except as permitted via a termination for
convenience or as otherwise permitted under this Lease Agreement, or if Tenant shall be
in default in the payment of any installment of rent, or should there be a violation or
12
default in any of the covenants or conditions herein, and should Tenant fail to remedy
such default within five (5) days of written notice of said default by Landlord to Tenant, or
if Tenant should become insolvent, or make an assignment for the benefit of creditors or
if a petition in bankruptcy is filed by or against Tenant or if proceedings for reorganization
or for composition of creditors under any state or federal law be instituted by or against
Tenant, or if the real or personal property of Tenant shall be sold after levy, then in that
event, rent for the full unexpired portion of the then current term of the Lease, at the rate
which is then due and collectible under the terms of the Lease, shalt immediately become
•due and payable and shall be collectible by distraint or otherwise. In addition to any other
remedy provided by this Lease or by law, Landlord shall also have the further right, in the
event of Tenant's failure to cure any default as provided in this paragraph, to terminate
this Lease, with termination of the Lease by Landlord to be effected by giving notice in
writing to Tenant or to the person then in charge of the leased premises, and without any
right on the part of Tenant to save the forfeiture of the Lease by payment of any sum due
or by other performance of any condition, term or covenant
If Tenant is in default in the payment of rent or with respect to any other term or
condition of this Lease, then in addition to any other right granted to Landlord by this
Lease or applicable law, it is expressly agreed between the parties that should Tenant fail
to remedy such default within five (5) days of written notice of said default by Landlord to
Tenant, thenvpw-Arw, at his option, without additional notice to Tenant, e
tegioSeig'Sliiii.ottliliiiii:Oreides, breaking open any locked doors if necessary to
effect entrance, and remove all persons and property therefrom, without being deemed
guilty or liable of any manner of trespass, since Tenant hereby expressly agrees to grant
this right to Landlord, and without any liability for damages for such entry or for its
manner, and Landlord may then relet the leased premises or any part thereof, for all or
any part of the remainder of the Lease term, to a party satisfactory to Landlord, and at
such monthly rental as Landlord may with reasonable diligence be able to secure, with
such rent collected from this third party to be used to offset rent and other amounts due
from Tenant for the remainder of the Lease term. If Landlord is unable to relet after
reasonable efforts to do so, or should such monthly rental be less than the rental Tenant
was obligated to pay under this Lease, or any renewal thereof, plus the expense of
reletting, then Tenant shall pay the amount of such deficiency to Landlord within one (1)
month of Tenant receiving notice of this deficiency. If Landlord exercises his right to
reenter and take possession of the leased premises pursuant to the terms of this Lease,
then the parties agree that Tenant shall have no right to reenter the leased premises
upon receiving notice or knowledge of Landlord's exercise of this right, and any further
entry by Tenant upon the leased premises after receiving such notice or having
knowledge of Landlord's reentry shall be deemed to be a trespass upon the leased
premises by Tenant.
If Tenant fails to pay by their due date any utilities, expenses, assessments,
insurance premiums, and/or any other charges which are Tenant's responsibility under
13
this Lease, then Landlord may, at his sole option, at any time after their due date pay
some or all of these amounts (including interest, penalties or other sums assessed
because of Tenant's failure to pay such amounts due in a timely manner), and such
amounts paid by Landlord shall become immediately due and payable as rent by Tenant
to Landlord, together with interest at the rate of ten (10) percent per annum from the date
of Landlord's payment of the same until paid by Tenant. Any such payment by Landlord
shall not be deemed to be a waiver of any other rights which Landlord may have under
the provisions of this Lease or as provided by law.
It is expressly agreed that in the event of default by Tenant and Tenants failure to
cure such default in the time provided in this Lease, Landlord shall also have a4i6fron all
goods, chattels, and/or personal property of anydescription belonging to TenariGvhich
areplace in, or become a part of, the leased premises, as security for rent or other sums
due under this Lease to Landlord, and for rent or other sums which are to become due for
the remainder of the current Lease term, which lien shall not be in lieu of or in any way
affect any statutory Landlord's lien given by law, but shall be cumulative thereto; and,
Tenant further grants to Landlord a security interest in all such personal property place in
said leased premises for such purposes. This provision shall not prevent the sale by
Tenant of any merchandise in the ordinary course of business free of such lien to
Landlord. In the event Landlord exercises the option to terminate the Lease and reenter
the leased premises as provided for in this Lease,tga31. Aan jpAnia, yzialonMifirrAS16 of
enan-on the premises and, after giving Tenant one (1) week's written
notice of the time and place of such sale, sell the same at a public or private sale for cash
or on credit, or for such prices and terms as Landlord deems best, with or without having
the property present at such sale. The proceeds of such sale shall be applied first to the
necessary and proper expense of removing, storing and selling such property, then to the
payment of any rent or other amounts due or to become due to Landlord under this
Lease, with the balance, if any, to be paid to Tenant.
All right and remedies of Landlord under this Lease shall be cumulative, and none
shall exclude any other right or remedy at law. Such rights and remedies may be
exercised and enforced concurrently and whenever and as often as occasion therefore
arises.
18. ENFORCEMENT/ATTORNEY FEES/BAD CHECKS
Tenant shall reimburse Landlord for any and all reasonable attorney fees and
other costs and expenses incurred by Landlord in connection with any enforcement action
• taken under this Lease in the event of any default by Tenant or breach of any condition of
the Lease by Tenant. It is agreed that Landlord's minimum reasonable attorney's fees in
the event Landlord brings legal action to recover possession, unpaid rent, or money for
physical damages to the premises, for which the Tenant is found to be liable, is $500.00.
In addition, Tenant shall also reimburse Landlord for any and all reasonable attorney
fees and other costs and expenses incurred by Landlord in connection with the collection
14
of any judgment obtained through any enforcement action taken under this Lease by
Landlord.
Bad checks shall be subject to a $25.00 administrative fee, plus actual bank
charges incurred by Landlord as a result of the bad check, plus Landlord's reasonable
attomey's fees incurred (whether by filing a lawsuit, contacting Tenant, or any other
action) in order to obtain payment of the bad check. It is agreed that Tenant shall, at a
minimum, pay attorney's fees of at least $50.00 if Landlord engages an attomey to give
notice of; or otherwise take any action to collect upon, a bad check.
Ljtdfordhail troki r§g10:000 arty :014 rea.5onableafterneyleeit and
other costs and expenses incurred by Tenant in connection with any action taken under
this Lease in the event of any default or breach of any promises, covenants or conditions
of the Lease by Landlord.
19. EMINENT DOMAIN
In the event that the leased premises or any part thereof is taken by eminent
domain for a public or quasi -public use or condemned, this Lease shall, as to the parts so
taken, terminate as of the date title shall vest in the condemnor and rent shall abate in
proportion to the area of leased space taken or condemned or shall cease if the entire
leased premises is taken. Tenant waives all claims against Landlord by reason of the
condemnation or completed or partial taking of the premises. Such termination of this
Lease Agreement shall, however, be without prejudice to the rights of either party to
recover compensation from the condemning authority or the authority that has completed
the taking (whether a complete or partial taking) for any loss or damage caused by the
condemnation. Neither party shall have any rights in or to any award made to the other
by the condemning authority.
20. SUBORDINATION
The rights and interest of Tenant under this Lease shall be subject and
subordinate to any first mortgage that is on record as of the date hereof.
21. SALE OR RENT SIGN, ACCESS TO SHOW LEASED PREMISES TO
PROSPECTIVE PURCHASERS OR TENANTS
If an agreement has not been signed in writing by all parties to this Lease to
extend or renew the current Lease term, Landlord shall have the right, at any time
beginning sixty (60) days prior to the termination of the Lease's current term, to display a
"For Sale" sign, a "For Rent" sign, or a similar sign upon the leased premises. During this
same sixty (60) day time period before the expiration of the Lease's term, Landlord is
authorized, upon providing 48 hours oral or written notice to Tenant, to grant prospective
purchasers or tenants access to the leased premises to inspect them at reasonable
hours.
15
22. ENTIRE AGREEMENT
This Lease contains all of the representations and promises made by either of the
parties to the other for the purposes contained herein, and supersedes any and all prior
agreements and negotiations between them. There are no oral or written claims,
warranties, promises or representations other than those expressly set forth herein.
Nothing concerning this Lease may be changed unless reduced to writing and signed by
both of the parties hereto:
23. BINDING EFFECT OF LEASE AGREEMENT
The covenants and agreements contained in this Lease are binding upon the
parties hereto and their respective heirs, successors and assigns.
24. NO WAIVER BY LANDLORD
The failure of Landlord to insist, in any one of more instances, upon a strict
performance of any of the covenants in this Lease, or to exercise any option herein
contained, shall not be construed as a waiver or relinquishment for the future of such
covenant or option, that the same shall continue and remain in full force and effect.
The receipt by the Landlord of rent, with knowledge of the breach of any covenant
hereof, shall not be deemed a waiver of such breach, and no waiver by the Landlord of
any provision hereof shall be deemed to have been made unless expressed in writing and
signed by Landlord.
In the event Tenant gives Landlord grounds to recover possession of the property
and permits the same to continue until the actual filing of legal action by Landlord to
recover possession of the premises, the -subsequent payment by Tenant and acceptance
by Landlord of money on account of Tenant's default shall not cure the default in total, or
reinstate the lease, unless it is expressly agreed in writing that the payment shall have
such an effect. This is not a "pay and stay" lease after legal action has been filed to
recover possession.
25. SEVERABILITY AND CONTINUANCE OF VALID PROVISIONS
If any provision of this Lease shall be determined or declared to be void or invalid
in law or otherwise by any court of competent jurisdiction, then only that provision shall be
stricken from this Agreement, and such determination shall not affect any other provisions
of this Lease, all of which other provisions shall remain in full force and effect; and it is the
intention of the parties hereto that if any provision of this Lease is capable of two
constructions, one of which would render the provision void and the other of which would
render the provision valid, then the provision shall have the meaning which renders it
valid.
16
26. HEADING NOT PART OF LEASE
Any headings preceding the text of the paragraphs and/or subparagraphs of th is
Lease are inserted solely for convenience or reference, and shall not constitute a part of
this Lease, nor shall they affect its meaning, construction, or effect.
27. NOTICES AND INTERPRETATION
All notices to be given hereunder by either party (unless expressly stated
elsewhere in this Lease that an oral notice is sufficient) shall be in writing and given to
Landlord or Tenant and shall be sent by certified mail, postage prepaid, addressed to the
party intended to be notified and notice given as aforesaid shall be sufficient service
thereof and shall be deemed given as of the date when deposited in a receptacle
regularly maintained by the United States Postal Service or its successor, to the f011owing
•
addresses:
If to Landlord: John Yanoviak
324 Market Street -Rear
Lemoyne, PA 17043
If to Tenant Snazzy Giraffe, LLC
Attn: Michelle Jacobs
1617 Fox Hollow Road
Mechanicsburg, PA 17055
or to such other addresses as may from time to time be furnished to the parties hereto,
effective upon the receipt of written notice thereof given as set forth above.
All parties acknowledge that they have consulted or have had the opportunity to
consult with legal counsel regarding the terms of this Lease, and Tenant agrees that the
terms of this Lease shall not be construed in Tenant's favor in the event of any dispute
over its meaning or interpretation merely because it has been drafted by Landlord.
28. GOVERNING LAW
The terms and conditions of the Agreement shall be, governed in accordance with
the laws of the Commonwealth of Pennsylvania.
29. WAIVER OF NOTICE TO QUIT
In the event of any default by Tenant or failure of Tenant to vacate at the end of
the Lease term as required, no written or specific Notice to Quit shall be required in
advance of Landlord exercising any remedy provided in this Lease or otherwise by law.
Landlord may bring legal action based upon rights conferred in this lease without fulfilling
any prior notice requirement.
17
30... ACKNOWLEDGEMENT OF LEGAL EFFECT OF LEASE DOCUMENT
. THIS LEASEAS A LEGAL DOCUMENT. ALL-PART1ES TO THIS-LEASE
ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD ALL OF ITS
PROVISIONS. ALL PARTIES TO THIS LEASE ACKNOWLEDGE THAT THEY HAVE
HAD THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL OF THEIR OWN
CHOOSING TO ANSWER ANY QUESTIONS THEYMAY HAVE HAD ABOUT THE.
LEGAL EFFECT OF ANY PROVISIONS OF THIS LEASE BEFORE SIGNING IT.
31. AMOUNT DUE AT LEASE SIGNING
Securitydeposit in the amount of $..130.00 and 1st month's rent are due'at lease
signing.
32. PERSONAL GUARANTY
In the event that this lease is executed in a corporate _capacity, the Landlord
reserves the right to condition Its acceptance as a binding contract between the parties
upon the' addition of the personal guaranty(s) of the individual corporate principle(s) and
spouse(s); which shall be fumished, if and as requested in writing by Landlord, prior to
delivery of possession, and within three (3) days of the date of this lease, If requested,
and not fumished, Landlord may decline to deliver possession and may treat this lease as
null and void.
IN WITNESSWHEREOF, and Intending to be legally bound hereby, the parties
heretahave caused this Lease to be executed the day andyear first above written.
dorr,Lcw'"="
YANOVIAK, Landlorct
SNAZZY GIRAFFE, LLC, Tenant
18
GUARANTY OF PERFORMANCE
Know all men by these presents, that in consideration of the execution of a lease contract
between, John J. Yanoviak, Jr. (hereinafter referred to as Lessor) and Snazzy Giraffe, LLC
(hereinafter referred to as Lessee) which provides for Lessor to provide the use of real property and
certain services to Lessee for a THREE YEAR period in the amount of $ $59,892.00; the
undersigned, with the intent to benefit the Lessee, with whom a common interest is shared, do
hereby guaranty, promise, and agree with Lessor to faithfully pay the obligations required of the
Lessee in the said lease contract, at the time and in the manner therein provided, should performance
on the part of the Lessee not be forthcoming.
Intending to be legally bound hereby, the undersigned have set their hands and seals hereto on the 24th day
of Mav 2012.
r.
(
Mess
If the party signing this guaranty is married, both husband and wife must sign.
O'CONNOR KIMBALL LLP
By: Glen D. Kimball, Esquire
Jasmine C. MonteCarlo, Esquire
Attorney Identification Nos. 53024/201196
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400
gkimball(aokllp.com
Our File No. 992-0995
Attorney for Defendants
Drew R. Bobincheck and
Landmark Commercial Realty,
Inc.
Albert I. Jacobs III, Michelle S. Jacobs and Snazzy
Giraffe, LLC
v.
John J. Yanoviak, Jr., Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 14-3147
CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA TO PRODUCE
DOCUMENTS AND THINGS FOR DISCOVERY
PURSUANT TO Pa. R.C.P. 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to Pa. R.C.P. 4009.22,
Defendants, Drew R. Bobincheck and Landmark Commercial Realty, Inc., hereby certify that:
1) On or about, December 23, 2014, the undersigned served a Notice of Intent to Serve a
Subpoena to Annette C. Means, High Associates, Ltd., upon counsel for the Plaintiff, Dennis J. Shatto,
Esquire, via U.S. First Class Mail and electronic mail;
2) a copy of the Notice of Intent, including the proposed subpoena, is attached to the Certificate
Prerequisite as Exhibit "A";
3) on or about January 7, 2015, Plaintiff's counsel Dennis J. Shatto, Esquire advised the
undersigned that he did not object to the issuance of the Subpoenas and waived the twenty (20) day pre -
service period as set forth in Defendant's Notice of Intent to Serve Subpoenas; and
4) a true and correct copy of the undersigned's e-mail on January 7, 2015, confirming counsel's
waiver of the twenty (20) day pre -service period is attached hereto and marked as Exhibit "B".
Date: January 13, 2015
By:
O'CONNOR KIMBALL LLP
(Xk
Glf D. Kimball, Esquire
Jasmine C. MonteCarlo, Esquire
Attorney Identification Nos. 53024/201196
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Attorneys for Defendants,
Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
11111111111111111111111■ IN mu n■i■■n•noi.■.m....
O'CONNOR KIMBALL LLP
By: Glen D. Kimball, Esquire
Jasmine C. MonteCarlo, Esquire
Attorney Identification Nos. 53024/201196
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400
gkimbaWokllp.com
Our File No. 992-0995
Attorney for Defendants
Drew R. Bobincheck and
Landmark Commercial Realty,
Inc.
Albert I. Jacobs III, Michelle S. Jacobs and Snazzy
Giraffe, LLC
v.
John J. Yanoviak, Jr., Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 14-3147
CERTIFICATE OF SERVICE
I, Jasmine C. MonteCarlo, Esquire, hereby certify that I caused a true and correct copy of the foregoing
Certificate of Prerequisite to Service of a Subpoena to Produce Documents and Things for Discovery to Pa.
R.C.P. 4009.22 was served on this 13th day of January, 2015, via U.S. First Class Mail, postage pre -paid,
upon:
Dennis J. Shatto, Esquire
828 Limekiln Road
New Cumberland, PA 17070
Attorney for Plaintiffs, Albert I. Jacobs III,
Michelle S. Jacob 's and Snazzy Giraffe, LLC
Date: January 13, 2015
By:
Marc Roberts, Esquire
149 East Market Street
York, PA 17401
Attorney for Defendant John J. Yanoviak, Jr.
O'CONNOR KIMBALL LLP
II
Gin D. Kimball, Esquire
Jasmine C. MonteCarlo, Esquire
Attorney Identification Nos. 53024/201196
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Attorneys for Defendants,
Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
r.
..... Noun IN NI -I mil no SII -I ■1 .ii 1E11 •iii WI 1E11 Mil 111ii IN 1111 .I 1
O'CONNOR KIMBALL LLP
By: Glen D. Kimball, Esquire
Jasmine C. MonteCarlo, Esquire
Attorney Identification Nos. 53024/201196
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400
gkimball(a okllp.com
Our File No. 992-0995
Attorney for Defendants
Drew R. Bobincheck and
Landmark Commercial Realty,
Inc.
Albert I. Jacobs III, Michelle S. Jacobs and Snazzy
Giraffe, LLC
v.
John J. Yanoviak, Jr., Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 14-3147
NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS
AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21
Defendants, Drew R. Bobincheck and Landmark Commercial Realty, Inc., intend to serve a Subpoena,
identical to the one attached to this Notice directed to Annette C. Means, High Associates, Ltd.
You have twenty (20) days from the date listed below in which to file of record and serve upon the
undersigned an objection to the Subpoena. If no objection is made, the Subpoena may be served.
Respectfully submitted,
O'CONNOR KIMBALL LLP
By:
Date: December 23, 2014
)7x,o/z
n D. Kimball, Esquire
Jasmine C. MonteCarlo, Esquire
Attorney Identification Nos. 53024/201196
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Attorneys for Defendants,
Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
Albert I Jacobs III, et al.
Plaint IT
vs.
John J. Yanoviak, et al.
t)elendant
File No. 14-3147
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Annene C. Means, High Associates, Ltd. 5000 Ritter Road, Ste. 201, Mechanicsburg. PA 17055
(Name of Person or Entity)
Within twenty (20) days atter service ot'this subpoena. you are ordered by the court to produce the
following documents or things:
Your complete Transaction file concerning the lease of 326 Market Street, Lemoyne, Pa. 17043, including but not
limited to: I) all communications with Michelle S, Jacobs, Albert I. Jacobs, 111, John Yanoviak, Landmark
Commercial Realty. Drew I3obin check, and counsel representing Michelle and Albert Jacobs. 2) all communications
with any personts) that relate to the tease of 326 Market Street, Lemoyne, PA 17043 and negotiations pertaining
thereto: and 3) all documents which refer or relate to the'lease of 326 Market Streit, Lemoyne, Pa. 17043 and
negotiations pertaining'lhereto.
at 1500 JFK Blvd., Ste. 1100, Philadelphia, PA 19102
(Address), r.
You may deliver or mail legible copies of the documents or, produce things requested by this
subpoena. together with the certificate of compliance, to the party making this request at the address listed
above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the
things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days
after its service, the party serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: Michael S. Soule, Esquire
ADDRESS: 1500 OK Blvd Ste 1100
I'hdadelphts. PA 19102
TELEPHONE: 215-564.04OO
SUPREME COURT ID # snuny
ATTORNEY FOR: Drew R. Bobincheck, et d.
Date:
BY TI -IE COURT:
Prothonotary. Civil Division
Seal of the Court Deputy
1
Exhibit B
Michael Soule
From: DENNIS SHATTO [dennisshatto@hotmail.com]
Sent: Wednesday, January 07, 2015 4:18 PM
To: Michael Soule
Subject: RE: Jacobs v. Landmark Commercial Realty, et. al.
Mr. Soule: We will waive the notice period. My clients worked with Annette Means to find a new location.
She was not involved in negotiating the terms of the new lease. My clients worked directly with Casi
Babinchak of Charter Properties.
From: MSoule@okllp.com
To: dennisshatto@hotmail.com
CC: marc@marcrobertslaw.com
Subject: RE: Jacobs v. Landmark Commercial Realty, et. al.
Date: Tue, 6 Jan 2015 17:33:34 +0000
January 6, 2015
Dear Mr. Shatto:
This follows a voicemail message I left for you this morning. We have served you with notices of intent to serve record
subpoenas on Annette Means and Douglas Wampler, the realtor and attorney representing your clients in the 326
Market Street lease transaction. Will you please advise at your earliest convenience as to whether you will waive the
twenty (20) day notice period so that we may go forward and serve the subpoenas. Also, please let me know if you have
heard from your client as to the information sought below. Thank you.
Very truly yours,
Michael S. Soule, Esq.
O'Connor Kimball LLP
Two Penn Center Plaza
Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400 (office)
(215) 564-1973 (facsimile)
msoule@okllp.com
New Jersey Office:
51 Haddonfield Road, Suite 330
Cherry Hill, N.J. 08002
(856) 663-9292 (Office)
(856) 663-6566 (Facsimile)
From: DENNIS SHATTO [mailto:dennisshatto@ hotmail.com]
Sent: Monday, December 22, 2014 4:31 PM
To: Michael Soule
Subject: RE: Jacobs v. Landmark Commercial Realty
1
Mr. Soule: The address of the new location is 104 Walden Way, Mechanicsburg, PA 17050. I will have the
realtor information as soon as I hear from my clients.
From: MSoule@okllp.com
To: dennisshatto@hotmail.com
Subject: Jacobs v. Landmark Commercial Realty
Date: Fri, 19 Dec 2014 16:18:38 +0000
December 19, 2014
Dear Mr. Shatto:
This follows the voicemail messages I left for you yesterday and this morning. Would you please provide us
with the identity of the agent representing your client in the new lease identified in plaintiff's response to
Interrogatory number 55. Please also provide us with the address of the leased premises. Thank you.
Very truly yours,
Michael S. Soule, Esq.
O'Connor Kimball LLP
Two Penn Center Plaza
Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400 (office)
(215) 564-1973 (facsimile)
msoule@oklip.com
New Jersey Office:
51 Haddonfield Road, Suite 330
Cherry Hill,•N.J. 08002
(856) 663-9292 (Office)
(856) 663-6566 (Facsimile)
2
O'CONNOR KIMBALL LLP
By: Glen D. Kimball, Esquire
Jasmine C. MonteCarlo, Esquire
Attorney Identification Nos. 53024/201196
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400
gkimball(a,okllp.com
Our File No. 992-0995
;:.' 1 5 ;11 2
,,, ,Attorney for Defendants
' ` ' Drew`R. Bobincheck and
Landmark Commercial Realty,
Inc.
Albert I. Jacobs III, Michelle S. Jacobs and Snazzy
Giraffe, LLC
v.
John J. Yanoviak, Jr., Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 14-3147
CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA TO PRODUCE
DOCUMENTS AND THINGS FOR DISCOVERY
PURSUANT TO Pa. R.C.P. 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to Pa. R.C.P. 4009.22,
Defendants, Drew R. Bobincheck and Landmark Commercial Realty, Inc., hereby certify that:
1) On or about, December 23, 2014, the undersigned served a Notice of Intent to Serve a
Subpoena to Douglas Walmer, Esquire, upon counsel for the Plaintiff, Dennis J. Shatto, Esquire, via U.S. First
Class Mail and electronic mail;
2) a copy of the Notice of Intent, including the proposed subpoena, is attached to the Certificate
Prerequisite as Exhibit "A";
3) on or about January 7, 2015, Plaintiff's counsel Dennis J. Shatto, Esquire advised the
undersigned that he did not object to the issuance of the Subpoenas and waived the twenty (20) day pre -
service period as set forth in Defendant's Notice of Intent to Serve Subpoenas; and
4) a true and correct copy of the undersigned's e-mail on January 7, 2015, confirming counsel's
waiver of the twenty (20) day pre -service period is attached hereto and marked as Exhibit "B".
By:
Date: January 13, 2015
O'CONNOR KIMBALL LLP
G1 D. Kimball, Esquire
Jasmine C. MonteCarlo, Esquire
Attorney Identification Nos. 53024/201196
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Attorneys for Defendants,
Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
O'CONNOR KIMBALL LLP
By: Glen D. Kimball, Esquire
Jasmine C. MonteCarlo, Esquire
Attorney Identification Nos. 53024/201196
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400
gkimball(a,okllp.com
Our File No. 992-0995
Attorney for Defendants
Drew R. Bobincheck and
Landmark Commercial Realty,
Inc.
Albert I. Jacobs III, Michelle S. Jacobs and Snazzy
Giraffe, LLC
v.
John J. Yanoviak, Jr., Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 14-3147
CERTIFICATE OF SERVICE
I, Jasmine C. MonteCarlo, Esquire, hereby certify that I caused a true and correct copy of the foregoing
Certificate of Prerequisite to Service of a Subpoena to Produce Documents and Things for Discovery to Pa.
R.C.P. 4009.22 was served on this 13th day of January, 2015, via U.S. First Class Mail, postage pre -paid,
upon:
Dennis J. Shatto, Esquire
828 Limekiln Road
New Cumberland, PA 17070
Attorney for Plaintiffs, Albert I. Jacobs III,
Michelle S. Jacob's and Snazzy Giraffe, LLC
By:
Date: January 13, 2015
Marc Roberts, Esquire
149 East Market Street
York, PA 17401
Attorney for Defendant John J. Yanoviak, Jr.
O'CONNOR KIMBALL LLP
C Minh, Qed(C‘
G n D. Kimball, Esquire
Jasmine C. MonteCarlo, Esquire
Attorney Identification Nos. 53024/201196
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Attorneys for Defendants,
Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
Exhibit A
1
O'CONNOR KIMBALL LLP
By: Glen D. Kimball, Esquire
Jasmine C. MonteCarlo, Esquire
Attorney Identification Nos. 53024/201196
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400
gkimball(a,okllp.com
Our File No. 992-0995
Attorney for Defendants
Drew R. Bobincheck and
Landmark Commercial Realty,
Inc.
Albert I. Jacobs III, Michelle S. Jacobs and Snazzy
Giraffe, LLC
v.
John J. Yanoviak, Jr., Drew R. Bobincheck and
Landmark Commercial Realty, Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 14-3147
NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS
AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21
Defendants, Drew R. Bobincheck and Landmark Commercial Realty, Inc., intend to serve a Subpoena,
identical to the one attached to this Notice directed to Douglas Walmer, Esquire.
You have twenty (20) days from the date listed below in which to file of record and serve upon the
undersigned an objection to -the Subpoena. If no objection is made, the Subpoena may be served.
Date: December 23, 2014
Respectfully submitted,
O'CONNOR KIMBALL LLP
qd(i9(14/1/61--
G D. Kimball, Esquire
J. smine C. MonteCarlo, Esquire
Attorney Identification Nos. 53024/201196
Two Penn Center Plaza, Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Attorneys for Defendants,
Drew R. Bobincheck and
Landmark Commercial Realty, Inc.. . .
By:
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND,
Albert 1 Jacobs III, et al.
Plainlilf I ile No. 14-3147
Vs.
John J. Yanoviak, et al.
Defendant
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Douglas Walmer, Esquire,`Keiter & Walmer, PC, 218 W. Governor Rd., Hersey, PA 17033
(Name of Person or Entity) '
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the
- following documents or things:
Your complete file concerning the lease of 326 Market Street, Lemoyne, Pa.
I7043between Michelle S. Jacobs, Albert 1. Jacobs, 111, and John Yanoviak,
1500 JFK Blvd., Ste. 1100, Philadelphia, PA 19102
(Address)
You may deliver or mail legible copies of the docuiricnts ur produce -things requested by this
subpoena. together with the certificate of compliance. to the party making this request at the address listed
above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the
things sought.
If you tail to produce the documents or things required by this subpoena within twenty (20) days
alter its service, the party serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF. THE FOLLOWING PERSON:
NAME: Michael S. Soule. Esquire
ADDRESS: 1500 JFK Blvd. Ste. 1100
Philadelphia, PA 19102
TELEPHONE: 215.564.0400
SUPREME COURT ID # 53201
ATTORNEY FOR: Drew R Uabmcheck, et al.
Date:
, 13Y TI IE COURT:
Prothonotary. Civil Division
Seal of the Court Deputy
Exhibit B
Michael Soule
From: DENNIS SHATTO [dennisshatto@hotmail.com]
Sent: Wednesday, January 07, 2015 4:18 PM
To: Michael Soule
Subject: RE: Jacobs v. Landmark Commercial Realty, et. al.
Mr. Soule: We will waive the notice period. My clients worked with Annette Means to find a new location.
She was not involved in negotiating the terms of the new lease. My clients worked directly with Casi
Babinchak of Charter Properties.
From: MSoule@okllp.com
To: dennisshatto@hotmail.com
CC: marc@marcrobertslaw.com
Subject: RE: Jacobs v. Landmark Commercial Realty, et. al.
Date: Tue, 6 Jan 2015 17:33:34 +0000
January 6, 2015
Dear Mr. Shatto:
This follows a voicemail message I left for you this morning. We have served you with notices of intent to serve record
subpoenas on Annette Means and Douglas Wampler, the realtor and attorney representing your clients in the 326
Market Street lease transaction. Will you please advise at your earliest convenience as to whether you will waive the
twenty (20) day notice period so that we may go forward and serve the subpoenas. Also, please let me know if you have
heard from your client as to the information sought below. Thank you.
Very truly yours,
Michael S. Soule, Esq.
O'Connor Kimball LLP
Two Penn Center Plaza
Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564:0400 (office)
(215) 564-1973 (facsimile)
msoule@okllp.com
New Jersey Office:
51 Haddonfield Road, Suite 330
Cherry Hill, N.J. 08002
(856) 663-9292 (Office)
(856) 663-6566 (Facsimile)
From: DENNIS SHATTO[mailto:dennisshatto@ahotmail.com]
Sent: Monday, December 22, 2014 4:31 PM
To: Michael Soule
Subject: RE: Jacobs v. Landmark Commercial Realty
1
Mr. Soule: The address of the new location is 104 Walden Way, Mechanicsburg, PA 17050. I will have the
realtor information as soon as I hear from my clients.
From: MSoule@okllp.com
To: dennisshatto@hotmail.com
Subject: Jacobs v. Landmark Commercial Realty
Date: Fri, 19 Dec 2014 16:18:38 +0000
December 19, 2014
Dear Mr. Shatto:
This follows the voicemail messages I left for you yesterday and this morning. Would you please provide us
with the identity of the agent representing your client in the new lease identified in plaintiff's response to
Interrogatory number 55. Please also provide us with the address of the leased premises. Thank you.
Very truly yours,
Michael S. Soule, Esq.
O'Connor Kimball LLP
Two Penn Center Plaza
Suite 1100
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 564-0400 (office)
(215) 564-1973 (facsimile)
msoule@okllp.com
New Jersey Office:
51 Haddonfield Road, Suite 330
Cherry Hill, N.J. 08002
(856) 663-9292 (Office)
(856) 663-6566 (Facsimile)
2