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HomeMy WebLinkAbout14-3833'.7 'II.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COSY PENNSYLVANIA czt CIVIL DIVISION — LAW >c, HARRY F. CHRISTIE and BARBARA CHRISTIE Plaintiffs, v. MATTRESS WAREHOUSE OF MECHANICSBURG, LLC Defendants No. 14 - 3833�ivi1TP�171 PETITION FOR PRELIMINARY INJUNCTION And now, comes Harry F. Christie and Barbara Christie by and through their attorney, William Adler, Esquire and respectfully requests that this Honorable Court enter a preliminary injunction pursuant to Rule 1531 of the Pennsylvania Rules of Civil Procedure, and in support thereof, states as follows: 1. Harry F. Christie and Barbara Christie seeks a preliminary injunction against Mattress Warehouse, which is necessary to prevent immediate and irreparable harm to Harry F. Christie and Barbara Christie. 2. Harry F. Christie is an adult individual, residing at 3310 Calle Del Montana, Sedona, AZ 86336. 3. Barbara Christie is an adult individual, residing at 3310 Calle Del Montana, Sedona, AZ 86336. 4. Mattress Warehouse of Mechanicsburg, LLC ("Mattress Warehouse"), is a Pennsylvania limited liability company which is registered to do business in the Commonwealth of Pennsylvania, maintaining its principal place of business at 5517 Carlisle Pike, Mechanicsburg, PA 17050. 4103-'75 Pb rig4 e 3o7853 5. On November 20, 2000, Harry F. Christie and Barbara Christie entered into a lease agreement with Mattress Warehouse to rent the premises at 5517 Carlisle Pike, Mechanicsburg, PA 17050. A true and correct copy of the Lease Agreement is attached hereto as Exhibit A. 6. Section 13 of the Lease Agreement, pertaining to compliance with laws and permits, states the following: "Tenant, at its sole expense, shall comply with all laws, orders and regulations of federal, state and local authorities and with any direction of any public officer or officers, pursuant to the law which shall impose any violation, order or duty upon Tenant, at its sole expense, shall obtain all licenses and permits which shall be required for the conduct of its business within the terms of the Lease." 7. On May 30, 2014, Harry F. Christie, Barbara Christie, and Mattress Warehouse were cited by Assistant Zoning Officer Darrell L. McMillan for displaying a temporary sign without a permit in violation of the Hampden Township Zoning Ordinance. 8. On May 30, 2014, Harry F. Christie, Barbara Christie, and Mattress Warehouse were cited by Assistant Zoning Officer Darrell L. McMillan for displaying an inflatable sign without a permit in violation of the Hampden Township Zoning Ordinance. 9. On June 6, 2014, Mattress Warehouse deployed three tractor-trucks and trailers to block consumer traffic and the sign displays of their neighbors. 10. Also on June 6, 2014, Mattress Warehouse displayed a banner, which covered the sign display of its neighboring business, South Philadelphia Hoagies, located at 5519 Carlisle Pike, Mechanicsburg, PA 17050. 11. Harry F. Christie and Barbara Christie have been informed that Mattress Warehouse intends to deploy these tractor-trucks and trailers again on the weekend of July 4, 2014, risking further citations. 12. Unless Mattress Warehouse is preliminarily enjoined, Harry F. Christie and Barbara Christie will be immediately and irreparably harmed by the deployment of these tractor- trucks and trailers and any subsequent violations of Hampden Township Zoning Ordinance. 13. Mattress Warehouse will not be harmed if it is enjoined in order to comply with Hampden Township Zoning Ordinance. 14. Greater injury will follow from denial of a preliminary injunction than from its issuance. 15. Harry F. Christie and Barbara Christie are likely to succeed on the merits of a Complaint, as the terms of the Lease clearly state that Mattress Warehouse must comply with applicable local ordinances. 16. Balancing the equities in this case favors the issuance of a preliminary and permanent injunction against Mattress Warehouse. WHEREFORE, Harry F. Christie and Barbara Christie respectfully requests this Honorable Court grant the instant Petition and to enter an Order setting forth that: A. Mattress Warehouse is preliminarily enjoined and restrained from deploying tractor-trucks and trailers on any area of the property other than the delivery area in the rear of the property and from posting any signs in violation of the Lease and local ordinances. B. Such other and further relief that this Court deems just and necessary under the circumstances. Respectfully submitted, William L. Adler, Esquire 4949 Devonshire Road Harrisburg, PA 17109 Phone: 717-652-8989 Fax: 717-307-3343 Supreme Court ID: 39844 bal@billadlerlaw.com June 27, 2014 ,LEA SE THIS LEASE is made as of the 20th day of November 2000 by and between HARRY F. CHRISTIE and BARBARA CHRISTIE (collectively, the "Landlord"), and Mattress Warehouse of Mechanicsburg, LLC. WITNESSETH: WHEREAS, Landlord is the owner of a one story building of 14,400 sq. ft. ("Building") and that certain tract of land situate and known as 5517-19 Carlisle Pike, Mechanicsburg, Pennsylvania 17055 upon which the Building is constructed; and WHEREAS, the parties hereto age that Landlord will lease the Demised Premises (hereinafter defined) located a p17 Carlisle Pike Mechanicsburg, PA 17055, to Tenant in accordance with the terms ana conditions set forth herein. NOW, THEREFORE, in consideration of the mutual promises herein contained, and intending to be legally bound hereby, the parties hereto agree as follows: SECTION 1. DEMISED PREMISES Landlord hereby agrees to lease to and Tenant hereby agrees to accept, effective as of ("Commencement Date"), 7200 square feet of space in the Building, known as 5517 Carlisle Pike together with the non-exclusive right to use in common with others, parking areas, driveways and footways, all in the location shown on Exhibit "A" ("Demised Premises). SECTION 2. TERM; RENEWAL TERM: USE (a) The initial term of this Lease ("Term") shall be sixty three (63) months commencing on the ("Commencement Date). Tenant shall be entitled to possession of the Demised Premises on the date that Landlord completes interior alterations listed on Exhibit C ("Possession Date"). Provided that no default has occurred hereunder, Tenant shall have the right to renew this Lease for an additional term of five (5) years ("First Renewal Term") by giving Landlord written notice thereof no later than ninety (90) days prior to the expiration of the Initial Term. Tenant's right to renew this Lease shall expire if Landlord does not receive such notice at least ninety (90) days prior to the expiration of the Initial Term. Provided that no default has occurred hereunder. Tenant shall have the right to renew this Lease for an additional term of five (5) years ("Second Renewal Term") by giving Landlord written notice thereof no later than ninety (90) days prior to the expiration of the First Renewal Term. Term. Tenant's right to further renew this Lease shall expire if Landlord does not receive such notice at least ninety (90) days prior to the expiration of the First Renewal Term. Provided that no default has occurred hereunder, Tenant shall have the right to renew this Lease for an additional term of five (5) years ("Third Renewal Term") by giving Landlord written notice thereof no later than ninety (90) days prior to the expiration of the Second Renewal Term. Tenant's right to further renew this Lease shall expire if Landlord does not receive such notice at least ninety (90) clays prior to the expiration of the Second Renewal Term. For each exercised Renewal Term the Minimum Annual Rent (hereinafter defined) shall be as set forth on Exhibit "B". All other terms and conditions of this Lease shall remain in full force and effect through each exercised Renewal Tenn. (b) The Demised Premises shall be used solely for the purpose of carrying on the business of mattress and bedding sales, demonstrations and servicing and for no other purpose without the written consent of Landlord, which consent shall not be unreasonably withheld. Without limiting the generality of the foregoing, Tenant shall not use the Premises for the generation, manufacture, refining, transportation, treatment. storage or disposal of any hazardous substance or waste or for any purpose which poses a substantial risk of damage to the environment and shall not engage in any activity which would subject Tenant to the provisions of the Federal Comprehensive Environmental Response, Liability and Cleanup Act (42 U.S.C. Section 9601 et seq.), the Federal Water Pollution Control Act (33 U.S.C. Section 1151 et sea.), the Clean Water Act of 1977 (33 U.S.C. Section 1251 et sea.), or any other federal, state or local environmental law, regulation or ordinance. The authorization of the use of the Premises for the business purpose set forth herein shall not constitute a representation by Landlord that such use of the Premises is now or shall continue to be permitted or lawful under applicable laws or regulations. SECTION 3_ MINIMUM ANNUAL RENT: SECURITY DEPOSIT (a) During the term of this Lease, Tenant covenants an• =grees to pay Landlord the rentals provided for in this Lease at the office of dlord at PO Box 7106, Mechanicsburg, Pa 17055, or at such other place andiord may by notice direct, without prior demand therefor and without any led ction or set-off whatsoever, except as provided in this Lease. During the Initial Term of this Lease, the minimum basic annual rental ("Minimum Annual Rent") shall be eighty eight thousand dollars ($88,000.00) payable in equal monthly installments on the first day of each month in the amount of seven thousand three hundred thirty three dollars and thirty three cents ($7,33133). Tenant is to receive 90 days of free rent. All CAM and utility cost accrue on the first of the month or the start of a billing period after possession. During each exercised Renewal Term the Minimum Annual Rent shall be as set forth on Exhibit "B". Any monthly installment of Minimum Annual Rent not received by Landlord on or before the fifth day of the month shall be increased by a late charge of five percent (5%). (b) Tenant shall pay its pro rata share of all real estate taxes for the Building, Tenant shall pay its pro rata share of all property insurance premiums for the Building and its pro rata share of all common area maintenance expenses (including without limitation lawn and property maintenance, parking lot maintenance and common area repairs). Tenants estimated pro rata share shall be eight hundred fifty five dollars and fifty cents ($855.50) payable monthly with each installment of Minimum Annual Rent. Upon reasonable request of Tenant, Landlord shall furnish to Tenant information supporting the amount and type of expenses charged to Tenant under this subsection. A statement of actual expenses for any calendar year will be supplied by April 1st of the next year. Any overage or shortage paid by Tenant will be included in the May 1:t rent payment. Estimated CAM cost will be adjusted by written notice annually, based on previous year's actual expense. (c) Tenant has deposited with Landlord the sum of $16377.66 ("Security Deposit") to be held without interest as security for Tenant's performance of all of the terms hereof. The Security Deposit will be applied to the fourth and fifth month's rent if Tenant has fully complied with all of its obligations hereunder. SECTION 4. IMPROVEMENTS Landlord, at Landlord's expense, shall perform the work described as "Landlord's Work" on Exhibit "C" attached hereto, and Tenant, at Tenant's expense, shall perform the work described as "Tenant's Work" on Exhibit "D". With the exception of the work to be performed by Landlord as set forth above, Tenant is accepting the Demised Premises in AS -IS condition. SECTION 5. UTILITIES Tenant shall be solely responsible for and promptly pay all charges for any separately metered utilities used or consumed in the Demised Premises, and for the cost of janitorial services for the Demised Premises. In no event shall Landlord be liable for an interruption, failure or discontinuance in the supply of any such utilities to the Demised Premises, nor shall there be any reduction or abatement in the Minimum Annual Rent or any additional rent due to such interruption, failure or discontinuance. unless such interruption, failure or discontinuance is a result of an act or omission of Landlord. Water and sewer will be invoiced by Landlord based on the Tenants pro rata share of water consumption to the total consumed. SECTION 6. INDEMNIFICATION OF LANDLORD Tenant shall defend, indemnify and save harmless Landlord against and from all loss, liabilities, penalties, damages, expenses and judgments, including attorney's fees, which may be imposed upon or incurred by or asserted against Landlord or Landlord's fee or reversionary interest in the Demised Premises by reason of any injury or claim of injury to persons or property of any nature and however caused, arising out of the use, occupancy and control of the Demised Premises at any time during the term of this Lease or any extension thereof, including those resulting from any work in connection with any alteration, changes, new construction or demolition. Tenant is hereby subrogated to any rights of Landlord against any other parties whomsoever in connection therewith. Such indemnification shall not extend to any matter against which Landlord is protected by insurance supplied by Tenant. SECTION 7. INSURANCE Tenant, at Tenant's sole expense, shall obtain and maintain throughout the term hereof the following policies of insurance: (a) Fire and extended coverage insurance for all of Tenant's improvements, inventory, fixtures, furnishings and equipment; (b) Comprehensive general public liability insurance on an occurrence basis with minimum limits of $500,000 for bodily injury or death to any one person, $1,000,000 for any occurrence and $100,000 for property damage. Landlord shall be designated as an additional insured on each such policy, and copies of the policy, or other evidence of the required coverages, shall be delivered to Landlord at least five days before the expiration of any insurance policy. Each policy shall provide for at least 30 days notice to Landlord before cancellation. (c) Landlord shall, as part of common area cost and expense, maintain insurance on the Building against fire and the risks covered by "extended coverage" on a "replacement cost" basis or containing a "replacement cost" endorsement. Landlord shall also carry rental value insurance for a loss period of at least one (1) year in an amount equal to the aggregate of all rent and additional rent payable by any and all tenants in the Building. SECTION 8. ASSIGNMENT AND SUBLEASING Tenant shall not assign the Lease or any of the Tenant's rights or obligations hereunder, or sublet or permit anyone to occupy the Demised Premises or any part thereof, without the prior written consent of Landlord which shall not unreasonably be withheld, conditioned, or delayed. Notwithstanding any provision of this Lease to the contrary, Landlord's consent shall be granted in the event that this Lease is assigned in connection with the sale of substantially all of the stores operated by Tenant and its affiliates. Tenant may, with the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed, assign this Lease to its parent or subsidiary, provided the same assignee assumes, in full, the obligations of Tenant under this Lease, and such assignment shall not relieve Tenant of its obligations hereunder. SECTION 9. CONFLICT RESOLUTION OUDELINES Tenant agrees to pay as additional rent any and all expenses incurred by Landlord, including reasonable attorneys' fees, for the collection of monies due from Tenant and the enforcement of Tenant's obligations under the provisions of this Lease. Tenant shall indemnify Landlord and hold Landlord harmless against all claims and all liabilities, expenses and losses (including reasonable attorneys' fees) incurred by Landlord as a result of failure by Tenant to perform any obligation required to be performed by Tenant hereunder. In the event either party institutes litigation under the Lease, the prevailing party shall be entitled to recover reasonable attorney's fees against the losing party. SECTION 10. ADDITIONAL IMPROVEMENTS During the original term of this Lease, or any renewal or extension thereof; Tenant shall only make alterations and improvements to the Demised Premises (other than Tenant's Work) with Landlord's prior written consent. No alteration shall be undertaken until Tenant shall have obtained and paid for all required permits and authorizations of the various municipal and other governmental agencies having jurisdiction. All work in connection with any alteration shall be done in a good and workmanlike manner and in compliance with the building and zoning laws and with all other laws and regulations of all federal, state and municipal govenunents and the appropriate departments, commissions, boards and officers thereof and the orders and regulations of the National Board of Fire Underwriters or any other body now or hereafter exercising similar functions, and Tenant shall procure certificates of occupancy and all other certificates required by law. At all times when any alteration is in progress, there shall be maintained, at Tenant's sole expense, (i) Workmen's Compensation insurance in accordance with law covering all persons employed in connection with the alteration, (ii) general or public liability insurance for the mutual benefit of Landlord and Tenant expressly covering the additional hazards due to the alteration, (iii) completed value builder's risk insurance and (iv) such other insurance as Landlord shall reasonably require. All such insurance policies shall be written for such amounts and shall provide for such coverage as shall be acceptable to Landlord. SECTION 11. MAINTENANCE AND REPAIRS (a) During the term of this Lease, Tenant, at Tenant's expense, shall repair, replace and maintain the Demised Premises in its present condition (including, without limitation, all plumbing, sprinklers, electric signs, lighting, electrical and HVAC systems, all doors and plate glass and all floors and slabs (but not any portion of such systems located outside of the Demised Premises)). and shall keep all portions of the Demised Premises in a clean and orderly condition, free of dirt, rubbish and unlawful obstruction, and shall not permit or cause any damage, waste or injury to the Demised Premises. In addition, Tenant shall be responsible for damage to the Building (including without limitation damage to flooring, carpets, walls, elevator or doors) caused by Tenant's moving office equipment or furniture into or within the Demised Premises. (b) During the term of this Lease, Landlord, at Landlord's expense shall repair, replace and maintain the roof, walls, and foundations of the Building. SECTION 12. LANDLORD'S COVENANT OF QUIET ENJOYMENT Landlord covenants and agrees that upon Tenant's paying the rent and observing and performing all of the terms, provisions and conditions on Tenant's part to be observed and performed, Tenant may peaceably and quietly enjoy the Demised Premises for the term of this Lease, subject, nevertheless, to the terms and conditions of this Lease. SECTION 13. COMPLIANCE WITH LAWS: PERMITS Tenant, at its sole expense, shall comply with all laws, orders and regulations of federal, state and local authorities and with any direction of any public officer or officers, pursuant to the law which shall impose any violation, order or duty upon Tenant with respect to the Demised Premises or the use and occupancy thereof. Tenant, at its sole expense, shall obtain all licenses and permits which shall be required for the conduct of its business within the terms of this Lease. SECTION 14. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS If during the term of the Lease or any renewal or extension thereof, the Demised Premises shall be partially damaged by fire or other casualty, but not rendered untenantable, the same shall be repaired with all proper speed at the expense of the Landlord. To the extent that the entire Demised Premises (or such portion of the Demised Premises as shall substantially impair the ability of the Tenant to use the Demised Premises for the purpose set forth in Section 3(b)) be rendered unfit for occupancy after such casualty or during such work, Tenant's rent shall be wholly abated (in the event of complete destruction of the Demised Premises) or partially abated in the same proportion as the amount of lost area relates to the total area of the Demised Premises (in the event of partial destruction of the Demised Premises), provided, however, that upon occupancy of the Demised Premises (or that portion not destroyed by such casualty) by Tenant for the operation of Tenant's business, rent shall immediately recommence. Any necessary work which falls under the Tenant's Work shall be performed by Tenant at Tenant's expense. During the period from the occurrence of such fire or other casualty until the completion of repairs to the Demised Premises, the rental due under this agreement shall be abated proportionately as the area rendered untenantable shall bear to the total area of the Demised Premises. If, however, during the term of this Lease or any renewal or extension thereof, said Demised Premises shall be injured by fire or other casualty so that the said Demised Premises are rendered wholly unfit for occupancy and cannot be restored within 120 days, then at the option of either Landlord or Tenant, this Lease may be terminated from the date of such injury by either party giving written notice to such effect within thirty (30) days therefrom and the rent shall be paid only for the period of the month prior to such date of injury and shall terminate upon such date; and upon such termination, Tenant shall immediately surrender the Demised Premises to Landlord who may enter and repossess the said Demised Premises. In the event during the term of this Lease or any renewal or extension'thereof, said Demised Premises shall be injured by fire or other casualty so that the said Demised Premises shall be rendered unfit for occupancy, but can be restored within 120 days, then Landlord, at Landlord's own expense, shall promptly restore the Demised Premises and Tenant, at Tenant's own expense, shall complete any Tenant's Work. To the extent that the entire Demised Premises shall be rendered unfit for occupancy after such casualty or during such work, Tenant's rent shall be wholly abated, provided, however, upon occupancy of the Demised Premises by Tenant for the operation of Tenant's business, rent shall immediately recommence. Any repairs performed by Landlord and Tenant pursuant to the terms of this Section 14 shall otherwise be performed in compliance with all other requirements related to construction and repairs to be performed by Landlord and Tenant set forth in this Lease. SECTION 15. CONDEMNATION In the event that the Demised Premises or any part thereof shall be acquired or condemned by eminent domain for any public or quasi -public use or in the event of conveyance of the Demised Premises to the condemning authority in lieu of condemnation, the provisions of this Section shall be controlling. Forthwith upon receipt by Landlord or Tenant of any notice of the institution of any proceeding for the taking of the Demised Premises, the party receiving such notice shall promptly give written notice thereof to the other party. Tenant waives any right it might have to all and any portion of any award which might be paid to Landlord, Tenant reserving unto itself, however, all rights to any awards that may be payable to Tenant under the terms of the Eminent Domain Code of the Commonwealth of Pennsylvania, to the extent that such awards do not affect the total award that might other- wise be payable to Landlord. If the taking is of the entire Demised Premises, or if such part of the Demised Premises is taken so that in Landlord's reasonable opinion the Demised Premises are untenantable, this Lease shall terminate as of the date of the condemnation or the date on which Landlord shall have conveyed the Demised Premises to the condemning authority in anticipation of condemnation, and any prepaid rent and other advances shall be apportioned to such date and refunded to Tenant. SECTION 16. MECHANICS LIENS Tenant shall promptly pay all contractors and materialmen for work ordered by Tenant or performed for Tenant's account, so as to minimize the possibility of a lien attaching to the Demised Premises. Should any such lien be made or filed, Tenant shall bond against or discharge the same within ten (10) days after written request by Landlord. Nothing herein contained shall be construed as a consent on the part of Landlord to subject the fee or the estate of Landlord to liability under the Mechanics Lien Law of Pennsylvania, for work ordered other than by Landlord, it being expressly understood that Landlord has not consented to any such work and Landlord's estate shall be subject to no such liability. SECTION 17. NO REPRESENTATIONS OR WARRANTIES Neither Landlord nor any representative of Landlord has made any representations or warranties, express or implied, in fact or by law, with respect to any of the Demised Premises except as expressly set forth herein, and no rights, easements or licenses are acquired by Tenant by implication or otherwise except as expressly set forth in this Lease. Tenant has examined the Demised Premises and the streets, sidewalks, curbs and properties adjoining the Demised Premises. The taking of possession of the' Demised Premises by Tenant shall be conclusive evidence that Tenant has accepted the same "as is" and that the Demised Premises were in good condition at the time possession was taken. SECTION 18. SURRENDER OF PREMISES (a) At the expiration of this Lease, Tenant shall surrender the Demised Premises to Landlord in good order and condition and in the condition Tenant is required in Section 11 of this Lease to keep the same excepting only (i) ordinary wear and tear, and (ii) damage by fire and other hazards. Tenant shall surrender all keys for the Demised Premises to Landlord and shall inform Landlord of all combinations on locks, safes and vaults, if any, in the Demised Premises. Tenant's obligation to observe or perform this covenant shall survive the expiration or other termination of this Lease. (b) Any signs, trade fixtures and equipment installed on the Demised Premises by the Tenant may be removed if same can be done without material damage to the Demised Premises, or upon Tenant's agreeing at said time to repair, at its expense, any damage caused by such removal. SECTION 19. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS If Tenant shall at any time fail to pay any charge or imposition or perform any other act on its part to be performed, then Landlord, after thirty (30) days' written notice to Tenant and without waiving or releasing Tenant from any obligations hereunder, may pay such charge or sum of money or make any other payment or perform any other act on Tenant's part to be made or performed, and may enter upon the Demised Premises for any such purpose, and take all such action thereon as may be necessary therefor. All sums so paid by Landlord and all costs and expenses incurred by Landlord in connection with the performance of any such act, together with interest thereon at the rate of 15% per annum, from the respective dates of Landlord's making of each such payment or incurring of each such cost and expense, shall constitute additional rent payable by Tenant under this Lease and Landlord shall have the same remedies for the collection thereof or otherwise as in the case of default in the payment of Minimum Annual Rent or additional rent reserved in this Lease. SECTION 20. INSPECTION BY LANDLORD Landlord and its agents shall have the right to enter into and upon the Demised Premises or any part thereof at all reason- able hours for the purpose of examining the same and making such repairs or alterations therein as may be necessary for the safety and preservation thereof, if Tenant shall be in default in that regard; but nothing herein contained shall be construed to impose any duty upon Landlord to make such repairs or alterations. SECTION 21. OFFSET STATEMENT Within ten (10) days after request by Landlord, or in the event that upon any sate, assignment or hypothecation of the Demised Premises by Landlord, an offset statement shall be required from Tenant. Tenant agrees to deliver in recordable form a certificate to any proposed mortgagee or purchaser, or to Landlord, certifying (if such be the case) that this Lease is in full force and effect and that there are no defenses or offsets thereto, or stating those claimed by Tenant. SECTION 22. DEFAULTS BY TENANT Any one or more of the following shall constitute a default by Tenant hereunder: If Tenant, during the original term of this Lease, or any renewal or extension thereof: (1) Does not pay in full when due and payable any installment of Minimum Annual Rent of which Tenant shall receive written notice and 10 days to cure any default in payment including penalties before Landlord can terminate Lease or (2) Violates or fails to perform or otherwise breaches any covenant or provision of this Lease, for a period of thirty (30) days after receipt of notice thereof; or (3) Permits the leasehold estate or any property of Tenant to be exposed for sale on judgment or execution process by any sheriff, marshall, or constable; or (4) Makes an assignment for the benefit of creditors or is adjudicated a bankrupt or files a case in bankruptcy or otherwise initiates proceedings for the appointment of a receiver of its assets, or files a petition or otherwise initiates any proceedings in any court for a composition with its creditors or relief in any manner from the payment of its debts when due, under any state or federal law, or any proceedings in bankruptcy or for the appointment of a receiver are instituted by Tenant or any creditor of Tenant under any state or federal law and not withdrawn or dismissed within sixty (60) days; or (5):Leaves the Demised Premises deserted and unprotected for a period in excess of thirty (30) days. SECTION 23. REMEDIES OF LANDLORD This Lease and the term of the estate hereby granted are subject to the conditional limitation that in the event of a de- fault by Tenant, then, at the sole option of Landlord. Landlord may exercise any or all of the following remedies: (a) Acceleration of Rent: The Minimum Annual Rent for the entire balance of the Term hereof and any expenses and charges payable under Section 3 hereof, together with all .costs, shall become due and payable as if by the terms and provisions of this Lease said balance of rent and every part thereof were on that date payable in advance; and (b) Termination: This Lease and the original Term hereby created, or any renewal term thereof, shall, at the sole option of Landlord and without waiver of any other rights of Landlords contained herein, terminate and become absolutely void without any right on the part of Tenant to save the forfeiture by payment of any sum due or by performance of any provision of this Lease; and (c) Lease: Landlord may lease the Demised Premises, or any part or parts thereof, to such person or persons as may seem best in Landlord's discretion, and Tenant shall be liable for any loss of Minimum Annual Rent for the balance of the then -current term. (d) Remedies Cumulative: All of the remedies herein before given to Landlord and all rights and remedies given to it by law and equity shall be at Landlord's option cumulative and concurrent. No determination of this Lease or the taking or recovering of the Demised Premises shall deprive Landlord of any of its remedies or actions against Tenant for Minimum Annual Rent and additional rent due at the time or which, under the terms hereof, would in the future become due as if there had been no determination, nor shall the bringing of any action for rent or breach of covenant, or resorting to any other remedy herein provided for the recovery of Minimum Annual Rent be construed as a waiver of the right to obtain possession of the Demised Premises. SECTION 24. HOLDING OVER Should Tenant hold over in possession with the consent of Landlord after the expiration of the original term of this Lease or of any extended term, such holding over shall not be deemed to extend the term or renew the Lease, but the tenancy thereafter shall be from month to month only, at the rental in effect during the last month of the term, subject to being terminated by either party at the end of any month upon thirty (30) days' prior written notice and subject to all of the other terms and conditions of this Lease. SECTION 25. SUCCESSORS Except as herein otherwise provided, all rights and liabilities herein given to or imposed upon the respective parties hereto shall extend to and be binding upon the several heirs, legal representatives, successors and assigns of said parties. SECTION 26. WAIVER No waiver by Landlord of any breach by Tenant of any of its obligations, agreements or covenants hereunder shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of its rights and remedies with respect to such or any subsequent breach. SECTION 27. ENTIRE AGREEMENT This Lease sets forth all the covenants, promises, agreements, conditions and understandings between Landlord and Tenant concerning the Demised Premises and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between them other than herein set forth. No subsequent alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and signed by them. SECTION 28. NOTICES All rent checks payable hereunder and all notices to Landlord shall be delivered or mailed to Landlord at PO Box 7106 Mechanicsburg, Pa, 17055, or such other address of which Landlord shall give notice. All notices to Tenant shall be mailed to it at 7315-B Grove Rd Fredrick, MD 21704 and a copy to Robert S. Foster_ Esq. Shapiro,..Lifschitz and Schram, P.C. 1101 Pennsylvania -Ave: N:W. Suite 1050 Washington_ D. C. 20004 or such other address ©fwhich Teriaiif'sha11 give Landlord notice. All notices hereunder shall be in writing and shall be sent by certified mail, return receipt requested. Such notices shall be deemed to have been sent on the date mailed. SECTION 29. RECORDING Tenant may not record this Lease in any office of public record. SECTION 30. COMMISSIONS Landlord and Tenant each represent to the other that they have only dealt with Commercial Industrial Realty as agent in connection with this Lease. Landlord warrant to be responsible for commission due according to listing agreement. SECTION 31. GOVERNING LAW This Lease shall be governed by the laws of the Commonwealth of Pennsylvania. SECTION 32. SUBORDINATION (a) Subject to the terms set forth below, this Lease is subject and subordinate to mortgages which may now or hereafter affect the Building or the Demised Premises, and to all renewals, modifications, consolidations, replacements and extensions there -of. This clause shall be self -operative and no further instrument of subordination shall be required by any mortgagee. In confirmation of such subordination, Tenant shall execute promptly any certificate that Landlord may request. (b) Landlord shall use reasonable efforts to cause Landlord's mortgage lender to deliver, at Tenant's sole expense, to Tenant a Non Disturbance Agreement in recordable form to the effect that in the event of foreclosure of such mortgage, the holder of such mortgage will not attempt to terminate this Lease, make Tenant a party defendant to any such foreclosure or, in any other way, foreclose or otherwise extinguish or interfere with the rights of Tenant under this Lease. Tenant may, at Tenant's option, waive the requirement that Landlord obtain the Non Disturbance Agreement by giving Landlord written notice of such waiver. SECTION 33. RULES AND REGULATIONS Tenant shall comply with the rules and regulations of Landlord related to the Building and the Demised Premises and any modifications or additions thereto that Landlord may promulgate from time to time. Neither, Tenant, Tenant's employees or invitees of Tenant shall be permitted to smoke inside the Building. VERIFICATION I, HARRY F. CHRISTIE, verify that the statements made in the foregoing Petition for Preliminary Injunction are true and correct to the best of my knowledge, ,information and belief. I understandthat if any of my statements herein are false, I am subject to the penalties set forth in. 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: e/694/11( /1( HA l Y F. /" STIE 3310 Calle Del Montana Sedona, AZ 86336 VERIFICATION I, BARBARA CHRISTIE, verify that the statements made in the foregoing Petition for Preliminary Injunction are true and correct to the best of my knowledge, information and belief. understand that if any of my statements herein are false, I am subject to the penalties set forth in 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: (.0i a -o f 14 BARBARA CHRISTIE 3310 Calle Del. Montana Sedona, AZ 86336 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL DIVISION — LAW HARRY F. CHRISTIE and BARBARA CHRISTIE Plaintiffs, v. No. MATTRESS WAREHOUSE OF MECHANICSBURG, LLC Defendants CERTIFICATE OF SERVICE I, WILLIAM A. ADLER, ESQUIRE, hereby certify that I have served a true and correct copy of the foregoing via first class United States mail, postage prepaid as follows: June 27, 2014 Mattress Warehouse of Mechanicsburg, LLC 5517 Carlisle Pike Mechanicsburg, PA 17050 William L. Adler, Esquire 4949 Devonshire Road Harrisburg, PA 17109 Phone: 717-652-8989 Fax: 717-307-3343 Supreme Court ID: 39844 bal@billadlerlaw.com HARRY F. CHRISTIE and BARBARA CHRISTIE, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW MATTRESS WAREHOUSE OF : MECHANICSBURG, LLC, : Defendants : NO. 14-3833 CIVIL TERM IN RE: PETITION FOR PRELIMINARY INJUNCTION ORDER OF COURT AND NOW, this 3rd day of July, 2014, upon consideration of Plaintiff's Petition for Preliminary Injunction, a Rule is hereby issued upon Defendants to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, az,„, Chris lee L. Peck, J. William L. Adler, Esq. 4949 Devonshire Road Harrisburg, PA 17109 Attorney for Plaintiffs �ress Warehouse of Mechanicsburg, LLC 5517 Carlisle Pike Mechanicsburg, PA 17050 Defendant, pro Se -0a' -ca P1 :rc `Coef'es" /11--1.L. -<> VtX/q -_,.. —