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HomeMy WebLinkAbout14-6216 Supreme Co y. ' Pennsylvania Coil OUCoinrno y leas For Prothonotary Use Only. C CbverjS t 't S_ Docket No: Curd nand .,� County l -62 G 6Uwz ` ' rI The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service ofpleadings or otherpapers as required by law or rules of court. Commencement of Action: S 21 Complaint ® Writ of Summons El Petition Transfer from Another Jurisdiction [3Declaration of Taking C Lead Plaintiff s Name: Lead Defendant's Name: T, Pennsylvania Fish and Boat Commission Linlo Properties V, LP I Are money damages requested? 19 Yes ® No Dollar Amount Requested: Elwithin arbitration limits (check one) ®outside arbitration limits N Is this a Class Action Suit? ®Yes El No Is this an MDJAppeal? [3 Yes [9 No A Name of Plaintiff/Appellant's Attorney: Wayne Melnick ® Check here if you have no attorney(are a Self-Represented [Pro Se] Litigant) Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim,check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS 13Intentional [3Buyer Plaintiff Administrative Agencies Malicious Prosecution ®Debt Collection:Credit Card ® Board of Assessment Motor Vehicle ®Debt Collection:Other D Board of Elections Nuisance Dept.of Transportation ®Premises Liability Statutory Appeal:Other S [3 Product Liability(does not include (3 E mass tort) Employment Dispute: Slander/Libel/Defamation Discrimination C 13 Other: ®Employment Dispute:Other Zoning Board T © Other: I Other: O MASS TORT l3 Asbestos N ® Tobacco Toxic Tort-DES Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS ® Toxic Waste E3 Other. ®Ejectment 0 Common Law/Statutory Arbitration B ®Eminent Domain/Condemnation ® Declaratory Judgment El Ground Rent ® Mandamus Landlord/Tenant Dispute Non-Domestic Relations PROFESSIONAL LIABLITY ®Mortgage Foreclosure:Residential Restraining Order Mortgage Foreclosure:Commercial 13 Quo Warranto Q Dental [3 Partition 13 Replevin ® Legal [3 Quiet Title [3 Other: ® Medical Other: Other Professional: Specific Performance Updated 1/1/2011 COMMONWEALTH OF PENNSYLVANIA, : IN THE COURT OF COMMON PENNSYLVANIA FISH AND BOAT : PLEAS OF CUMBERLAND COMMISSION : COUNTY, PENNSYLVANIA Plaintiff V. : CIVIL TERM NO: q- LINLO PROPERTIES V, LP, • erg and, : CIVIL ACTION-LAW AND EQUITY LINLO MANAGEMENT E,LLC C-) Defendants rrn Co p F. NOTICE z C) .� A2 o tet. Grp , 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 S. Bedford Street 04 Carlisle, PA 17103 s Telephone: 717-249-3166 C#-"p 300a ,gig 31.2 � I-V- 31.2 COMMONWEALTH OF PENNSYLVANIA, : IN THE COURT OF COMMON PENNSYLVANIA FISH AND BOAT : PLEAS OF CUMBERLAND COMMISSION : COUNTY, PENNSYLVANIA Plaintiff V. : CIVIL TERM NO: LINLO PROPERTIES V, LP, and, : CIVIL ACTION—LAW AND EQUITY LINLO MANAGEMENT E,LLC Defendants COMPLAINT AND NOW COMES the Plaintiff, the Commonwealth of Pennsylvania, Pennsylvania Fish and Boat Commission("Commission"), by its counsel Wayne S. Melnick and files this Complaint against LINLO Properties V, LP and LINLO Management E, LLC (collectively, "Defendants") averring as follows: THE PARTIES 1. Plaintiff Commission is an independent administrative agency of the Commonwealth of Pennsylvania charged with protecting, preserving and managing fish in the Commonwealth and the agency with jurisdictional responsibility for fishing and recreational boating. See 30 Pa. C.S. §§321, 322. 2. Linlo Properties V, LP is a Pennsylvania limited partnership with its principal place of business at 1013 Mumma Road, Suite 100, Lemoyne, Pennsylvania. 3. Linlo Management E, LLC is a Pennsylvania limited liability company with its principal place of business at 1013 Mumma Road, Suite 100, Lemoyne, Pennsylvania. Page 1 4. Linlo Management E, LLC is the general partner of Linlo Properties V, LP. FACTS 5. On or about March 2, 2012, Defendants entered into an option agreement/agreement of sale (hereinafter"the Agreement") with the Commission. A copy of the Agreement is attached hereto as Exhibit A. 6. Under the terms of the Agreement, Defendants conveyed to the Commission an option to acquire a fishing access and conservation easement(hereinafter"the Easement") on property owned by Defendant Linlo Properties V, LP along Yellow Breeches Creek("the Property"). 7. The Agreement describes the Easement area as that portion of Yellow Breeches Creek running through the Property including the stream bed and extending 35 feet laterally back from the southern bank of the Yellow Breeches Creek flowing through that portion of the premises located in Carroll Township and extending from the intersection of the Gettysburg Pike and continuing 500 linear feet to the point where the Yellow Breeches Creek intersects with an unnamed tributary entering Yellow Breeches Creek from the south. 8. The agreement was executed by Lowell R. Gates, general partner of Defendant Linlo Management E, on behalf of Linlo Properties V, LP. 9. On or about August 23, 2012,the Commission exercised its option by providing written notice to Defendants and converting the Agreement into an agreement of sale. A copy of the exercise of option is attached hereto as Exhibit B. 10. The Property, which is the subject of the Agreement, is a tract of land partially in Carroll Township, York County, and partially in Monroe and Upper Allen Townships, Cumberland County. Page 2 11. The Property is more specifically identified as York County Real Estate Tax Parcel 20-000-PC-002-000-00000 and Cumberland County Real Estate Tax Parcel 42-12-0352- 003. 12. The Property is more specifically described in the Confirmatory Deed recorded in York County and attached to the Agreement. 13. Under the terms of the Agreement, Defendants were obliged to close upon the Easement within six months of the exercise of the option. 14. The Commission has made repeated attempts to contact Defendants to arrange the closing. 15. Despite the Commission's attempts, Defendants have failed to respond to these requests to arrange closing for the Easement. ,. 16. Defendants' refusal to proceed to closing is a material breach of the Agreement. 17. The Agreement was one transaction in a project related to the improvement of the Property. 18. The intent of the transactions was to remove three dams across Yellow Breeches Creek on the Property and to restore free flowing conditions to Yellow Breeches Creek. 19. One of the dams was the subject of a Notice of Violation issued by the Pennsylvania Department of Environmental Protection ("the Department"). 20. The two other dams were in poor structural condition. 21. Defendants, in cooperation with American Rivers, Inc., undertook to fund the project through various public and private grant programs. Page 3 22. In cooperation with the U.S. Environmental Protection Agency, Chesapeake Bay Foundation, and the Department, Defendants and American Rivers, Inc. secured approximately $275,000 in grant funding for the project. 23. Mr. Lowell Gates, member of Defendant Linlo Management E, LLC, contributed approximately$50,000 of his own funds in matching funds for the project. 24. Mr. Lowell Gates pledged the Easement as an additional match to the grant funding. 25. If not for the pledge of the Easement, Mr. Gates and/or Defendants would have had to contribute or obtain additional funds to match the grant funding for the project. 26. As a result of the project, Gates and Defendants benefitted from the removal of the three dams on the Property and the associated liability. 27. As a result of the project, Gates and Defendants benefitted from the curing of the Department's Notice of Violation. 28. As a result of the project, Gates and Defendants benefitted from the addition of approximately one and one half to two acres of dry land to the Property. 29. As a result of the project, Gates and Defendants benefitted from a general aesthetic improvement in the Property. JURISDICTION AND VENUE 30. The Court of Common Pleas of Cumberland County has jurisdiction over all Defendants to this action. 31. The principal place of business of all Defendants is in Cumberland County. 32. The Property which is the subject of this action is partially located in Cumberland County. Page 4 COUNT I—BREACH OF CONTRACT 33. The Commission hereby incorporates by reference paragraphs 1 - 32 of this Complaint. 34. The Agreement constitutes a written enforceable agreement between the Commission and the Defendants. 35. The Commission satisfied all requirements of the Agreement by exercising the option and providing notice to the Defendants but was prevented from performing by the actions and inaction of the Defendants. 36. Defendants materially breached the Agreement by failing to close on the Easement. 37. As the proximate cause of the breach, the Commission has suffered substantial consequential and special damages that include costs of investigating the transaction, preparing the transaction, attempting to obtain the Easement over the Property, and the cost of finding a replacement easement location if specific performance is not ordered. 38. The claim involves title to real property and is not subject to compulsory arbitration. WHEREFORE, the Commission respectfully demands this Court enter judgment against the Defendants that includes consequential and special damages together with whatever relief the Court deems just and proper. Page 5 I COUNT II—SPECIFIC PERFORMANCE -EQUITY 39. The Commission hereby incorporates by reference paragraphs 1 - 38 of this Complaint. 40. Since the exercise of the Option, the Commission has been, and now is, ready and willing to comply with the terms of the Agreement. 41. Defendants materially breached the Agreement. 42. The Commission's claim affects title to or real interest in real property because specific performance of the Agreement is sought. 43. The location and nature of the Property and the improvements made to the location through the various grants makes the Property unique. 44. Monetary damages alone will not provide adequate relief to the Commission. 45. Specific performance of the Agreement is necessary to cure Defendants' breach. WHEREFORE, the Commission respectfully demands this Court enter judgment against the Defendants that includes an order compelling Defendants to execute a Fishing Access and Conservation Easement over the Property in favor of the Commission. Respectfully submitted by, COMMONWEALTH OF PENNSYLVANIA PENNSYLVANIA FISH AND BOAT COMMISSION Wayne Mel ck Assistant Counsel Attorney ID # 53150 Pennsylvania Fish and Boat Commission P.O. Box 67000 Harrisburg, PA 17106-7000 Phone: 717-705-7810 Fax: 717-705-7811 Page 6 VERIFICATION I, Brian Barner, Deputy Director, Office of Administration, Pennsylvania Fish&Boat Commission, hereby verify that the statements made in the attached Complaint are true and correct to the best of my personal knowledge, information and belief. I understand that any false statements made herein are subject to the penalties contained in 18 Pa. C. S. §4904, relating to unsworn falsification to authorities Date: ld g / Brian Barner Page.7 EXHIBIT A Page 8 -03 �b.e PUBLIC ACCESS IMPROVEMENT PROGRAM OPTION AGREEMENT/AGREEMENT OF SALE TO ACQUIRE A FISHING ACCESS AND CONSERVATION EASEMENT THIS OPTION, made and entered into this da� by LINLO PROPERTIES V, LP, a Pennsylvania limited ershi f �,�c�,�, ��� 2012 Gettysburg Pike, Mechanicsburg,PA 17055 of Cumberland County, Penn with ylvaniasby andres of through its general partner, Linlo Management E, LLC, a Pennsylvania limited liability company, hereinafter collectively called the OPTIONOR, the COMMONWEALTH of PENNSYLVANIA, acting FISH and BOAT COMMISSION, having a mailing addres of c/o Real Estate ough the PENNSYLVANIA ectn, 45Robinson Lane,Bellefonte,PA 16823-9620,hereinafter called the PFBC. WITNESSETH: - WHEREAS, the OPTIONOR owns a tract of land, hereinafter called the Premises, located partially in Carroll Township in York County and partially in Monroe and Upper Allen Townships in Cumberland County that contains a-portion_of the waterway known as Yellow Breeches Creek, and WHEREAS, the OPTIONOR acquired its interest in the Premises via a Deed recorded in York County Recorder of Deeds Office,Record Book 2036, Pages 4034 and following, a copy of which is attached hereto and incorporated herein as Exhibit A, and a Deed recorded in Cumberland County Recorder of Deeds Office, Instrument Number 200925564, and WHEREAS, the Premises are more specifically identified as York County Real Estate Tax Parcel 20-000-PC-002-000-00000 (+/- 11,2015 acres) and Cumberland County Real Estate Parcel 42- . 12-0352-003 (+/- 13.6863 acres), and WHEREAS, the OPTIONOR will donate and convey a fishing access and conservation easement on the portion of the Premises located in Carroll Township, York County, and WHEREAS, the PFBC desires to acquire an Easement in the public interest, subject to the terms . herein. _.. NOW, THEREFORE, the Parties, in consideration of the benefits flowing between them and realized by them, do hereby agree to the following: 1 PROPERTY RIGHTS. (a) The OPTIONOR hereby grants to the PFBC for a consideration of One Dollar 0'1.00), the receipt and sufficiency of which is hereby acknowledged by the OPTIONOR, upon the Pagel terms and conditions herein set forth, an option to acquire an Easement on and over Yellow Breeches Creek, including the stream bed and extending 35 feet laterally back from the southern bank of the Yellow Breeches Creek flowing through that portion of the Premises located in Carroll Township and extending from the intersection of the Gettysburg Pike and continuing 500 linear feet to the point where the Yellow Breeches Creek intersects with the unnamed tributary entering the Yellow Breeches Creek from the south ("the Easement"). (b) In the event this option is exercised, the consideration the PFB C shall pay to the OPTIONOR at closing for the Easement shall be One Dollar ($1.00). The OPTIONOR shall convey the Easement with good marketable title free and clear of all liens, judgments, clouds on the title and encumbrances. This option is exclusive to the PFBC and the portion of the Premises underlying the Easement may not be sold or encumbered, other than standard bank financing, to any other party during the option period. 2 EXERCISE.OF OPTION. The PFBC shall exercise this option by giving written notice of such to the OPTIONOR within six=from the date hereof. In the event this option is not exercised, this option agreement shall terminate. If this option is exercised this option agreement shall become an agreement of sale. The closing shall be held as soon as feasible but no later than six months after the date the OPTIONOR has received notice from the PFBC that the option has been exercised. The closing shall be at a time and a location mutually agreeable to the parties. If PFBC exercises the option, the OPTIONOR shall be obligated and required to convey the Easement in accordance with the terms of this Agreement. 3 RIGHTS OF PFBC. (a) Prior to closing, the PFBC shall have the right to conduct investigations on the portion of the Premises underlying the Easement. These investigations shall include title, surveying, property line, access, environmental, land use and zoning investigations along with the inspection, non-destructive testing and archaeological evaluation of the Premises so that the PFBC may generally satisfy itself regarding matters that are considered contingencies to acquiring the Easement. The OPTIONOR shall cooperate with the PFBC in a reasonable manner during the option period; provided, however, the OPTIONOR shall not be obligated to expend funds to assist or cooperate with the PFBC. (b) In the event investigations by the PFBC indicate that there is environmental contamination of the Premises or there is a reasonable likelihood of such, the PFBC shall have the absolute right to cancel any and all contractual obligations hereunder or any subsequent agreement without obligation to pay or provide any consideration. The PFBC may grant the OPTIONOR additional reasonable time beyond the r.losino- deadline to m;t;pat- an,, environmental contamination onto conduct additional environmental investigations to remove any suspicions of contamination; however, the PFBC may cancel, by written notice, any contractual obligations to acquire the Premises during the extension at the PFBC's convenience and discretion. Page 2 4 OPTIONOR'S DUTIES PRIOR TO CLOSING. Should this option be exercised by the PFBC and become a binding contract, the OPTIONOR shall: (a) Confirm that it has good and marketable title to the Easement and the Premises free of any liens, clouds or encumbrances, other than standard bank financing. The OPTIONOR will cooperate in securing a release or subordination of any lien should the Premises be encumbered by a mortgage. (b) Ensure that no debris, rubbish or materials of any nature are placed or located on the Easement prior to closing. 5 DOCUMENTS TO BE DELIVERED AT CLOSING. If this option is exercised,the OPTIONOR agrees to deliver at closing to PFBC or its successors or assigns: A document conveying the Easement, which shall be prepared by the PFBC and provided to the OPTIONOR prior to closing. The document shall contain the statement: The Grantor hereby certifies that to the best of its knowledge the Easement Area is not contaminated with hazardous or toxic waste and hazardous or toxic waste has not been stored or generated on the Easement Area, as hazardous and toxic waste are so defined by the Pennsylvania Department of Environmental Protection. The Easement document will be in substantially the same form as the sample provided as Exhibit B. 6 REAL ESTATE TAXES, TRANSFER TAXES AND OTHER CHARGES. There shall be no pro-ration of any applicable taxes between the OPTIONOR and the PFBC in the year of closing, and the OPTIONOR shall be responsible for all taxes. If this option is exercised, all real estate taxes due and payable for the portion of the Premises underlying the Easement for all years prior to and including the year of closing shall be paid by the OPTIONOR. All real estate transfer taxes, if any, for the conveyance of the Premises shall be paid by the OPTIONOR. All special assessments, levied or pending against the Premises, shall be paid in full by the OPTIONOR at or prior to closing. 7 NOTICES. All written notices given hereunder by either party shall be served by personal delivery or certified mail, return receipt requested,postage prepaid and addressed as follows. Notices for the OPTIONOR shall be given at the following address: LINLO PROPERTIES V, LP, 1013 Mumma Road, Suite 100, Lemoyne, PA 17043, and the PFBC at the aforesaid address with a copy to the Office of Chief Counsel at P.O. Box 67000, Harrisburg, PA 17106-7000, or such other addresses as either party may designate by providing written notice to the other party. ZD 8 COPvII�1ON`v�,ALTH REVIEW. TL. y.o: • REQ 1. YY, 11llJ Up L.VIi agree—me-t or any ..-bseque-11L agr�.lilii\.LJ.t of sale resulting herefrom shall not be valid or enforceable against any Commonwealth party including the PFBC until it has been reviewed and approved by the PFBC's attorney, the Office of Attorney General, and the PFBC's Comptroller or designee, if necessary. 9 CAPTIONS. The captions of the paragraphs herein are inserted only for convenience and not for interpretation and are in no way to be construed as a part of the option agreement or as a Page 3 limitation or expansion of the scope of the particular paragraphs to which they refer. 10 DEFAULT. If the OPTIONOR fails to perform any of its obligations hereunder and the default is not cured within thirty (;0 ) days after receiving notice thereof from the PFBC, the PFBC shall have all rights and remedies available by law or in equity, including but not limited to the right to require specific performance of OPTIONOR's obligations hereunder. 11 BINDING EFFECT. This option agreement shall inure to the benefit of and bind the successors, heirs, administrators and assigns of the parties hereto and shall be construed under the laws of the Commonwealth of Pennsylvania. The Parties hereto may only transfer or assign the rights acquired hereunder to another party with the prior written approval of the other party. 12 ENTIRE AGREEMENT. This option agreement constitutes the entire agreement between the parties, and there are no other agreements between the parties except as set forth herein. This option agreement cannot be amended except in writing executed by both parties hereto. IN WITNESS WHEREOF, the parties hereto have executed this option agreement the day and year first above written intending to be legally bound hereby and warranting authority to execute the same. ATTEST: OPTIONOR: Linlo Properties V, LP C4 1 (date) By: Linlo Management E, LLC (date) General Partner ATTEST: PFBC: Pennsylvania Fish and Boat Commission Administrative Secretary (date) Ex tive Dire or (date) A-PDDlIATCTI A C `T!1 T VG AT TTI T+ ANn7?7VTl 1 1\V ••.L t'11J 1 v 11LriL1 1 3 2b Authorized Agency Attorhey (dat ) Office of the Attorney General (date) Pennsylvania Fish and Boat Commission Page 4 EXERCISE OF OPTION This option is hereby exercised on photocopy by the PFBC and a P py of it has been sent by mail to the OPTIONOR at: 1013 Mumma Road; Suite 100, Lemoyne, PA 17043. ATTEST: PFBC: Pennsylvania Fish and Boat Commission Title ......... ...................................... Title ................................................ APPROVED AS TO LEGALITY AND FORM Authorized Agency Attorney (date) Office of the Attorne General Pennsylvania Fish and Boat Commission Y (date) Page 5 Exhibit A Property Deed "-:c�•�I`,44aarl:.T.:+:in:Si - ....''�f:¢J'If!fE�?^ _`�- +tZB�. . 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COjN7,IkJN.�,tNC1 .1. 114,VT•iG`I'E-1tL O crccted n matts5z t1 r c 3:�i;:,rrk'raFn,>ra-rc:wcX74e.11;)e q2hor rb)xt}s):iBdsr4x,*s_ TRACTIND.2 R'ECINI lNIC, at an ITC-rzjI tti)callld tai the suu-nvm or-yrnex of'--.n"t No- acs=51 td;f7 c w ooattirtwq ;alcn, [tilt sur .t1�1,rt the R;49urfing I.i.111KIet''ompanr irn�k,Nodh(3:' degee,:l2mimmu-z00w�r:enrid W=dadh,.T� coGlj,30 (moi t; o 7" y.r ,I. to an,iron I., tl tnt_c cnn I t1i fr tilting l,a pan,7 ct k) Rall-mid i crwipmayt ,sovffi.70 d qr>m OR I7iryrYIF t'1.£rk<19C1 ' t"f kr d ntt e C-06.00.t t( ,{!{Ig.(J9" � 96t `}to en trt_ rt,f1 c.5e . earth tit?I.I7 7 r,?I7 .I.i.t7r: rt aflal t;.71�.. ,:=.7s tta ttemd Co,rVanytaa;4 flc rt,�s�•u�Jtiriett: L"? sc.cticl�k', st ii.ct(s.:t ncc of l y?.�i art l::{S ts4`3a'�7t1";tr 11".�G',�1-,) all, seq.pi7 6t crux an rile c;i,,terrmn:�t c:iaiie:r nf7:atr,5 nlz•T;±=:rir fext�iiv,lj•:�=.E}i.11stal_�.Yrcy��C{tr.,±tsG'�;th>rrxce Crirrtin.uinr alt.rgr krrr<ds.u"said fit€46a_rg�l�<:rtvk114rjt`.l�`ac[ 111)':rtltrp:,'ts'v1rC:�rC rx rli3ta.=acxrzE 14.40`'ett fr`' d pesli.;isrw:ccs:cru,t_.uc);�;tivn�:l:ttr:latif'szcl Dil-hbr-Arza.A-Mbnri:t;;Na th 97 do;� a'tsit-:v)��r.0 r"4ttmst a.tli;xacne of t Page 7 14' -zed p;-;cc; Y, along ^rid cards ar �i.alsbu- hrv�: othc. _�c.h�7iG 'L4S.i.lr; 1. 1 - i,'-fix;acnnr?s"Yt'zrs;a t 1,-f Is&3G?Cct ( i ';ri'r";a'tG 12?:0r"t ga L inch .r.:uc cx.+' driuiv .aJ.cn said lasd� of C;ill.r�uxy ta A ull C,6 y,X tFt 33 dr .man_t im.SS sca')nd-We-t rt tfivtrt_rwr:_5?9.GSf'*ti i('N ' •r r, c.,n nh slr.nn s3>ltidr:.c..E`Ltill�:brtr,��.sn Authority-urtl 25 d4,_gcxn;7C+mi.m*zs t:.;i CE esta,i ,skarcl ot-.T?__[ cci(X.35=7i1;)f"W ' ;9,5h.)to-,I Duh trot•,,runt.nom iir.Ig a°n1u O:FDdLbL o jlrca utha,i'ry,Nor.l.S% a dish nce tit 6:.70 FtO(N a M'7'l)0P !64?:Pl to a 14 inch d•.artir<dpitre;than.cec,nxmuj:n^+aivl,;l_cis3Sn,w-,rfatm: l of.Dflh0uw!a t,:: �a :{ 'I •�ic':r'•.r afl,z.rT y•Nnit}2 i[ t ti 51 msi tt .2seernWs �r'•_s acrirr _cc J?S.Ck.i f:rE?\.l'r�5' 5 RIFF 1 .r' int;thct7:tc,^unt;nti;is�a'•-^o r: c•; d.tusiii6i Ixnrls b,"1?I! b t ti.Arca 11lni ifx,llnrr 19 dqrtee,;51 52 s1ur:js liV=t a dl iKance LIC411_60 f". 13'1 I'5*`lYr401-:7'°!?o a pa.-int an� r aria ih a;Ii•rc 1,f tanc7 nf-,V or'furrer yo Nicadonmw x,l'Av17c:,mlar.L?and the-"ert,.:mea: •} t''r'>~ft4.rcv r3i:V46ls.S(:;4r,•.};; them: cnnt.rltang"lung said 'rind c;f fyaz:-gl4:uc�of:l,14c vibe,Lf"and mc t iiz.e+;,f 5'e.I.Er w Bi=he SKr^r , \rri t15 FSdo rrer-- 3$ nnintl4es G'2 ' matin tdw c,t € n s x tlist�n>:.c c:.'4:?5..<C5:t%�.t Ch +:fi'12"E`95143)t•:t a Irni at,.v,�tiC +r, L.mm cry. . 3f Ea,ada •ttu:!nr fi ti-Gr}°c Jrt t rsE.Comzrl L,l;ti.•enc cu.nta mag a lorT seid laT,4 vcrLc'nue'td;r d lbe 4 t�[iirc of 1 czlatc Bree{ tz eek and lurnOs no-,-v or��r Yrc r.l�'c'Strpi',.v-�`qtr`.Taylor,?tictt�<s'V:r�itr4 T3. e.a_�)I:ES-er�r:'u;': fie Solder, NorO.,ri.5 4r.,�n cc.;4i.D rniniums 24 zs,4,,onds.East G•d uIw=Gil 1:97 A7 loEi:t(?i tib 4,0 24w S 119'_=4,`}:tr; a lio nt at l2bc ana ,C,amcr:pf;aiti lands rpt flmdc.r citmcc-tOnFilu:nF,aloltg T ma N". 1 as 7;s;rcetnbe;f-3t.:cry mrbed.,Batt:!:0*3 d=-,^het 1: ni inr gs 17 Lmwmds'Wo5t.a distance e.(279,98 feet IS 279,913',rr~-an ir-Ml PiPt,dicpoi,:.-t:un-11-O;;,„ aC"1L ;P3r�iI*1 . CON-11T.rLitNCING 11.21)F, rc es trio rot Or ILs `tI'S)L> f.,.HCtFVL7ic-such.e`scrncns, rt.�+cr7t:- d scrtl c kr�eks Orland,r,.xntr'1:;.d erun.-=rdumi. i3ElN :sm stmt p-n tiT,r ;kh c1.�D nslarzE C.Adams.Jr.zmd NIP- mt D,A sn,;.,t^y s�.i:d�ti dais l 2009,�I^d mct-dM i"n tl;.c C:>'ti`aec n' b,_-' c; f ft. +:t,, ora'Dr-n;El,rrEYnrltt.aua�+rr.,nl.tne;.Ito7�ry� rT,1?t rerl 9(xak."MR6.,P,e;+;c 5501)I ta-A roc Td=1 Tri the lToe of Che xtrcnAer.of Dvods ai unlis i:_M Cumt i Lvn Jima 5, 2079 as Et19Mtif':IM'Mmbe.•r?e;<t191 R941), pxrie ,^and p67Kt'e t.F arta LArr xapertl<cs 1!'.,LE',Crrnka 7•�Gr�:ti.. ALSO 3iF.iNG premisc.5 ws desurbcd in Elio Fmm�jt,nq-:4i;r e.,,V pEaplr it </p Pon:r ori ;ts hTcsstck,ficrF++. �t�et N(A ;a, -009 Irld aUlchiA hcmw ys Fm bil"All This Deed Is exempt frniro reAl>,r'r.,t;tvskr tsa arad:s recorded for the sale lTiar;it e�sf rcpd3tin fh;c legaf denrifdon tan:rdlei✓r 01;(A AbOvv*' y, TOGETHER HER Ott--it a.id sin�p+.I:aT ja hF.,Tu r,---m=ts,,c;ty,.•:v:u! v t�-co s'r- cig17?S,EabiF-tFts,prix€:cec�s,.hm-uliraftlm: and ap:`n1no��•�v�tvFt.t. ry�<�4C..+�:�rtn�;,li.ctntur rt1 ruuzsF1+ cr;a a aadtf tr r uk =:rlctlsr a �tkt cci,a all bP b �n�.E t^�•c�ai,r3e~� is.r a .o-Aj t o,arxTvt P.-aP",ctai.n Yrld dtrtttnd whaL ncr of flic.tTe +ar'v ri:f ihr first batt,. Ty 1.'.ti y E tii. (3Y'l7(.Fl :rrI GL';.11.C3Yx eL:!GxtGr,in;zm.9 to U"Ic s rr z,wnr3 vsF=ypar thc'MAD. Page 8 r i3h'+F3\7}£E?EIC�ZI1 S; lut:c�c rr to +td77,°cd€sr_;bed,Wit il.trrs.r;e,�r :cnc:tl�t'] rCOrtc tr ad.h r cta. lPrz , tv . t tarc,E mencicd;a-Wlt trd m , hr, aoidtba ty:ta the ,Iid OJn c rs her :� , uanfr r t u riy.rvTr4tSr nd carnf n.th ,3 t 7r ,its^rir.l ands..,tgr.7a, AND£ + r S qt r of&a rrI snc�,^t:s;aud,�ctit',ws:_ns,does e:.,::a�;:MW, pomom;gnat r1J ae toi d xa rpt batt,of t4c Land aiRS,.it!;htirN grad a;=i�*t.,,h t�;es: arc ten; , na_Grsa€rz [ar( of thr.ar_.t per uitl:il; su4r•ra ecc n;v ,r,..r tS,:iga .thc.sais9 ABGn- alet:tiorl d and dscrLi%�nam s i gu MMI tract of I t ^r i tarr Ines,.and pyt r r ntcs,?creh}= tc l yr rn�tii reci,,:r 2�t7 E3 5!n be; y t7 p=ip of:: �K mrt dart ner-. rnr!assign, n.gzt a titan r r,ply ofh,c ilrnf txnt - d is 8 >gm,and agcy u V and.cv 'trom,�aerkri nsza� vnsssEt=tn:; cacr,Itc .t:[t>,t•temir, r, tncir;C1tiln!:rams racypalltlt.gren.f r} Frnm,nr u7�cY I t'ir'e x� t]atnn .nr awry S+C ',f t,��1 iLL X317�r11;.I,Sk'1=-C'i�Z•L�'�`a3l�Rttv1'1:' .4<'D FOR EVER[i.C:,l"E'kII.P.Y TT3FR T,.-tGSL IS:. <31gy.i::turc Np,,Ta Frrltgvy> Page 9 N'WT€I.FSS'Wj ERE or,TITc Said a4r•;<<_;ae p rsm im its hand mac: sT` 7iL d tht:day ar;fi I,.inIG ProPurtics V,..LP Fit itS{;�E:the:r�t"�rYrte:r LLC �• ;.::Ff?f3f.�::{x?i1:4 F�t!�:i:��fE}L';F � �F C y ib it,11 M,aj�L—ay Of I'by,M-09,09,b tLrc irsc,s b1,:turf T't .w eL r c�ttrd n tf car, rlcdg:d k}acm c l'�e:a W be*AM=Lida Mmagemmm F >:E.f,a Ufr t�;eb b.i thiIi.ty corrijaiLny.the^;en ali:1 :y;mrxr a M >` c w. F rd:n 'tv-)XIli m V,.Lr*zttd'that fury tv succfi N.1cmhtni,hcmg A.'m."'ind to do s ,oxcmtnd's,afj:F'4r c�.ing rmin nim C>r ww,pwrPO, „^,tliere t writaked by signing,the rvt a-rStf the cc;po:;r'rci'na.byth f. tJS�ilC.rd�*i^.Y�: IN WITNESS WHEREOF,I}:ci martn set m�'y bmwl aria efr>ctai Seal. t sexy t'ON `via r_a ar .im'or.Lxp__' L'tr,,rrr..7e�`"rz„Lyr'1.�:rtx 7�2L"1� .� Page 10 CZRTMC:iTE OFRESIDE:ti:CF E i;crrl:�,cr.i:F; =»t thr +izea4t:K�iilecE:E. LU=i o P-vo c_'trt-.V,LP 1�� �4 uT3Lf.17 wiS:Si,F --_._..._ Page 11 I Y ruS� tt � a y A. ,� x Ranno27 IVWJWi 1Z1 �RJI a 3,r."TE a�CDLvsL li umm IMD Page 12 8 -45T 1 fAXh ET STREET e Yohy?t;I'i 1-i71 �11§3L Ii V':Z' aw r c • tl�siru¢nrnr h�amitar-202}7dkiir<''��� ltif<ck-34`3/c StxrE:ktsi;F:i�e_�:(P3�# "1taidPayr�-9 r IGS.EruCiCz11 Type-DKED Uvaiee`humber-843600 s:ra.,fSOr-LI T:0 F1?.[PERT FS V I.F.' 'GiaXftee- Y:t:P User- .1)'i1xl-7. R*ec.t eJ Etu. tT��IL TILS PARCEL IDYNTIT€e„4T1(F v f�E tlk?�fl ST LTA WRIT TAX $¢,�.� yl�(G04'Cf)a2f7�dii�llEllb TCS/ACC«SS 'TO .7UST.CCE. $:!-0.b:J Tntul;Patrrlc,i EtLC.C.ROT:NrLY YEW y2I..J •711...'.`3 Pitt '€iW.ST li. :FF3,S tsCt'7-NTT KRIFf.TI?25 PM2 *2,0 :Etre, i1.fiC.d'_Vrt;S t'tt-1: t '1i1�^.' .•�;y:c:'... q1' ItisdiiFcSF t5t`]I!ed�i Teti�.!i3 f4' 1 e'1J.rfJ:fF',�i7'fE ?.`:rr:4i(32-; PI ,-S'ED'OAWTDE.T4CH }.I`�f 1..+o1:.+'l ry"'fi- -'-€n�rrr rotiizr.::tltrutdr.�h�t�r�:rscer&A:n'�i C7rjiimyl€i�*,',.n;:t�n,:'rr.';(;watinn prccez nnn m:x'c na;Fx•rtn.:c�r�l va i�wix�x�n 41 Page 13 Exhibit B Grant of Easement Prepared by:PA Fish &Boat Commission Parcel ID:20-000-PC-002-000-00000 (York County) 42-12-0352-003 (Cumberland County) Return to:PA Fish&Boat Commission P.O. Box 67000 Harrisburg,PA 17106-7000 FISHING ACCESS AND CONSERVATION AGREEMENT THIS FISHING ACCESS AND CONSERVATION AGREEMENT("AGREEMENT") dated as of this day of , 20 , ("Agreement Date") is by andbetween of ,with an address County, Pennsylvania(`Grantor") AND the Commonwealth of Pennsylvania, by and through the Pennsylvania Fish and Boat Commission, with an address of 1601 Elm6rton Avenue,Harrisburg,Pennsylvania 17106 (`Grantee"). For the consideration provided by the Granteefor the purchase or improvement of real property, hereinafter referred to asthe Property, conveyed and recorded as Deed Book and Page and further described as: Street Address: Municipality: Parcel Identifier: County: Commonwealth of Pennsylvania the Grantor hereby grants and covenants on behalf of itselllhemselves/himself/herself,its/their/his/her heirs, successors, and assigns at all times to the Grantee, a fishing accessind conservation easement as follows: 1. The portions of the Property that are the subject of this Agreement(collectively, "Easement Area") consist of the following areas shown on the plan attached asExhibit A (`.`Easement Plan"): (a)the area on the Property from 35 feet from any bank off name of waterwavl ("Waterway") owned by Grantor unless a greater or lesser width from the bank is set forth on the Easement Plan, to all parts of the bed of the Waterway owned by the Grantor("Stream Corridor") and (b)the area(s) on the Property outside the Stream Corridor for the construction, installation and use of a parking area, trail and access road ("Outside Stream Corridor"). (Delete (b) if not applicable). Page 14 2. The Stream Corridorshall move consistent with the movement ofthe Waterwaythat occurs within the boundaries ofthe Property. 3. This Agreement is made to benefit the public by providing recreational access for fishing and boating and providing protectionsto the riparian buffer and is deemed to be a conservation easement as defined in Act 2001-29, P.L. 390, § 3, 32 P.S. § 5053 and Grantor, its heirs, successors and assigns shall maintain, protect and preserve the Easement Area and abide by the terms and conditions of this Fishing Access and ConservationAgreement in perpetuity. 4. The Easement Area shall forever be open to the public for fishing and boating usesPublic use shall be subject to the rules,regulations and/or limitations established presentlynin the future by Grantee to regulate fishing and boating activities. Public access to th(Stream Corridor shall be via the Waterway unless and to the extent(1)the Easement Area is accessible directly from the public right-of-way;or(2) an area has been identified by Grantee on the Easement Plan as a means of access for public use purposes. 5. No buildings or structures, except those listed in this paragraph, shall be erected in the Easemeb Area by the Grantor without the prior written permission of theGrantee. In addition to the structures and improvements identified on Exhibit A,he Grantee may erect or build the following within the Easement Area without the prior written permission 6 the Grantor:signage,trails, structures that enhance fishing opportunities or fish habitat and stream bank restoration and improvements. Upon mutual consent,the Grantor and/or Grantee may erect or build the following structures within the Easement Arm: docks,piers,boat launches and walkways.Such structures shall be available for public use. The Grantee may in its sole discretion make any necessary upgrades, repairs or modifications to the structures constructed by Grantee in the Easement Area. 6. The Grantee may have use of the Easement Area for stocking fish, improving stream habitat, and conducting other educational, scientific and resource management activities that are consistent with the purposes of this Agreement. 7. The Grantor may not do any of the following (a) adversely affect the natural flow of surface or underground waters into, within and out of the Easement Area;t)change the vegetative cover, general topography and stream frontage of the Easement Area from its conditions of the Agreement Date; (c)may not till the soil, grow crops, or harvest timber within the Easement Area without the prior written consent of the Grantee; and 0) dump or place ashes,trash, garbage, sewage,manure or other offensive material upon or in the Easment Area 8. The Grantor reserves the following rights: 4)to sell,give or otherwise convey the Easement Area, provided such conveyance is subject to the terms of this Easement;X)to use the Easement Area in the same manner as the"public"; (c)to use the water to water cattle and other livestock;0)to take any action permitted under law to remove from the Property persons entering the Easement Area for purposes other than those expressly authorized under this Agreement. 9. The Grantor reserves the fdlowing rights that the Grantor will have the right to enforce but the Grantee has no obligation to enforce: (a)to allow or disallow hunting and trapping in the Easement Area; and (b)to allow or disallow fishing from dusk to dawn in the Easement Area. Page 15 10. The Grantee shall be permitted at all reasonable times to inspect the Easement Area in order to ascertain if the above conditions are being observed and shall have the right of ingress and egress from the Easement Area across all contiguous lands owned b}the Grantor for the purpose of carrying out its rights and obligations under this Agreement. 11. In the event of a violation of thisAgreement, and in addition to any remedy now or hereafter provided by law,the Grantee or any other person or entity with staading may, following reasonable notice to Grantor, institute suit to enjoin said violation or to require the Grantor to comply with the terms of thisAgreement The successful party shall be entitled to recover all costs or expenses incurred in connectionwith such a suit, including all administrative costs, court costs and attorney's fees. Notwithstanding any other provision of this paragraph,the Grantee may,upon reasonable notice, enter upon the lands of the Grantor and remove any encroachment or obstruction in the Easement Area to secure and restore public fishing access. Grantor shall be liable for the costs of any such action byGrantee. 12. Grantor agrees that the Grantee may at its discretion,without prior notice to Grantor, convey and assign all or part of its rights and responsibilities contained herein to a third party. 13. Nothing in this Agreement shall limit the Grantor's ability to avail itself/themselves/himself/herselfof the protections offered by the Recreation Use of Land and Water Act,Act of February 2, 1966,P.L. (1965) 1860, No. 586, as amended, 68 P.S. § 4771 et seq. 14. The terms of this Agreementis binding on Grantor, its'their/his/herheirs, successors, and assigns in perpetuity and shall be inserted by Grantor verbatim or by expressreference in any subsequent deed or other legal instrument by which itthey/he/her encumbers or divests itself of either the fee simple title or any other lesser estate inthe Property or any part thereof. 15. The failure of the Grantee to exercise any rightor remedy granted under this instrument shall not have the effect.of waiving or limiting the exercise of any other right or remedy or the use of such right or remedy at any other time. 16. If any provision of this Agreement is found to be invalid,the remaider of the Agreement shall remain in full force and effect. 17. The Grantor certifies that the Property is, as of the Agreement Date, free and clear of all mortgages, liens and other encumbrances (collectively"Liens") or, if it is not,that Grantor has obtained and attached to this Agreement the legally binding subordination of any Liens affecting the Property as of the Agreement Date. 18. The Grantor hereby certifies that to the best of it&heir/his/herknowledge the Easement Area is not contaminated with hazardous or toxic waste and hazardous or toxic waste has not been stored or,Yc=,orated on the Lin .,t Aron hazard ii nri tnvir z� a O ----" - -'-�_; �.�__v_.. ?,C ?.,?....^...0 A.... _ . _.�t,agt-„are C,n.,. defined by the Pennsylvania Department of Environmental Protection Page 16 i9. NOTICE. The Conservation Easement may impairthe development of coal interests including workable coal seams or coal interests which have been severed from the Property. 20. Amendment to any provision of this Agreement is effective only if the amendment is in writing, signed by both parties and recordai in the Public Record. The Easement shall be a binding servitude upon the Easement Area on the Property and shall be deemed to run with the land. Execution of this Easement shall constitute conclusive evidence that Grantor agrees to be bound by the foregoing conditions and restrictions and to perform to obligations herein set forth. Intending to be legally bound, the parties, by their respective duly authorized representatives,have signed and delivered this Agreement as of the Agreement Date. WITNESS: FOR GRANTOR (date) ATTEST: FOR GRANTEE Administrative Secretary (date) Executive Director Pennsylvania Fish and Boat Commission .APPROVED AS TO FORM AND LEGALITY (Subject to Proper Execution) Authorized Agency Attorney(date) Deputy Attorney General (date) Page 17 EXHIBIT B Page 9 EXERCISE OF OPTION This option is hereby exercised on 3 a 0 `� by the PFBC and a photocopy of it has been sent by mail to the OPTIONOR at: 1013 Mumma Road, Suite 100, Lemoyne, PA 17043. ATTEST: PFBC: Pennsylvania Fish and Boat Commission -v/ Title .. 1j...�J�.�.F�. �' ............. Title ...... �... . 11 [ APPROVED AS TO LEGALITY AND FORM ;l uthori ed Agency Attorney (date) Office of the Attorney Genera (date) Pennsylvania Fish and Boat Commission Page 5 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY OFiC OF TWE fiuERI�F L.E -.U1' r ICE `S°i THE PROiH;4 ;A;c' I,:t f 201010V —5 Pit 3:146 CU PEt NSYLVANIiJ A Pennsylvania Fish & Boat Commission vs. Linlo Properties V, LP (et al.) Case Number 2014-6216 SHERIFF'S RETURN OF SERVICE 10/27/2014 03:49 PM - Deputy Christopher Sharpe, being duly sworn according to law, served the requested Complaint & Notice by handing a true copy to a person representing themselves to be Linda Lee Gates, Partner, who accepted as "Adult Person in Charge" for Linlo Properties V, LP at 1013 Mumma Road, Suite 100, Wormleysburg Borough, Lemoyne, PA 17043. CHRIST. ' ER SHARPE, DEPUTY 10/28/2014 03:49 PM - Deputy Christopher Sharpe, being duly sworn according to law, served the requested Complaint & Notice by handing a true copy to a person representing themselves to be Linda Lee Gates, Partner, who accepted as "Adult Person in Charge" for Linlo Management, LLC at 1013 Mumma Road, Suite 100, Wormleysburg Borough, Lemoyne, PA 17043. CHRIST sd'PHER'SHARPE, DEPUTY SHERIFF COST: $62.57 SO ANSWERS, October 28, 2014 RNY R ANDERSON, SHERIFF (c) CountySuite Sheriff, Te'eosoft. Inc. Gates & Associates, P.C. By: Lowell R. Gates, Esquire Attorney ID No. 46779 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Phone: (717) 307-2002 lrgates@linloproperties.corn Attorneys for Defendant F.D—OFF10E fl ;E Frs.:3 iiiTtIO 2i 314 NOV 19 4'i11:38 CUl-MERLAND COUNTY PEN:S YLVA NIA IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA FISH AND BOAT COMMISSION, Plaintiff, V. LINLO PROPERTIES V, LP AND LINLO MANAGEMENT E, LLC, Defendants ) ) ) ) ) ) ) ) ) ) ) NOTICE TO PLEAD Civil Action — Law & Equity Case No. 2014-6216 JURY TRIAL DEMANDED TO: Wayne Melnick, Esq., Assistant Counsel Pennsylvania Fish and Boat Commission P.O. Box 67000 Harrisburg, PA 17106-7000 You are hereby notified to file a written response to the enclosed Defendant Answer, New Matter and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully Submitted, Gates & Associates, PC 6)b426x*r Lowell R. Gates Attorneys for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA FISH AND BOAT COMMISSION, Plaintiff, v. LINLO PROPERTIES V, LP AND LINLO MANAGEMENT E, LLC, Defendants Civil Action — Law & Equity Case No. 2014-6216 JURY TRIAL DEMANDED ANSWER, NEW MATTER AND COUNTERCLAIMS Defendants, Linlo Properties V, LP and Linlo Management E, LLC ("Linlo Properties"), by and through its attorneys, Gates & Associates, P.C., hereby respond to the Complaint of Plaintiff, Commonwealth of Pennsylvania, Pennsylvania Fish and Boat Commission ("Commission"), in accordance with the numbered paragraphs as follows: THE PARTIES 1. Denied. After reasonable investigation, Linlo Properties is without information sufficient to form a belief as to the truth of the remaining averments contained in this paragraph, wherefore, strict proof, if relevant, is demanded at trial. 2. Admitted. 3. Admitted. 4. Admitted. 1 FACTS 5 Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 6. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 7. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 8. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 9. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 10. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 11. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 12. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 13. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 14. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 15. Denied. The averments contained in this paragraph are denied, wherefore, strict 2 proof, if relevant, is demanded -at trial. 16. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 17. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 18. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 19. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 20. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 21. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 22. Denied. The averments proof, if relevant, is demanded at trial. 23. Denied. The averments proof, if relevant, is demanded at trial. 24. Denied. The averments proof, if relevant, is demanded at trial. 25. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 26. Denied. The averments contained in this paragraph are denied, wherefore, strict contained in this paragraph are denied, wherefore, strict contained in this paragraph are denied, wherefore, strict contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 27. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 28. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 29. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. JURISDICTION AND VENUE 30. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 31. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 32. Denied. The averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. By way of further response, the entire easement in dispute is located on the southern bank of the Yellow Breeches Creek and, therefore, is completely within York County. COUNT I — BREACH OF CONTRACT 33. Linlo Properties hereby incorporates by reference it responses contained in paragraphs 1 — 32 of this Answer as if fully set forth herein. 34. Denied. This averment is a conclusion of law to which no response is required. By way of further response, the averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 4 35. Denied. This averment is a conclusion of law to which no response is required. By way of further response, the averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 36. Denied. This averment is a conclusion of law to which no response is required. By way of further response, the averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 37. Denied. This averment is a conclusion of law to which no response is required. By way of further response, the averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial 38. Denied. This averment is a conclusion of law to which no response is required. By way of further response, the averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. WHEREFORE, Linlo Properties demands this Honorable Court enter judgment in its favor and against Plaintiff Commission dismissing Count I of Plaintiffs Complaint with prejudice, together with costs, attorneys' fees, and such other relief as the Court may deem just and proper. COUNT II — SPECIFIC PERFORMANCE - EQUITY 39. Linlo Properties hereby incorporates by reference it responses contained in paragraphs 1 — 38 of this Answer as if fully set forth herein. 40. Denied. The averments containedin this paragraph constitute conclusions of law to which no response is required and/or refer to a writing which speaks for itself and any characterizations thereof are specifically denied. To the extent a response is required, the averments contained in this paragraph are specifically denied, wherefore, strict proof, if relevant, 5 is demanded at trial. 41. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required and/or refer to a writing which speaks for itself and any characterizations thereof are specifically denied. To the extent a response is required, the averments contained in this paragraph are specifically denied, wherefore, strict proof, if relevant, is demanded at trial. 42. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required and/or refer to writings which speak for themselves and any characterizations thereof are specifically denied. All other averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 43. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required and/or refer to writings which speak for themselves and any characterizations thereof are specifically denied. All other averments contained in this paragraph are denied, wherefore, strict proof, if relevant, is demanded at trial. 44. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required and/or refers to a writing which speaks for itself and any characterizations thereof are specifically denied. To the extent a response is required, it is specifically denied that monetary damages alone will not provide adequate relief to the Commission. To the extent a response is required, the averments contained in this paragraph are specifically denied, wherefore, strict proof, if relevant, is demanded at trial. 45. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required and/or refer to a writing which speaks for itself and any characterizations thereof are specifically denied. To the extent a response is required, the averments contained in this paragraph are specifically denied, wherefore, strict proof, if relevant, is demanded at trial. WHEREFORE, Linlo Properties demands this Honorable Court enter judgment in its favor and against Plaintiff Commission dismissing Count II of Plaintiffs Complaint with prejudice, together with costs, attorneys' fees, and such other relief as the Court may deem just and proper. NEW MATTER IN THE FORM OF AFFIRMATIVE DEFENSES 46. Linlo Properties hereby incorporates by reference the answers to paragraphs 1 through 45 as though fully set forth herein. 47. Plaintiff has failed to state claim against Linlo Properties upon which relief can be granted. COUNTERCLAIMS Defendant Linlo Properties V, LP, by and through its attorneys, Gates & Associates, P.C., by these Counterclaims against Plaintiff Commission, hereby avers: COUNT I — BREACH OF CONTRACT AND MISREPRESENTATION 1. Linlo Properties hereby incorporates by reference the answers to paragraphs 1 through 47 as though fully set forth herein. 2. Prior to the physical removal of the one large and two small dams, there was extensive preliminary engineering and surveying work, soil and environmental tests, and review 7 process by the various and numerous government agencies, including but not limited to the Plaintiff Pennsylvania Fish and Boat Commission, the Pennsylvania Department of Environmental Protection, the U.S. Environmental Protection Agency, the U.S. Army Corp of Engineers, the Pennsylvania Historic and Museum Commission, the Cumberland County Conservation District and the York County Conservation District. 3. Defendant Linlo Properties expended sizable amounts of money on engineering and other fees and costs, well in excess of $50,000.00, in an attempt to deal with and satisfy these numerous government agencies, and Defendant Linlo Properties continues to incur and expend large amounts of money on engineering and inspection fees. 4. These various government agencies repeatedly explained to Linlo Properties that the goal was to restore the land back to its pre -dam condition, or in other words, to restore the surrounding farm and wooded land back to its condition before the dams were built and installed. 5. However, shortly after the dams were removed and the majority of the restoration work was completed in the immediate vicinity of the three dams, Linlo Properties attempted to in -fill with soil the remnants of what had been the small mill stream. 6. This mill stream was excavated and built back in the 1750's as a source of water power to operate a grist mill on the property and, based on information and belief, the mill stream operated and flowed continuously until the dams were removed in August 2011. 7. When the dams were removed in August 2011, the water level behind the dams dropped approximately five feet and, as a result, the mill stream completely dried up. 8. During the entire dam review and removal process, the various government agencies represented that the land surrounding the dams and Yellow Breeches Creek were being 8 restored back to their pre -dam condition which included the restoration and in -fill of the abandoned mill stream. 9. The abandoned mill stream represents approximately one acre of land and, furthermore, the abandoned mill stream cuts off and separates another one acre of land rendering it much less valuable. 10. Linlo Properties attempted to in -fill the mill stream with soil, but was immediately stopped by employees of the Pennsylvania Department of Environmental Protection and the U.S. Army Corp of Engineers under threat of severe fines and penalties. 11. After further discussions by and among Linlo Properties, the Pennsylvania Department of Environmental Protection and the U.S. Army Corp of Engineers, the U.S. Army Corp of Engineers classified the abandoned mill stream as "wetlands" even though it clearly would not have been wetlands prior to the construction of the dams and excavation of the mill stream back in 1750's. 12. The various government agencies misrepresented the dam restoration project by misleading Linlo Properties into believing that the abandoned mill stream would revert back to useable farm and wooded land. 13. In effect, the Pennsylvania Fish and Boat Commission, the Department of Environmental Protection and the U.S. Army Corp of Engineers obtain what they desired which was the removal of the three dams, and then, afterwards, classified the abandoned mill stream as "wetlands" and effectively took the two acres of land without resorting to eminent domain. 14. After Linlo Properties and the various government agencies agreed to the dam removals and the scope of the restoration, now the U.S. and Pennsylvania governments want to 9 assert that the one acre area encompassing the abandoned mill stream should be wetlands and unusable land. 15. During the entire dam review and engineering study process, the various government agencies represented that Linlo Properties would invest $40,000.00 to cover the engineering costs as its contribution towards the dam removal and restoration project and the balance of the removal and restoration project would be funded by other third -parties. 16. The various government agencies insisted that Linlo Properties would have to contribute at least $50,000.00 towards the dam removal and restoration project, and to that end, the Pennsylvania Fish and Boat Commission and the Department of Environmental Protection insisted that Linlo Properties grant an access easement to satisfy its contribution amount. 17. To date, Linlo Properties has spent in excess of $61,000.00 in engineering fees and costs. 18. The various government agencies are requiring yearly and ongoing inspections and reports which will cause Linlo Properties to incur ongoing engineering fees and costs in the approximate amount of $5,000.00. 19. The various government agencies misrepresented the amount of engineering work which would be required, yet had within its control the ability to control the amount of engineering work needed to grant approvals. 20. The Pennsylvania Fish and Boat Commission and the Department of Environmental Protection insisted that Linlo Properties grant an access easement to satisfy its contribution amount despite the fact that these agencies knew or should have known that Linlo Properties would need to be spend much more money on fees and costs to obtain the approvals 10 which were completely within the control of the same government agencies. 21. The various government agencies, including the U.S. Army Corp of Engineers, misrepresented the restoration of the abandoned mill streams and, instead, classified the abandoned mill streams as "wetlands" rendering them unusable by Linlo Properties. 22. As a result of their misrepresentations, the various government agencies, including the U.S. Army Corp of Engineers, effectively confiscated the one -acre area of land cut off and separated by 'the abandoned mill stream. WHEREFORE, Linlo Properties demands this Honorable Court enter judgment in its favor as to Count I of its Counterclaim and against Plaintiff Commission by voiding the option agreement and for damages for the de facto taking of the two acres of land, together with interest, costs, attorneys' fees, and such other relief as the Court may deem just and proper. COUNT II UNJUST ENRICHMENT 23. Linlo Properties hereby incorporates by reference the averments contained in paragraphs 1 through 22 as though fully set forth herein. 24. Linlo Properties paid engineering fees and costs far in excess of the amount agreed to by and among all of the various government agencies, including the Pennsylvania Fish and Boat Commission. 25. Plaintiff and the other government agencies accomplished a de facto taking of the two acres of land consisting of the abandoned mill stream and the unusable adjoining land without conducting a proper eminent domain proceeding. 26. Plaintiff appreciated the benefits provided by Linlo Properties. 27. Plaintiff accepted and retained the benefits provided by Linlo Properties. 11 28. It would be inequitable for Plaintiff to retain the benefits provided by Linlo Properties without the receipt of value for the herein referenced benefits. WHEREFORE, Linlo Properties demands this Honorable Court enter judgment in its favor as to Count II of its Counterclaim and against Plaintiff Commission by voiding the option agreement and for damages for the excess engineering fees and costs paid by Defendant and for the de facto taking of the two acres of land, together with interest, costs, attorneys' fees, and such other relief as the Court may deem just and proper. November 17, 2014 By: 12 Respectfully submitted, GATES & ASSOCIATES, P.C. 0-ttoR6,7f?dr-- Lowell R. Gates, Esquire Attorney I.D. No. 46779 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Phone: (717) 307-2002 VERIFICATION I, Lowell R. Gates, verify that I am a member of Linlo Management E, LLC which is the general partner of Linlo Properties V, LP, and am authorized to execute this Verification on its behalf; that I have reviewed the foregoing Answer with New Matter and Counterclaim and verify the facts contained therein are true and correct to the best of my knowledge, information and belief. I further verify that these statements made by me are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: November 17, 2014 Linlo Properties V, LP By C9/11/iZr- (014.iief Lowell R. Gates, Member Linlo Management E, LLC, General Partner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA FISH AND BOAT COMMISSION, Plaintiff, V. LIN LO PROPERTIES V, LP AND LINLO MANAGEMENT E, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) JURY TRIAL DEMANDED ) Civil Action - Law & Equity Case No. 2014-6216 CERTIFICATE OF SERVICE I, Lowell R. Gates, Esquire, hereby certify that a true and correct copy of the foregoing Defendants Answer, New Matter and Counterclaims has been served this day upon the following counsel of record by United States first class mail, postage prepaid, addressed as follows: Wayne Melnick, Esq., Assistant Counsel Pennsylvania Fish and Boat Commission P.O. Box 67000 Harrisburg, PA 17106-7000 Dated: November 17, 2014 Respectfully Submitted, Wit (1-C"i3P-- Lowell R. Gates, Esq. PA ID # 46779 Gates & Associates, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Phone: 717-307-2002 lrgates@linloproperties.com 1HE PR0 HONG 21Th DEC -8 PP! t,:.10 UMBERLAND COUNTY PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, IN THE COURT OF COMMON PENNSYLVANIA FISH AND PLEAS OF CUMBERLAND BOAT COMMISSION COUNTY, PENNSYLVANIA Plaintiff v. LINLO PROPERTIES V, LP, and LINLO MANAGEMENT E, LLC Defendants • • • CIVIL TERM NO: 2014-6216 PRELIMINARY OBJECTIONS TO COUNTERCLAIMS AND NOW COMES the Plaintiff, the Commonwealth of Pennsylvania, Pennsylvania Fish and Boat Commission ("Commission"), by its attorney, Wayne S. Melnick, and files these Preliminary Objections to the Counterclaims filed by LINLO Properties V, LP and LINLO Management E, LLC (collectively, " Defendants") averring as follows: 1. On or about October 23, 2014, Plaintiff filed a civil Complaint at this docket. 2. On or about November 17, 2014, Defendants filed an Answer to that Complaint including Counterclaims. 3. Plaintiff now files the instant Preliminary Objections to the Defendants' Counterclaims pursuant to Pa. R. Civ. P. 1028. Page 1 Preliminary Objections Pursuant to Pa. R. Civ. P. 1028(a)(2) 4. Paragraphs 1 through 3 are incorporated by reference as though fully set forth below. 5. Pa. R. Civ. P. 1028(a)(2) allows a party to preliminarily object to a pleading if the pleading fails to conform to law or rule of court. 6. Defendants' Counterclaims fail to conform to the Pennsylvania Rules of Civil Procedure and Cumberland County Local Rules. 7. Defendants' Counterclaims appear to allege additional agreement or agreements beyond those alleged by Plaintiff in its Complaint. 8. Defendants have failed to allege whether the agreement or agreements are oral or written in violation of Pa. R. Civ. P. 1019(h). 9. If Defendants are alleging a written agreement or agreements, Defendants have failed to attach the written agreement or agreements in violation of Pa. R. Civ. P. 1019(i). 10. Defendants' Counterclaims are in violation of Pa. R. Civ. P. 1019(a) and (f) in that Defendants fail to provide the specifics of the alleged agreements with the U.S. Army Corps of Engineers and the Pennsylvania Department of Environmental Protection. WHEREFORE, for all the reasons set forth above, Plaintiff respectfully requests that this Honorable Court sustain Plaintiff's Preliminary Objections and dismiss Defendants' Counterclaims for failing to conform to law or rule of court pursuant to Pa. R. Civ. P. 1028(a)(2). Page 2 Preliminary Objections Pursuant to Pa. R. Civ. P. 1028(a)(3) 11. Paragraphs 1 through 10 are incorporated by reference as though fully set forth below. 12. Pa. R. Civ. P. 1028(a)(3) allows a party to object to a pleading if there is insufficient specificity in a pleading. 13. Defendants have not set forth sufficient facts regarding the Plaintiff's role in the alleged discussions regarding Defendants' engineering and investments, the alleged requirements of yearly and ongoing inspections, or the alleged designations of Defendants' property as wetlands. 14. Defendants have alleged involvement by a host of governmental entities, including the U.S. Army Corps of Engineers, the U.S. Environmental Protection Agency, the Pennsylvania Department of Environmental Protection, the Pennsylvania Historical and Museum Commission, the Cumberland County Conservation District, and the York County Conservation District, but have not set forth sufficient facts to determine what role, if any, was played by each of these agencies in the actions alleged by Defendants in their Counterclaims. WHEREFORE, for all the reasons set forth above, Plaintiff respectfully requests that this Honorable Court sustain Plaintiffs Preliminary Objections and dismiss Defendants' Counterclaims for failing to comply with Pa. R. Civ. P. 1028(a)(3). below. Preliminary Objections Pursuant to Pa. R. Civ. P. 1028(a)(5) 15. Paragraphs 1 through 14 are incorporated by reference as though fully set forth Page 3 16. Pa. R. Civ. P. 1028(a)(5) allows a party to object to a pleading for lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action. 17. Defendants allege in their Counterclaims, actions by the U.S. Army Corps of Engineers and the Pennsylvania Department of Environmental Protection to impose fines, require inspections and reports, designate Defendants' property as wetlands, and engage in a de facto taking of the Defendants' property. 18. Defendants' Counterclaims appear to challenge the propriety or legality of the actions by U.S. Army Corps of Engineers and the Pennsylvania Department of Environmental Protection. 19. The presence of the U.S. Army Corps of Engineers and the Pennsylvania Department of Environmental Protection is, if not indispensable, essential if the Court is to completely resolve the Defendants' Counterclaims and render complete relief. WHEREFORE, for all the reasons set forth above, Plaintiff respectfully requests that this Honorable Court sustain Plaintiff's Preliminary Objections and dismiss Defendants' Counterclaims for failing to comply with Pa. R. C. P. 1028(a)(5). Respectfully submitted by, COMMONWEALTH OF PENNSYLVANIA PENNSYLVANIA FISH AND BOAT COMMISSION Wayne Melnick Assistant Counsel Attorney ID # 53150 Pennsylvania Fish and Boat Commission P.O. Box 67000 Harrisburg, PA 17106-7000 Phone: 717-705-7810 Fax: 717-705-7811 Page 4 COMMONWEALTH OF PENNSYLVANIA, IN THE COURT OF COMMON PENNSYLVANIA FISH AND PLEAS OF CUMBERLAND BOAT COMMISSION COUNTY, PENNSYLVANIA Plaintiff v. LINLO PROPERTIES V, LP, and LINLO MANAGEMENT E, LLC Defendants • • CIVIL TERM NO: 2014-6216 Certificate of Service I, Wayne S. Melnick, hereby certify that a copy of the foregoing Preliminary Objections was served upon the following via United States Mail, First Class, Postage Prepaid: Lowell R. Gates Gates & Associates, PC 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Attorney for Defendants Date: December 8, 2014 Page 5 Wayne Melnick