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Home My WebLink About05-30020 OLD SCHOOLHOUSE CONDOMINIUM ASSOCIATION X. COCCA DEVELOPMENT LTD. Plaintiff Defendant TO: DEFENDANT NAMED HEREIN: : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No. lam/ ` C?u?-f LEGAL AND EQUITABLE CLAIMS NOTICE 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 defense 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 importance to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. 17 Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dial de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una Orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO OSI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA OLLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJOPARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-249-3166 *ndrew W. Barbin Atty. I.D. #43571 ANDREW W. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 (717) 506-4670 Counsel for Plaintiff DATED: ANDREW W. RARBIN, ESQOIRE Attorney I.D. 43571 ANDREW W. BARBIN, P.C. $020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 717/506-4670 OLD SCHOOLHOUSE CONDOMINIUM ASSOCIATION Plaintiff V. COCCA DEVELOPMENT LTD. Defendant Attorney for Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No. LEGAL AND EQUITABLE CLAIMS COMPLAINT Plaintiffs, Old Schoolhouse Condominium Association (OSCA), by and through undersigned counsel, file this Complaint Against Cocca Development, Inc. and aver as follows: Parties 1. Plaintiff, Old Schoolhouse Condominium Association (OSCA), is a nonprofit Pennsylvania office condominium association organized pursuant to the Pennsylvania Uniform Condominium Act, with property and principle place of business in Cumberland County Pennsylvania. 2. Defendant, Cocca Development Ltd. (Cocca), is an Ohio Limited Partnership, with property adjacent to OSOC in Cumberland County, Pennsylvania. 3. Plaintiff and Defendant are parties to an agreement entitled Reciprocal Easement Agreement and Releases (Easement or REAR Agreement) which has been recorded in Cumberland County at Book 712 page 2666 to 2677. See Exhibit A attached. 4. The claims in this complaint arise from and relate to the REAR Agreement concerning easements and covenants attaching to the property located in Cumberland County Pennsylvania. Jurisdiction and Venue 5. The incidents which give rise to this action arose and occurred in Cumberland County, Pennsylvania. 6. The action relates to easements and covenants regarding land located in Cumberland County Pennsylvania. 7. Jurisdiction and venue are proper in the court of common pleas of Cumberland County, Pennsylvania. Facts Common to All Counts 8. The individual members have a law suit pending in Cumberland County Court of Common Pleas at No. 04-267 (the Litigation) against the Winding Hill, LP and Mr. Eric Huck relating to the withdrawal of certain property from OSCA. 9. The gist of that action is that the land was withdrawn contrary to the limitations and restrictions of the Pennsylvania Uniform Condominium Act as the result of fraudulent inducement, negligent misrepresentations and breach of fiduciary duties by the defendants in that action. 10. The withdrawn property shares an access drive with OSCA and the withdrawal provisions required the formation of an agreement for maintenance of the joint drive. 11. A plot plan and aerial photograph are attached to provide orientation to the property in question. See Exhibit B. 12. The condition of the drive prior to commencement of construction is accurately depicted in Exhibit Cl. 13. To avoid involvement in the above Litigation regarding the propriety of the withdrawal, and to resolve obligations regarding the joint drive, Cocca entered into an agreement 2 with OSCA and the unit owners entitled Reciprocal Easement Agreement and Releases (Easement or REAR Agreement) with Plaintiff and the individual unit owners. See Exhibit A attached. 14. The Easement expressly provides that the common drive is not to be used by construction vehicles. Easement ¶1 ("but not construction equipment' ). 15. The Easement expressly forbids either party from placing a "barrier, structure or other obstruction" "upon any portion of the Common Driveway whatsoever ..." Easement ¶1. 16. Cocca has persistently violated the restrictions of the Easement by using the common driveway for all manner of heavy construction equipment, as demonstrated in photographs C2, C3. 17. It is believed and averred that the driveway was also used for ingress and egress for heavy equipment including the tractor/loader in C6 as well as all construction delivery vehicles. 18. The driveway was used for construction equipment ingress and egress not only at the front access indicated in C2, but also at the rear access depicted in C4 and C5 as indicated by the mud tracks on the drive in C4. 19. June 2, 2005 OSCA sent email to counsel for Cocca requesting that Cocca desist. 20. Despite acknowledging the clear language and intent of the agreement, Cocca provided no response until June 8, 2005 and continued to act in violation of the REAR Agreement between June 2, 2005 and June 8, 2005. 21. June 8, 2005, Cocca provided written assurance that Cocca would not continue to violate the agreement and "would not use that entrance after today," Exhibit D June 8, 2005 email. 3 22. However, instead of acting to comply with the acknowledged contractual obligations, Cocca proceeded to paint a line down the middle of the common drive and to erect a cone barrier at the lower access and park a truck across half of the drive at the upper access. See Exhibit C5. 23. After complaint by OSCA the cones were moved but the truck was not. 24. Cocca has purposefully blocked the upper end of the drive in a manner which blocks access for police, fire and emergency vehicles and creates a substantial safety risk. 25. This is of particular concern because the OSCA unit owners include doctors performing procedures on premises which periodically necessitate free access for ambulances. 26. Despite notice of these concerns and assurances of future compliance, the vehicle has not been moved. See Exhibit C5. 27. Cocca had made repeated false assurances of future compliance. See correspondence Exhibit D, emails of 6/8/05 12:44 (streaming communications from June 2, 2005 to that date). 28. When OSCA President Christopher Lucas, Esquire observed a violation of the written assurance previously provided, and attempted to provide a copy of the email to the site superintendent, the superintendent refused to accept it, and proceeded to make a complaint to police about an alleged "trespass" on the construction site. 29. This was followed by communication from counsel for Cocca to the effect that all communications should proceed through counsel in Ohio, despite the fact that the assurances on paper from counsel in Ohio had no positive effect on the actual conduct of Cocca personnel at the site in Pennsylvania. See Exhibit D, Email of 6/9/05 11:15 a.m. 4 30. The persistent violations, false assurances of future compliance and subsequent violations necessitated this Complaint and the Motion for Special Injunctive relief filed concurrently herewith. 31. Pursuant to the REAR Agreement, the parties agreed that a breach of paragraph 1 (such as by use for construction equipment or obstruction of the easement) would give rise to an action for equitable and legal relief as cumulative and concurrent remedies, and that attorneys fees relating thereto would be awarded as an additional contract remedy. 32. OSCA has incurred damage to its driveway as a result of the ingress and egress of heavy construction equipment; cracks in the drive are visible on the photograph. 33. OSCA members have been inconvenienced and have suffered loss of quiet enjoyment of property as the result of the ingress and egress of heavy construction equipment and obstruction of the easement. 34. Injunctive relief is necessary and appropriate to ensure compliance with contractual obligations which would otherwise evade review and be incapable of adequate vindication. Count I Breach of Contract 35. Paragraphs 1- 25 are incorporated as if restated verbatim. 36. Cocca has material breached its obligations under the REAR Agreement by causing construction equipment to traverse the drive and by purposefully obstructing the easement. 37. OSCA and its members were injured by the material breaches, as the result of damage to the driveway, willful obstruction of their right to the free use of the driveway and by loss of quiet enjoyment of the property. 5 38. OSCA seeks damages in the form of the cost to repair and resurface the drive way in an as yet undetermined amount believed to be in excess of $10,000, together with unliquidated damages for loss of unobstructed access and quiet enjoyment. 39. OSCA seeks attorney's fees through the date of judgment in accordance with the terms of the REAR Agreement. Wherefore, OSCA seeks judgment against Cocca for unliquidated compensatory and exemplary damages in an amount in excess of the local arbitration amount, together with interest, attorneys fees and such other relief as the court may deem just. Count II Injunctive Relief 40. Paragraphs 1 to 39 are incorporated by reference as if restated verbatim. 41. Assurances of future compliance without the force of legal sanction have proved illusory. 42. The damage from the obstruction of the drive and loss of quiet enjoyment are such as may not be fully and appropriately compensated by monetary damages alone. 43. Injunctive relief is necessary and appropriate to prevent recurring violations. 44. Use by construction equipment of employees agents and invitees should be enjoined. 45. Obstruction of the drive should be enjoined. 46. Cocca should be required to take necessary and appropriate steps to ensure compliance with the injunction by its employees, agents and invitees. 47. Cocca should be required to place the sum of $10,000 in escrow with OSCA pending completion of the construction and repair and resurfacing of the common drive. 6 Wherefore, OSCA seeks a permanent injunction in the form proposed enjoining Cocca and its invitees from using the common drive for construction vehicles or equipment of any kind and from obstructing any portion of the drive in anyway on pain of sanction for contempt and requiring Cocca to take such steps as are appropriate and necessary to ensure compliance with this restriction by all employees agents and invitees, together with attorneys fees and such other relief as the court may deem just. Attorney for Plaintiffs DATED: June 10, 2005 7 ANDREW W. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 717-506-4670 «EXgIBIT A,? Reciprocal Easement Agreement R and Releases This Roc I Easement Agreement ("RFAI) is made umim., 1, 201)4 by and R01 EV,= Voao house Condominium Association (the "Association'), a non-stock non-profit REOORL tWgf'kh of the members of the Association (the 'Unit Owners? and Cocoa O L „i `RL s"dt ,ft ttd , an Ohio limited partnership (with its sucoeasors and assigns from time to me during the riod of ownership by each, "Cocoa'). Zfhi OCT 26 BPI 10 5' Background The Association is the unit owner's association for Oki Schoolhouse, an Office Condominium (the "Condominium'), established by Declaration of Condominium (the "Original Dedaradon j in the Office of the Recorder of Deeds in and for Cumberland County in Book 424, Page 929, amended by First Amendment to Declaration of Condominium (the "First Amendment") recorded in Book 431, Page 1106 and Amendment to Declaration of Condominium (the "Second Amendment") recorded In Book 692, Page 1154 (collectively, the "Declaration"). The property now subject to the Declaration (the 'Condominium Property") Is Lot 6-A of the Final Resubdivision Plan for Lot No. 6 (the "Resubdivision Piet"), Cumberland Business Park, Upper Allen Township, Cumberland County, Pennsylvania, recorded in Plan Book 59, Pages 38 and 38A and also shown as Lot No. 6-A on the Final Declaration Plat and Plans for the Condominium (the 'Condominium Pier), recorded In Plan Book 64 beginning on Page 128. Cocoa is the owner of lots 6-13, 6-C and 6-D of the Resubdivision Plat (the "Cocoa Property"), which adjoin the Condominium Property (also shown as Lots 6-13, 6-C and 6-D of the Condominium Plat). Lots 6-B and e-D of the Resubdivision Plan were submitted to the provisions of the condominium ad in the Original Declaration subject to a reservation by the condominium declarant right to withdraw those lots for a period of seven years. In Section 2 of the First Amendment to Condominium, the condominium declarant reserved a thirty (30)-foot wide easement, centered over the property line between Lots 6-A and 6-B, over an existing driveway (the "Common Driveway") for vehicular and pedestrian ingress and provided that If Lot 6-B were withdrawn from the condominium, a mutually satisfactory agreement for the maintenance of the Common Driveway must be made between the Association and the purchaser of Lot 6-B. The Second Amendment extended the period for the withdrawal of, and withdrew, Lots 6-13 and 6-D of the Resubdivision Plat from the Condominium Property with the unanimous consent of the then owners of units of the Condominium. The purpose of this REA is for the Association, with the consent of all of the Unlit Owners, and Cocoa to agree upon the term for the maintenance of the Common Driveway and to resolve other potential disputes between the Unit Owners and Cocoa. Easements and Aareements 1. Grant. The Association and Cocoa grant to each other reciprocal, non-exclusive perpetual easements over and across the Common Driveway for pedestrian and vehicular (but not construction equipment) ingress and egress from the Condominium Property and the Cocoa Property to Cumberland Parkway. The Common Driveway is more specifically described within Exhibits A (Legal Description) and B (Site Plan) attached and Incorporated by reference. The easements created by this RFA shall be solely for the benefit of the Condominium Property and the Cocoa Properly; no interest in or right to use any part of the Common Drive shall ever be granted for the benefit of any other property. All of the Unit Owners consent to the easement granted by this REA and to all of the covenants, terms and conditions of this REA. No barrier, building, structures, or other obstruction shall hereafter be eroded, placed or located upon any BOOK 71;? PACE26C)6 portion of the Common Driveway whatsoever or upon portions of the Condominium Property or the Cocoa Property obstructions on which would interfere with access to the Common Driveway. The Association and Cocoa may keep, maintain, repair and replace the existing curbing within the Common Driveway as shown on Exhibit A and may install additional or reconfigured curbing so long as the curbing does not narrow the area available for the passage of vehicles without the consent of the Association and Cocoa. In the event of a breach, attempted breach or threatened breach of this Section 1, any other party shall be entitled to relief by Injunction, specific performance and any and all other legal and equitable relief from the consequences of such breach In addition to money damages. The party or parties against whom any remedy is granted or issued shall be liable to the party or parties bringing any suit or proceeding for all expenses and fees, including reasonable attomeys' fees, incurred for the prosecution of such suit or proceedings, which shall be subject to Section 4 of this REA. 2. Maintenance. Repair and Insurance. A. Initial Construction. Cocoa shall bear the costs and expense of improvements and/or renovations, If any, necessary in order to reasonably accommodate the development of Lots B, C and D. B. Maintenance, Repairs and Improvements. Cocoa shall maintain, repair and replace the Common Driveway, Including, without limitation, performing cleaning and janitorial work; snow removal; re-surfacing, repaving and restriping of pavement, as necessary in Cocoa's reasonable judgment. The Association and Cocoa, however, shall each maintain, repair and replace the curbing located on the Condominlum Property and the Cocoa Property respectively. C. Reimbursement. The Association shall reimburse Cocoa upon demand for twenty- five (25%) of all costs and expenses paid or incurred by Cocoa allocable to the Common Driveway. In the event that the Association falls to pay any amount, invoice or demand arising under this section within thirty (45) days of presentation, any outstanding amount due shall bear interest and be subject to the remedies as provided by Section 4 of this REA. Costs means amounts that Cocoa pays to any contractor and does not Include any administrative fee or overhead. D. insurance. Cocoa and the Unit Owners shall each maintain comprehensive public liability insurance covering injuries to persons and property due to occurrences taking place on the Common Driveway, with limits not less than irF5fteft.00 for Injuries to persons, and $500,000.00 or damages to property. ? 1 r coo, opp lei CxCL. ?.12t log/i/o/ E. Notice. Cocoa shall provide to the Association 45 days advanced notice of any capital improvements that it Intends to make under paragraph B prior to the start of construction or repair. Notice shall include Cocoa's estimated cost of the project and Cocoa's cost allocation, if any, between the Common Driveway and other portions of the project, if any. The Association shall have the right, at reasonable times, to view and copy construction documents and contracts pertaining to capital improvements to the Common Driveway. 3. Indemnities. Cocoa agrees to indemnify, defend and hold the Association and the Unit Owners, their successors and assigns, harmless against all claims, demands, causes of action, damages, Ilabilities and expenses, including reasonable attorneys' fees, and damages arising from occurrences upon the Common Driveway or the Cocoa Property regardless of the persons who may or may not be negligent or otherwise at fault. The Association and Unit Owners agree to indemnify, defend and hold Cocoa harmless against all claims, demands, BOOK 712 PAGE2e67 causes of action, damages, liabilities and expenses, including reasonable attorneys' fees, arising from occurrences upon the Condominium Property other than the Common Driveway regardless of the persons who may or may not be negligent or otherwise at fault. 4. Interest and Remedies: Lien. Money due and not paid according to this REA and judgments for damages for breach of this REA shall bear interest from the date due or the date judgment is awarded, at the greater of six percent per annum plus the Prime Rate of Interest published by the Wail Street Journal or twelve percent per annum. If the interest rate determined by the previous sentence exceeds the rate enforceable by law, the Interest rate Instead shall be the greatest rate enforceable by law. Money due according to the REA by the Association or the Unit Owners and not paid and judgments for breach of this REA by the Association or any Unit Owner shall be the joint and several obligation of the Association and each of the Unit Owners and shall be secured by a Ilen against each of the Units of the Condominium effective upon the recording of a notice In the Office of the Recorder of Deeds in and for Cumberland Parkway. The remedies specified in this REA shall be cumulative as to each and as to all other remedies at law or in equity. Notwithstanding anything to the contrary contained in this REA, mortgagees, deed of trust beneficiaries, and their respective successors, assigns, grantees-in-lieu-of-foreclosure or pumAmsem at foreclosure sale shall have absolutely no personal or entity liability for any obligation under this REA. 5. Affect of Declaration. This REA supercedes and replaces, and the Cocoa Property is released from, the provisions of the First Amendment relating to the Common Driveway and any other provision of the Declaration affecting in any way the Cocoa Property. 6 Term. The easements granted by this REA shall be perpetual. The provisions of this REA shall run with the Condominium Property and the Cocoa Property and shall remain in effect notwithstanding any termination of the Condominium or any conversion or withdrawal of any portion of the Condominium Property. The provisions of this REA other then those granting easements shall expire, If necessary, on the last day it must expire to avoid invalidation because of any rule against perpetuities. 7. Notices. Notices to the Association shalt be sent to 220 Cumberland Parkway, Suite 4 unless the Executive Board of the Association notifies Cocoa of a different notice address. Notices to the Unit Owners or their successors and assigns, shall be sent to the Unit owned by each. Notices to Cocoa shall be sent to 100 DeBartolo Place, Suite 400, Boardman OH 45512 unless Coosa, its successors or assigns, notifies the Association of a different notice address. 8. Raise . Disputes have arisen between some Unit Owners and predecessors in interest to the Cocoa Property, including the declarent of the Condominium and its mortgages, conceming the Cocoa Property and the Second Amendment. As a part of the consideration for this REA, the Association and each of the Unit Owners, for themselves, their owners and management and their successors and assigns, release Cocoa from all claims, demands and causes of action (collectively, "Claims") they may have against Cocoa and its partners, and all past and future liabilities, damages and expenses (collectively"Liabilities") arising from or relating all Claims, Including, In addition to all other Claims and Liabilities, all Claims and Liabilities relating to any allegation that the Second Amendment is invalid or its execution was fraudulently Induced; that the Association or any Unit Owner has any interest in the Cocoa Property; or that the Declaration has any affect on the Cocoa Property except to the extent, if any, of this REA. BOOK 712 PAGE2668 9. Interpretation. This REA may not be modified, amended or terminated In whole or in part without the written consent of all of Cocoa, all of the Unit Owners, and all mortgagees or beneficiaries under first mortgage or deed of trust of record encumbering any unit of the Condominium or any part of the Cocoa Property. The easements, covenants, terms and conditions contained in this REA shall inure to the benefit of and shall be binding upon Cocoa, the Unit Owners and their respective executors, administrators, legal representatives, successors and assigns. The invalidity of any provision of this instrument shall not affect the validity of any other provision. The captions contained in this instrument exist only for the purpose of convenient reference and In no way define, limit or prescribe the scope of this instrument. This instrument shall not be construed spinet either party by virtue of being considered the drafter of this Agreement. Executed on P 2004, each party intending to be legally bound. Cocoa Development, Ltd. By: Pen=Cocca, ner Old School house Condominium Association By its ' e A member of the Executive rd Print Name: r't+a.scmPeh#t_ I?>S By:1-21 o. ; 6 A member of the Executiv Board Print Name: AleIaN,e -'Do ULv.-lvm By: r yV- V - - A memberf??pf the Print Name: rAU ? BOOK 712 PAGE;)-669 Winding HRI Center L.P. By: Winding Hill Management Group, LLC It General Partner Owner of Units 1, 2 3 By: Its: Print Name: r v Owner of Unit 4 Christopher S. Lucas '?r(yd4--?? Melanie DeMartyn Owner of Unit 5 O -tn Owner of Units 6 and 7 By: Its: Print Name: \k W 5 900K 712 PACE2670 Mark Wilson Owner of Unit 8 Pennsylvania Association of Ubrariee Owner of Units 9 and 10 By: Its: c? T mM6YLV*K'r , LINAIV ft5aurfrigM Print Name: GkC4A R% rAj l LVfL 6 BOOK 7:12 PACEpG i 1 STATE OF OHIO ) ) SS: COUNTY OF MAHONING ) Before me, a Notary Public, in and for said County and State, personally appeared Anthony L. Cocoa, president of Penn-Ohio Mortgage, Inc., general partner of Cocoa Development, Ltd. who acknowledged that he, she or they did sign the foregoing instrument on behalf of the corporation and the limited partnership. IN TESTIMONY WHEREOF I have hereunto set my hand and official seal at Boardman, Ohio, this 6_ day o -,200 PkNTj1OZ% NOTARY PUBLIC WILLIAM ANTHONY MYERS NOTARY PUBLIC-STATE COMMOFSOHIO NO SMANION COVE • R.C. Ssollon 147.03 STATE OF PENNSYLVANIA) COUNTY OF CU (n ) SS: beto me,? Notary Public, In and for said County and State, personally appeared a y ad a member of the Executive Board of the Old Scf lhouse Condominium Association who acknowledged th=j m or thgy did sign the foregoing jnstrument on behalf of the pondominium association', Nu4h f '1 IN TESTIMONY WHEREOF, I have hereunto set Pennsylvania, this 2 LP day BOOK 7.12 PACE287 2 hand and official 4eal at rum 200 COMMONWEALTH OF PENNSYLVANIA ) SS: COUNTY OF ?I11?Y I m'I ) Before me, a Notary Public in Naga for said County and State, personally appeared NOW L a , a member of the Executive Board of the Old Schoolhouse Condom m Association who acknowledged that he, she or they did sign the foregoing Instrument on behatf of the condomlMum 9ssociatIoP4/?0! tIld1Yr d aAlf N TESTIMONY WHEREOF, I he a hereunto set Pennsylvania, this ?! (Y day of COMMONWEALTH OF PENNSYLVANIA ) (n ) SS: COUNTY OF 61A.Pb f.C," ) hand and official seal at nLg* 26 p Be r me, a Notary Public, in and for said County and State, personally appeared u fly a member of the Executive Board of the Old Schoolhouse Condominium Association who acknowledged that he, she or they did sign the foregoing Instrument on behalf of the condominium association. I TESTI ONY WHEREOF, I hreunto s hand d official I at Pennsylvania, this day o , 2807 8001( 712 PACE2673 ? i MIS Il1N COMMONWEALTH OF PENNSYLVANIA ) /J ) COUNTY OF SS: Lvw,=f?+.a:??\ ) Before me, a Notary Public, in and or ee-, who [on behalf IN TESTIMONY WHEREOF, I have hereunto eet my hand and official seal at i ?Pennsylvania, this e2 day of ?c?ltuKt? , Of NOTARY PUBLIC TH OF PENNSYLVANIA NdN'm Sad Charles E. R'OKW NOWY Pudic Em*PanmbDmT", Cw bwbM OMW wcmvwsdm Elpkes Sept 11, 2DD7 hlNeber, Pennsylvenla AssaWenn Of Nderles COMMONWEALTH OF PENNSYLVANIA ) COUNTYOF r, I#Ja I SS: Before me, /0 did said be, personal appeared who I meat ion behalf and o I seat at WA&,--_, 2004 7O I TESTIMONY WHEREOF, I have _ reulrto set Pennsylvania, this day Bov 712 PACE?-6 i 4 9 COMMONWEALTH OF PENNSYLVANIA ) ) SS: COUNTY OF ? I 1 ) Before me,aNot?rY Public, in and for said County and State, personally appeared M acknowledged that he she or they did sign the foregoing Instrument [on behalf of •] IN TESTIMONY WHEREOF, I haye_ hereunto set )ny hand and official ?.,seal at U, PenrrsyNania, this ,?YITM dey r(`,f\,1-1?1K/{- l#11 t all COMMONWEALTH OF COUNTY OF VANIA ) SS: Before me, a Notary Public, • and said County and State, personally appeared who acknowledged that he, she or th did sign the foregoing instrument [on behalf of •) IN TESTIMONY WHERE I he hereunto set my hand and official seal at PennsyN a, this day of 2000 NOTARY PUBLIC BOOK 7.12 FACE 2675 10 EXHIBIT "A„ LEGAL DESCRIPTION ALL THAT CERTAIN PIECE, PARCEL OR LOT OF LAND, LYING BEING AND SITUATE IN UPPER ALLEN TOWNSHIP, CUMBERLAND COUNTY, COMMONWEALTH OF PENNSYLVANIA, SAID PARCEL BEING DESCRIBED AS FOLLOWS: BEGINNING AT A POINT AT THE INTERSECTION OF THE SOUTHERLY RIGHT OF WAY LINE OF CUMBERLAND PARKWAY AND THE WESTERLY RIGHT OF WAY LINE OF GETTYSBURG PIKE, SAID POINT BEING THE POINT OF INTERSECTION OF THE TANGENTS OF THE RIGHT OF WAY CURVE; THENCE ALONG CUMBERLAND PARKWAY, THE FOLLOWING COURSES AND DISTANCES; N 70°53'44" W 23.89 FEET TO A POINT AT THE POINT OF CURVATURE OF THE RIGHT OF WAY LINE; THENCE N 70053'4,V' W 139.80 FEET TO A POINT; THENCE N 73°30'28" W 163.74 FEET TO A POINT AT THE TRUE PLACE OF BEGINNING, SAID POINT BEING S 73°30'28" E 15.00 FEET FROM THE NORTHWEST CORNER OF LOT 6-B OF THE FINAL RESUBDMSION FOR LOT NO. 6, CUMBERLAND BUSINESS PARK, AS RECORDED IN PLAN BOOK 59, PAGES 38 AND 39 (ALSO KNOWN AS LOT 6-B ON THE FINAL DECLARATION PLAT AND PLANS FOR THE OLD SCHOOLHOUSE, AN OFICE CONDOMINIUM); THENCE THROUGH LOT 6-B IN SAID PLAT AT A DISTANCE OF 15 FEET FROM AND PARALLEL TO THE WEST PROPERTY LINE OF SAID LOT 6-B, S 16°29'32" W 146.32 FEET TO A POINT; THENCE CONTINUING THROUGH LOT 6-B AND 15 FEET FROM AND PARALLEL TO THE WEST PROPERTY LINE OF LOT 6-8 IN SAID PLAT, S 01 003'03" W 220.05 FEET TO A POINT ON THE SOUTH PROPERTY LINE OF LOT 6-B IN SAID PLAT; THENCE S 88°56'57" W 30.00 FEET TO A POINT, SAID POINT BEING S 88056'57" W 15.00 FEET FROM THE SOUTHWEST CORNER OF LOT 6- B IN SAID PLAT; THENCE THROUGH LANDS OF THE COMMON AREAS OF OLD SCHOOLHOUSE, AN OFFICE CONDOMINIUM, ALONG A LINE 15 FEET FROM AND PARALLEL TO THE WEST PROPERTY LINE OF LOT 6-B IN SAID PLAT, N 01*03'03" W 224.67 FEET TO A POINT; THENCE CONTINUING THROUGH LANDS OF THE COMMON AREAS OF OLD SCHOOLHOUSE, AN OFFICE CONDOMINIUM, 15 FEET FROM AND PARALLEL TO THE WEST PROPERTY LINE OF LOT 6-11 IN SAID PLAT, N 16°29'32" E 150.95 FEET TO A POINT ON THE SOUTHERLY RIGHT OF WAY LINE OF CUMBERLAND PARKWAY; THENCE ALONG THE SOUTHERLY RIGHT OF WAY LINE OF CUMBERLAND PARKWAY, S 73030'28" E 30.00 FEET TO A POINT AT THE TRUE PLACE OF BEGINNING. In Cumberland County i'<\ BOOK 7.12 PAU 261 s Recorder of Deeds _T_... ?J?"?O ? ??o• Ab+v Y El 9 s W b a. 4 w 11 N? P) yr ?w a? F s 8-Y 10'1 m 0 J ?YT "'ps Qb ti ;k 600!( 7.1.2 PALE 26 i 7 a o tr 00 0 N Q h [n 0 e -? } J J ??y) Q O r Z Z W U W n N 0 M Uj a o 00 to M. s[ ? 000 II C) U Z ? W J J J U 4 Q ? U W V) a N S 8 Return to: Penn-Ohio Title LLC 100 DeBartolo Place, Suite 400 Boardman OH 44512 «EXHIBIT B F^+9 p?a 3E? az 33? a 1 rA?u Na?' asb ?'C y2 ¢r i gg y£?a 6°, o j yf 44a ??09 pa`un} eix?? _ Y S ?3a 21 SA 02:4 Oa mS5 Fiy c Sws3 ¦iig Fp}}u?5 a suo3rcd` ? W °zA 'i ow 0 W r Z 'r ? Q I , J W N n $ C m ?m 3 a ? co = bgs°x a e b °?SSS S Q ` a>a°a°a° S = ? VI ngN y ° ? RS S o ? U y i Alt- /?WO?•?e we'?PO •o s i+ j f dyye o {? rYO lellA Mx CaxnM MexA° F % el. IC .! ll`` t er e p e d t ddd ? / x?w.r?. ,• J ja • LS x r ? e ob rw; I 4' e 83na ILO 'a ? SSS pia°a°a° ar ! * Q Q us Q.N u^nnu $yEY e Z N ; .00 !ca C J ?o°LLds N W ZC Z Wd ZL 9n 26. ? ? ? ? `?- 'Yd•A1N000 oNtllUadWflo » rr sawn do ;ae^.oas . awl 10 ]oidjo•alotona s Z n 4r? J dome "EXHIBIT C" MOD a Ir1 ?:.T. i ?rt ?ii ? t h9w?r s t. '? Sr T. ?*w C ., "?; ,{ • ':; rro:° i? y. f ~ `Y ?., e v? {j t y y?? PA'S '. 11? i ? l ?'af' ?. ? 11•W4h?'? 3 o? 5 ? 7M ^+, t i ?fS rs ti 6 ?. -' _? ?k?? 5 t1 r ?9? J??s i_ i i § ?? ?? ?.. iii i. 4 ? S?. I ` +?? 4 v ,A •? 1 ?'L4 3 ?:y < A y-0~ .?rl } he "EXHIBIT D" Christopher Lucas From: William A. Myers [bmyers@coccadevelopment.comj Sent: Wednesday, June 08, 2005 12:44 PM To: Christopher Lucas Subject: FW: Cumberland Parkway Right of Way Please see Mr. Cocca's reply below. I apologize for the delayed response. ----------------------------------------------------- William A. Myers, General Counsel -----Original Message----- IFrom: Anthony Cocca [mailto:acocca@coccadevelopment.com] Sent: Wednesday, June 08, 2005 12:41 PM ITO: bmyers@coccadevelopment.com Subject: RE: Cumberland Parkway Right of Way ?We will tell them not to use that entrance after today. -----Original Message----- IFrom: William A. Myers [mailto:bmyers@coccadevelopment.com] Sent: Wednesday, June 08, 2005 12:34 PM ITO: 'Anthony Cocca' Subject: RE: Cumberland Parkway Right of Way Lucas has called again. What can I tell him? William A. Myers, General Counsel -----Original Message----- From: William A. Myers [mailto:bmyers@coccadevelopment.com] Sent: Thursday, June 02, 2005 5:49 PM TO: 'Anthony Cocca' Subject: FW: Cumberland Parkway Right of Way He is correct. The REA says that the easement is "for pedestrian and vehicular (but not construction equipment) ingress and egress..." Can we tell them to use another entrance? ----------------------------------------------------- William A. Myers, General Counsel -----Original Message----- IFrom: Christopher Lucas [mailto:cslucas@lucashealthlaw.com] (Sent: Thursday, June 02, 2005 4:14 PM ITO: bmyers@coccadevelopment.com ISubject: Cumberland Parkway Right of Way Bill, I Heavy dump trucks are using the right of way. I believe that this Icontravenes our agreement that construction equipment would not use Ithe right of way. The foreman, Greg, will take instructions on this Ifrom Anthony. Please advise on the status of this issue so that we scan decide how to proceed. Thank you. I Christopher S. Lucas, Esq. (Health Care Law and Government Relations 220 Cumberland Pkwy. Ste. 4 IMechanicsburg, PA 17055 1717.691.0203 phone 1717.691.3130 fax lwww.lucashealthlaw.com 1 NOTICE: This e-mail transmission, including any attachments, may contain confidential information protected by the attorney-client or other legal privilege. Unauthorized use, distribution or copying is prohibited. If you received this e-mail in error, please notify the sender by reply e-mail or by calling 717.691.0203 and then delete the erroneous transmission from your system without copying it. Thank you. Christopher Lucas From: William A. Myers [bmyers@coccadevelopment.comj Sent: Wednesday, June 08, 2005 1:45 PM To: Christopher Lucas Cc: 'Anthony Cocca' Subject: RE: I disagree with your analysis. Breach would be grounds for injunction and damages. You need fraud or mutual mistake for rescission. Not going to happen. ----------------------------------------------------- William A. Myers, General Counsel -----Original Message----- From: Christopher Lucas [mailto:cslucas@lucashealthlaw.com] Sent: Wednesday, June 08, 2005 12:44 PM To: Bill Myers Subject: Bill, As you recall, this easement was consideration for a release of your client from an claim to a defect in title. A material breach may permit my clients to void the agreement. Please don't let that happen. Direct you client to cease using that right of way - including the bottom of the right of way. There is easy access of both Cumberland Parkway and Winding Hill and there is no excuse for a continued breach. Christopher S. Lucas, Esq. Health Care Law and Government Relations 220 Cumberland Pkwy. Ste. 4 Mechanicsburg, PA 17055 717.691.0203 phone 717.691.3130 fax www.lucashealthlaw.com NOTICE: This e-mail transmission, including any attachments, may contain confidential information protected by the attorney-client or other legal privilege. Unauthorized use, distribution or copying is prohibited. If you received this e-mail in error, please notify the sender by reply e-mail or by calling 717.691.0203 and then delete the erroneous transmission from your system without copying it. Thank you. 1 Christopher Lucas From: Christopher Lucas Sent: Thursday, June 09, 2005 10:03 AM To: 'William A. Myers' Subject: Settlement Offer Bill, I am in the process of retaining counsel for the Association to bring a TRO, injunction and damages action against Cocca. Our primary concern is that the weight of the equipment is leaving ruts in the drive and cracking the pavement. Under the terms of the REA, we would appear to be 1/2 responsible for the cost of repair. This is not acceptable. Prior to filing suit, I offer to Cocca the following settlement proposal: If Cocca will agree not to block the right of way, and to indemnify the Association for the first resurfacing of the driveway, the Association will forbear filing suit. Please advise. Christopher S. Lucas, Esq. Health Care Law and Government Relations 220 Cumberland Pkwy. Ste. 4 Mechanicsburg, PA 17055 717.691.0203 phone 717.691.3130 fax www.lucashealthlaw.com NOTICE: This e-mail transmission, including any attachments, may contain confidential information protected by the attorney-client or other legal privilege. Unauthorized use, distribution or copying is prohibited. If you received this e-mail in error, please notify the sender by reply e-mail or by calling 717.691.0203 and then delete the erroneous transmission from your system without copying it. Thank you. Christopher Lucas From: Christopher Lucas Sent: Thursday, June 09, 2005 9:39 AM To: 'William A. Myers' Subject: Right of Way Issue Bill, There is a construction vehicle parked in the right of way. It is parked on a blind corner at the top of the hill and presents a danger to two-way traffic. Would you please have it moved? Christopher S. Lucas, Esq. Health Care Law and Government Relations 220 Cumberland Pkwy. Ste. 4 Mechanicsburg, PA 17055 717.691.0203 phone 717.691.3130 fax www.lucashealthlaw.com NOTICE: This e-mail transmission, including any attachments, may contain confidential information protected by the attorney-client or other legal privilege. Unauthorized use, distribution or copying is prohibited. If you received this e-mail in error, please notify the sender by reply e-mail or by calling 717.691.0203 and then delete the erroneous transmission from your system without copying it. Thank you. 2 Christopher Lucas From: Christopher Lucas Sent: Thursday, June 09, 2005 10:35 AM To: 'William A. Myers' Subject: Settlement Offer Bill If you need more time to consider my settlement offer, let me know. Otherwise, if I do not hear from you by 3 p.m, today, I will presume that your client has rejected it. Christopher S. Lucas, Esq. Health Care Law and Government Relations 220 Cumberland Pkwy. Ste. 4 Mechanicsburg, PA 17055 717.691.0203 phone 717.691.3130 fax www.lucashealthlaw.com NOTICE: This e-mail transmission, including any attachments, may contain confidential information protected by the attorney-client or other legal privilege. Unauthorized use, distribution or copying is prohibited. If you received this e-mail in error, please notify the sender by reply e-mail or by calling 717.691.0203 and then delete the erroneous transmission from your system without copying it. Thank you. Christopher Lucas From: Christopher Lucas Sent: Thursday, June 09, 2005 10:32 AM To: 'William A. Myers' Importance: High Bill, The Board has authorized legal action. Two things first. First, please remove the barriers, they are silly and really are not appropriate. Second, the truck that forms the top barrier, if you will not remove it, Drs. Allen, Myers and Pepper have asked me to ask your client to please pull it back about 24^ so that the Upper Allen ambulance can get through. They are performing surgery and, from time to time, require an ambulance. Christopher S. Lucas, Esq. Health Care Law and Government Relations 220 Cumberland Pkwy. Ste. 4 Mechanicsburg, PA 17055 717.691.0203 phone 717.691.3130 fax www.lucashealthlaw.com NOTICE: This e-mail transmission, including any attachments, may contain confidential information protected by the attorney-client or other legal privilege. Unauthorized use, distribution or copying is prohibited. If you received this e-mail in error, please notify the sender by reply e-mail or by calling 717.691.0203 and then delete the erroneous transmission from your system without copying it. Thank you. 1 Christopher Lucas From: William A. Myers [bmyers@coccadevelopment.comj Sent: Thursday, June 09, 2005 11:15 AM To: Christopher Lucas Cc: Anthony L. Cocca Subject: RE: Settlement Offer The repairs and improvements you are concerned about are our responsibility under 2A of the REA. They are not subject to the 25% reimbursement provision of 2C. We are talking to our people and contractors on the site to make sure they understand the need to keep your access clear. I understand that you came onto our side of the property, climbed upon some of our equipment and made demands. Human nature being what it is, this did not promote the on-site workers inclination to resolve your objections. We have told them to calm down and hope you will do the same. It will be substantially more productive to address concerns through me as no matter how right or wrong you may be they will take orders from management here rather from you. --------------------------------- William A. Myers, General Counsel -----Original Message----- From: Christopher Lucas [mailto:cslucas®lucashealthlaw.com] Sent: Thursday, June 09, 2005 10:03 AM To: William A. Myers Subject: Settlement Offer Bill, I am in the process of retaining counsel for the Association to bring a TRO, injunction and damages action against Cocca. Our primary concern is that the weight of the equipment is leaving ruts in the drive and cracking the pavement. Under the terms of the REA, we would appear to be 1/2 responsible for the cost of repair. This is not acceptable. Prior to filing suit, I offer to Cocca the following settlement proposal: If Cocca will agree not to block the right of way, and to indemnify the Association for the first resurfacing of the driveway, the Association will forbear filing suit. Please advise. Christopher S. Lucas, Esq. Health Care Law and Government Relations 220 Cumberland Pkwy. Ste. 4 Mechanicsburg, PA 17055 717.691.0203 phone 717.691.3130 fax www.lucashealthlaw.com NOTICE: This e-mail transmission, including any attachments, may contain confidential information protected by the attorney-client or other legal privilege. Unauthorized use, distribution or copying is prohibited. If you received this e-mail in error, please notify the sender by reply e-mail or by calling 717.691.0203 and then delete the erroneous transmission from your system without copying it. Thank you. 1 VERIFICATION I, Christopher S. Lucas, duly elected President of Old Schoolhouse A Business Condominium Association, hereby affirm that the forgoing legal action has been authorized by a unanimous vote of the Board of Directors, that the facts contained in the foregoing document are true and correct to the best of my knowledge and belief, and that I am authorized to verify the facts contained in the foregoing legal action. I make the forgoing affirmation subject to the penalties provided for unworn falsification to authorities provided in 18 Pa. C.S. §4904. Date: I (o / b S Christopher S. Lucas '?'M1M1? v\ ^? D? C ?G .j ?.? c . P + o c? .,,rn n? ?' o _=?t > r? ,. , " -e -r -; S: Chi y r ?`, ? ??ri C7 :v c . _.- ?° -< v? OLD SCHOOLHOUSE CONDOMINIUM ASSOCIATION : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vii. No. aS - 3voZ - C.', COCCA DEVELOPMENT LTD. LEGAL AND EQUITABLE CLAIMS Defendant AFFIDAVIT OF CHRISTOPHER LUCAS, ESQUIRE I, Christopher Lucas, am an adult male citizen of Pennsylvania. 2. I am duly elected President of the Old Schoolhouse Condominium Association, and the Complaint and Motion filed herewith were duly authorized by vote of the Board at a duly noticed meeting. 3. The documents attached to the Complaint are true and correct copies of the REAR Agreement, emails received by me, and plans and photographs accurately depicting conditions at the property. 4. The factual averments of the Complaint and Motion are true and correct based on observations I personally made and communications in which I participated: Cocca, its employees and agents have used the common drive for construction equipment, and have obstructed the drive in the manner described in the complaint. 5. Good faith attempts to secure voluntary compliance failed to cause a cessation of the conduct and resulted in expanded violations to the point where the association believes compliance will not be forthcoming without the injunctive relief requested. 6. I verify that the above affidavit and the statements contained therein are true and correct to the best of my knowledge, information and belief and that I understand that this Affidavit and any false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unworn falsification to authorities. 7. Further affiant sayeth not CHRISTOPHER LUCAS, ESQUIRE 14 +v O n r ,; U U L LFi c ANDREW W. RARnw, ESQUIRE Attorney I.D. 43571 ANDREW W. HARDIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 717(506-4670 OLD SCHOOLHOUSE CONDOMINIUM ASSOCIATION Plaintiff Vi. Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. d'j - 3c?? Z ?', J COCCA DEVELOPMENT LTD. LEGAL AND EQUITABLE CLAIMS Defendant MOTION FOR SPECIAL AND PRELIMINARY INJUNCTIVE RELIEF Plaintiffs, Old Schoolhouse Condominium Association (OSCA), by and through undersigned counsel, file this Motion for Special and Preliminary Injunctive Relief, and aver as follows: Parties 1. Plaintiff, Old Schoolhouse Condominium Association (OSCA), is a nonprofit Pennsylvania office condominium association organized pursuant to the Pennsylvania Uniform Condominium Act, with property and principle place of business in Cumberland County Pennsylvania. 2. Defendant, Cocca Development Ltd. (Cocca), is an Ohio Limited Partnership, with property adjacent to OSOC in Cumberland County, Pennsylvania. 3. Plaintiff and Defendant are parties to an agreement entitled Reciprocal Easement Agreement and Releases (Easement or REAR Agreement) which has been recorded in Cumberland County at Book 712 page 2666 to 2677. See Exhibit A attached. 4. A Complaint is filed concurrently herewith which asserts claims which arise from and relate to the REAR Agreement concerning easements and covenants attaching to the property located in Cumberland County Pennsylvania. Jurisdiction and Venue 5. The incidents which give rise to this action arose and occurred in Cumberland County, Pennsylvania. 6. The action relates to easements and covenants regarding land located in Cumberland County Pennsylvania. 7. Jurisdiction and venue are proper in the court of common pleas of Cumberland County, Pennsylvania. Summary of Relevant Facts 8. The individual members have a law suit pending in Cumberland County Court of Common Pleas at No. 04-267 (the Litigation) against the Winding Hill, LP and Mr. Eric Huck relating to the withdrawal of certain property from OSCA. 9. The gist of that action is that the land was withdrawn contrary to the limitations and restrictions of the Pennsylvania Uniform Condominium Act as the result of fraudulent inducement, negligent misrepresentations and breach of fiduciary duties by the defendants in that action. 10. The withdrawn property shares an access drive with OSCA and the withdrawal provisions required the formation of an agreement for maintenance of the joint drive. 11. A plot plan and aerial photograph are attached to provide orientation to the property in question. See Exhibit B. 9 12. The condition of the drive prior to commencement of construction is accurately depicted in Exhibit Cl. 13. To avoid involvement in the above Litigation regarding the propriety of the withdrawal, and to resolve obligations regarding the joint drive, Cocca entered into an agreement with OSCA and the unit owners entitled Reciprocal Easement Agreement and Releases (Easement or REAR Agreement) with Plaintiff and the individual unit owners. See Exhibit A attached. 14. The Easement expressly provides that the common drive is not to be used by construction vehicles. Easement ¶1 ("but not construction equipment'). 15. The Easement expressly forbids either party from placing a "barrier, structure or other obstruction" "upon any portion of the Common Driveway whatsoever..." Easement ¶1. 16. Cocca has persistently violated the restrictions of the Easement by using the common driveway for all manner of heavy construction equipment, as demonstrated in photographs C2, C3. 17. It is believed and averred that the driveway was also used for ingress and egress for heavy equipment including the tractor/loader in C6 as well as all construction delivery vehicles. 18. The driveway was used for construction equipment ingress and egress not only at the front access indicated in C2, but also at the rear access depicted in C4 and C5 as indicated by the mud tracks on the drive in C4. 19. June 2, 2005 OSCA sent email to counsel for Cocca requesting that Cocca desist. 10 20. Despite acknowledging the clear language and intent of the agreement, Cocca provided no response until June 8, 2005 and continued to act in violation of the REAR Agreement between June 2, 2005 and June 8, 2005. 21. June 8, 2005, Cocca provided written assurance that Cocca would not continue to violate the agreement and "would not use that entrance after today." Exhibit D June 8, 2005 email. 22. However, instead of acting to comply with the acknowledged contractual obligations, Cocca proceeded to paint a line down the middle of the common drive and to erect a cone barrier at the lower access and park a truck across half of the drive at the upper access. See Exhibit C5. 23. After complaint by OSCA the cones were moved but the truck was not. 24. Cocca has purposefully blocked the upper end of the drive in a manner which blocks access for police, fire and emergency vehicles and creates a substantial safety risk. 25. This is of particular concern because the OSCA unit owners include doctors performing procedures on premises which periodically necessitate free access for ambulances. 26. Despite notice of these concerns and assurances of future compliance, the vehicle has not been moved. See Exhibit C5. 27. Cocca had made repeated false assurances of future compliance. See correspondence Exhibit D, emails of 6/8/05 12:44 (streaming communications from June 2, 2005 to that date). 28. When OSCA President Christopher Lucas, Esquire observed a violation of the written assurance previously provided, and attempted to provide a copy of the email to the site 11 superintendent, the superintendent refused to accept it, and proceeded to make a complaint to police about an alleged "trespass" on the construction site. 29. This was followed by communication from counsel for Cocca to the effect that all communications should proceed through counsel in Ohio, despite the fact that the assurances on paper from counsel in Ohio had no positive effect on the actual conduct of Cocca personnel at the site in Pennsylvania. See Exhibit D, Email of 6/9/05 11:15 a.m. 30. The persistent violations, false assurances of future compliance and subsequent violations necessitated this Complaint and the Motion for Special Injunctive relief filed concurrently herewith. 31. Pursuant to the REAR Agreement, the parties agreed that a breach of paragraph 1 (such as by use for construction equipment or obstruction of the easement) would give rise to an action for equitable and legal relief as cumulative and concurrent remedies, and that attorneys fees relating thereto would be awarded as an additional contract remedy. 32. OSCA has incurred damage to its driveway as a result of the ingress and egress of heavy construction equipment; cracks in the drive are visible on the photograph. 33. OSCA members have been inconvenienced and have suffered loss of quiet enjoyment of property as the result of the ingress and egress of heavy construction equipment and obstruction of the easement. 34. Injunctive relief is necessary and appropriate to ensure compliance with contractual obligations which would otherwise evade review and be incapable of adequate vindication. 35. The request for relief is adequately supported by the documents attached to the Complaint and the Affidavit of Christopher Lucas, Esquire. 12 REQUESTED SPECIAL AND PRELIMINARY RELIEF 35. The rights of OSCA are clear as indicated by the admissions in the email of counsel for Cocca. 36. Violations continued and expanded despite the admissions, and assurances of future compliance without the force of legal sanction have proved illusory. 37. The damage from the obstruction of the drive and loss of quiet enjoyment are such as may not be fully and appropriately compensated by monetary damages alone; consequently, injunctive relief is necessary and appropriate to prevent recurring violations. 38. Use of the Common Drive by construction equipment of Cocca its employees, agents and invitees should be enjoined. 39. Obstruction of the drive by Cocca and its employees, agents and invitees should be enjoined. 40. Cocca should be required to take necessary and appropriate steps to ensure compliance with the injunction by its employees, agents and invitees. Wherefore, OSCA seeks a special injunction in the form proposed, pending a hearing on whether the special injunction should be cone Attorney for Plaintiffs DATED: June 10, 2005 13 ANDREW W. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 717-506-4670 ANDREW W. RARBIN, ESQUIRE Attorney I.D. 43571 ANDREW W. BARBIN, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 71715064670 OLD SCHOOLHOUSE CONDOMINIUM ASSOCIATION Plaintiff viii. Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. COCCA DEVELOPMENT LTD. LEGAL AND EQUITABLE CLAIMS Defendant CERTIFICATE OF SERVICE I, Andrew W. Barbin, Esquire, hereby certify that I am this day serving a copy of the foregoing documents upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by email to bmevers(a),coccadevelopment.com and by depositing a copy of the same in the United States Mail, Mechanicsburg, Pennsylvania, with first-class postage prepaid, as follows: WILLIAM A. MYERS, GENERAL COUNSEL COCCA DEVELOPMENT LTD. 100 DeBartolo Place, Suite 400 Boardman, Ohio, 45512 Z j / d W. Barbin At . 43571 Andrew W. Barbin, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 717-506-4670 Date: June 10, 2005 15 r? ? ? 4 ?- 'Ti CF; - C?- f} fS1` '_'' . _ ?. 4 ? c ry ? -o -`4 Y ? ., :? ? 1 t ? rN, :- f ? 4't G - F' Curtis R. Long Prothonotary office of the Protbonotarp Cumberianb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor C).q _ 3002 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square 6 Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573