HomeMy WebLinkAbout05-4808Jack F. Hurley, Jr., Esquire
Attorney J.D. No. 24414
John M. Coles, Esquire
Attorney I.D. No. 87398
Timothy J. Nieman, Esquire
Attorney I.D. No. 66024
RHOADS & SINON LLP
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorney for Plaintiffs
Jennifer L. Delaye &
Drew J. Miller
Plaintiffs
V.
Safet Klovo
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
NO. DS' Iq i'Dtl ?tUL? I
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this Complaint and
Notice are served, by entering a written appearance personally or by attorney and filing in writing
with the Court your defenses or objections to the claims set forth against you. You are warned that
if you fail to do so the case may proceed without you and a judgment: may be entered against you by
the Court without further notice for any money claimed in the Complaint or for any other claim or
relief requested by the Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA
(717) 249-3166
578038.1
Jack F. Hurley, Jr., Esquire
Attorney I.D. No. 24414
John M. Coles, Esquire
Attorney I.D. No. 87398
Timothy J. Nieman, Esquire
Attorney I.D. No. 66024
RHOADS & SINON LLP
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorney for Plaintiffs
Jennifer L. Delaye & IN THE COURT OF COMMON PLEAS
Drew J. Miller
Plaintiffs
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL ACTION
Safet Klovo
Defendant NO.
ACTION FOR DECLARATORY JUDGMENT t
NOW COME Plaintiffs Jennifer L. Delaye and Drew J. Miller, by their attorneys, Rhoads
& Sinon LLP, and file the within Action For Declaratory Judgment pursuant to Section 7533 of
the Pennsylvania Judicial Code, 42 Pa.C.S.A. §7533, as follows:
Statement of Parties
1. Plaintiff Jennifer Delaye ("Delaye") is an adult individual with her principal place
of business at 2213 Old Gettysburg Road, Camp Hill, Pennsylvania 17011.
2. Plaintiff Drew J. Miller ("Miller") is an adult individual with his principal place
of business at 2213 Old Gettysburg Road, Camp Hill, Pennsylvania 17011.
3. Defendant Safet Klovo ("Klovo") is an adult individual residing at 149 Faith
Circle, Carlisle, Pennsylvania 17013.
Statement of Jurisdiction and Venue
4. This action seeks a Declaratory Judgment pursuant to Section 7533 of the
Pennsylania Judicial Code, 42 Pa. C.S.A. §101 et. seg. for an interpretation of Delaye and
Miller's rights and Klovo's obligations under the Lease Purchase Agreement dated February 11,
2004.
5. This Honorable Court is the proper venue for this action pursuant to Rule
1006(a)(2) as the real property which is the subject matter of the action is located within
Cumberland County, Pennsylvania. Pa.R.Civ.P. 1006(a)(2).
COUNTI
(Delaye & Miller v. YJovo)
(Declaratory Judgment)
6. The averments of Paragraphs 1 through 5 above are incorporated herein by
reference.
7. At all times relevant to this litigation, Delaye and Miller owned and continue to
own the property known as 2025 Carlisle Road, Lower Allen Township, Camp Hill,
Pennsylvania ("Premises").
8. On February 11, 2004, Delaye and Miller entered into a written Lease Purchase
Agreement ("Agreement") with Klovo pursuant to which Klovo leased the Premises from Delaye
and Miller and agreed to purchase the Premises on the terms and conditions provided in the
Agreement. (A copy of the Agreement is attached hereto as Exhibit "A" and incorporated herein
by reference.)
9. Pursuant to Section 1.10 of the Agreement, Klovo was required to obtain and
maintain public liability insurance naming Klovo as insured, as well as Delaye and Miller as
additional insureds:
3
1.10 Insurance. During the Term of this Agreement, Lessee shall obtain and
maintain public liability insurance with a minimum single limit for personal
injury in an amount of $500,000 per incident and $1,000,000 in the aggregate, and
for property and casualty damage in an amount of $1,000,000. Such insurance
shall name both Lessee and Lessor as insureds. Said policy will be an all risks
policy.
(b) During the Term of the Agreement, Lessee shall maintain fire and
extended coverage insurance on the Premises in an amount at least equal to the
full fair insurable value of all improvements erected upon the Premises as such
improvements may exist from time to time with insurance companies licensed to
do business in the Commonwealth of Pennsylvania. Such insurance shall name
Lessor and Lessee as co-insureds, as their interest may appear, and shall provide
that the proceeds of any loss shall be payable to Lessor. Lessor shall hold such
proceeds in trust for payment to Lessee. Lessor shall release such proceeds in the
form of progress payments which shall be released to parties or firms which may
be hired to perform restoration of the Premises as hereinafter provided in this
Agreement. Notwithstanding anything to the contrary stated herein, the Lessor
will maintain insurance on the building in a minimum amount to be determined
by Lessor.
(c) Lessee shall provide Lessor with a certificate of insurance in a
form acceptable to Lessor to the extent of the aforementioned limits and amounts,
which certificate shall be subject to cancellation only upon ten. (10) days notice to
Lessor.
10. Although the Agreement was executed on February 11, 2004, Klovo failed to
procure insurance by December 31, 2004.
11. By letter dated December 31, 2004, Delaye notified K lovo that he was required to
carry liability insurance and present to her a certificate of insurance. (A copy of the December
315` letter is attached hereto as Exhibit "B" and incorporated herein by reference.)
12. By February 18, 2005, more than one year after the execution of the Agreement,
Klovo bad yet to procure insurance or present a certificate of insurance to Delaye or Miller.
13. By letter dated February 18, 2005, Delaye notified Klovo a second time regarding
his obligation to procure insurance and demanding Klovo provide Delaye with a certificate of
insurance by February 25, 2005 at 12:00 p.m., listing Delaye as an additional insured. (A copy
of the February 18`h letter is attached hereto as Exhibit "C" and incorporated herein by
reference.)
4
14. Klovo produced a Certificate of Insurance ("Certificate") from Western Heritage
Insurance Co. with an issuance date of April 11, 2005, listing Delaye and Miller as additional
insureds. (A copy of the Certificate is attached hereto as Exhibit "D" and incorporated herein by
reference.)
15. Effective July 25, 2005, Western Heritage Insurance Co, cancelled the above
policy due to non-payment of premium. (A copy of the notice of cancellation dated July 5, 2005
from Western Heritage Insurance Co. is attached hereto as Exhibit "B" together with a copy of
the September 8, 2005 letter from Gunn-Mowery LLC to Delaye and Miller containing the
explanation for the cancellation of Western Heritage Insurance and are. incorporated herein by
reference.)
16. The Agreement permits Delaye and Miller to terminate; the Agreement upon the
occurrence of an "Event of Default:"
1.16 Effect of an Event of Default. Upon the occurrence of any Event of
Default, Lessor shall have the following remedies:
(b) This Agreement shall, at Lessor's option, terminate and become void...
(Agreement, § 1. 16.)
17. Klovo's failure to obtain and maintain insurance as required by Section 1.10 of
the Agreement constituted an "Event of Default" as defined in Section 1.15(b) of the Agreement:
1.15 Default. Each of the following shall be an "Event of Default"
hereunder:
(b) The failure to perform, violation or breach by Lessee of any of the terms,
covenants or conditions hereof, which failure, violation or breach shall continue
unremedied by Lessee for a period of thirty (30) days after written notice thereof
shall have been given to Lessee by Lessor.
(Agreement, §1.15.)
18. As stated in Paragraphs I I and 13, Delaye provided Klovo written notification of
Klovo's failure to provide insurance on two separate occasions.
19. Klovo failed to remedy the situation within the contractual thirty (30) day period
after receiving those notifications.
20. Klovo's failure to obtain and maintain insurance on the Premises constituted an
"Event of Default" as that term is defined in Section 1.15 of the Agreement.
21. Klovo's default triggered Delaye and Miller's right to terminate the Agreement
pursuant to Section 1.16 of the Agreement.
22. By letter dated July 21, 2005, Delaye and Miller, through their counsel, Rhoads &
Sinon LLP, notified Klovo that the Agreement had been terminated pursuant to Section 1.16 for
failure to comply with and provide satisfactory evidence of the insurance coverage required
under Section 1.10 of the Agreement and failure to remedy this breach within thirty (30) days
after written notice from Delaye and Miller. (A copy of the July 21" letter is attached hereto as
Exhibit "F" and incorporated herein by reference.)
23. By letter dated August 22, 2005, Delaye and Miller, through their counsel,
Rhoads and Sinon LLP, notified Klovo that, pursuant to Section 1.16(b)(i) of the Agreement,
they had taken possession of the leased premises, "re-keyed" the locks and had changed the
utility services to the their names. (A copy of the August 22nd letter is attached hereto as Exhibit
"G" and incorporated herein by reference.)
24. The August 22nd letter referenced in Paragraph 15 further notified Klovo that he
would be permitted to access the premises for the purpose of removing any personal property
until September 15, 2005.
25. Klovo resists the termination of the Agreement on the ground that he had paid the
premiums required by Western Heritage Insurance Co.
26, Delaye and Miller seek to re-let and/or sell the premises.
27. There exists a real and actual controversy between Delaye; Miller and Klovo over
the legality of the termination of the Agreement.
28. This controversy has precluded DeLaye and Miller from re-letting and/or selling
the Premises.
29. Delaye and Miller seek a declaration that, pursuant to Sections 1. 10, 1.15 and 1.16
of the Agreement, the Agreement was lawfully terminated.
30. The interests of the parties will best be served if this Court enters a Declaratory
Judgment setting forth the rights of the parties with respect to this dispute.
31. The relief sought by Delaye and Miller will be of immediate practical help in
resolving this dispute.
32. A Declaratory Judgment is particularly appropriate for issues of interpretation of
contracts and other writings such as are at issue here, including a declaration of the parties' rights
thereunder. 42 Pa.C.S.A. §7533.
33. A decision by this Court will serve to terminate the controversy and remove the
uncertainty giving rise to this proceeding. 42 Pa.C.S.A. §7536.
34. Without a declaration of this Court regarding Delaye and Miller's lawful
termination of the Agreement, Delaye and Miller will be harmed as they will be unable to re-let
and/or sell the Premises until such a declaration is obtained.
35. Delaye and Miller have rightfully terminated the Agreement and seek a decree
from this Court confirming this determination.
WHEREFORE, Plaintiffs Jennifer L. Delaye and Drew J. Miller respectfully request that
this Court enter a Declaratory Judgment as follows: (a) declare that Defendant's failure to obtain
and maintain insurance constituted an "Event of Default" under the terms of the Lease Purchase
Agreement; (b) declare that the Lease Purchase Agreement has been lawfully terminated as a
result of Defendant's default; (c) declare Defendant forever barred from asserting any right, lien,
title or interest in the property arising under the Lease Purchase Agreement; and (d) grant such
other relief as this Court deems appropriate under the circumstances.
Respectfully Submitted,
RHOADS & SINON LLP
By: 1 11 o 4
ck F. Hurley, Jr., wire
John M. Coles, Esquire
Timothy J. Nieman, Esquire
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Jennifer L. DeLaye &
Drew J. Miller
VERIFICATION
I, Drew J. Miller, depose and say, subject to the penalties of 18 Pa. C.S. § 4904 relating
pLe,,? 'T'
/17 GG 2
(Printed Name}
to unworn falsification to authorities, that the facts set forth in the foregoing are true and correct
to the best of my knowledge, information and belief.
1
Date: zjo S/
Dr 4J. filler
X
ff
-k ?
LEASE PURCHASE AGREEMENT
THIS LEASE PURCHASE AGREEMENT (the "Agreement") is made as of the I L_ day
of February, 2004 by and among Jennifer L. Delaye, an adult individual, and Drew J. Miller, an
adult individual (hereinafter collectively referred to as the "Lessor"), and Safet Klovo, an adult
individual (hereinafter referred to as the "Lessee").
WITNESSETH:
ARTICLE I: LEASE
1.1 Lease.
(a) Premises. Lessor does hereby lease to Lessee that property known as
2025 Carlisle Road, Lower Allen Township, Camp Hill, Pennsylvania, asmore fully described
on Exhibit A attached hereto and made a part hereof (the "Premises"),
(b) Equipment. Lessor does hereby lease to Lessee the following
equipment to be used on the Premises: See Exhibit B
1.2 Use. Lessee shall have the right to use the Premises for any lawful purpose. All
uses of the Premises by Lessee shall be in conformity with all applicable laws, ordinances and
regulations of all governmental bodies and agencies. Lessors acknowledge that Lessee intends to
use the Premise as a restaurant.
1.3 Term. The term of this Agreement (the "Tenn") shall be for a period of three (3)
years commencing on March 1, 2004 and ending on February 28, 2007. Lessee may have access
prior to March I" for doing improvements or renovations as agreed by Lessor.
1.4 Rent. The rent for the Premises (including the Equipment) shall be as set forth
below and shall be payable monthly in advance on the first (I") day of each succeeding Month in
immediately available United States dollars (the "Rent") at 2213 Old Gettysburg Road, Camp
Hill, Pennsylvania 17011, or such other place as Lessor shall designate. Lessee shall pay a late
fee equal to five percent (5%) of the Rent then due in the event such Rent is not paid by the tenth
(10`h) day of the month in which it is due.
For the period from March 2004 to February 2005, the Rent shall be $2,100 per month.
For the period from March 2005 to February 2006, the Rent shall be $2,175 per month. For the
period from March 2006 to February 2007, the Rent shall be $2,250 per month. Upon the
execution of this Agreement, Lessee shall pay the first month's rent and a security deposit of
$3,000.
1.5 Net Rent Taxes: Utilities and Charges.
(a) During the Term and any extension thereof, Lessee shall pay to Lessor, as
additional rent, on the first (151 day of each month, one-twelfth (1/12) of all state, county,
township and other real estate taxes and assessments, ordinary and extraordinary, including
school taxes, imposed upon or assessed against the Premises tinder any laws now or hereafter
enacted. The initial monthly payment shall be $271,01.
(b) Throughout the Term of this Agreement, Lessee shall pay and discharge
all charges for utilities consumed or utilized by Lessee in the operation of its business upon the
Premises, including without limitation, heating, air conditioning, electricity, gas, refuse, water
rent and sewer rent.
1.6 Condition of Premises. Lessee acknowledges and understands that Lessor is
not making any warranty, express or implied, with respect to the quality, condition or fitness for
a particular purpose of any of the Premises including, without limitation, equipment and fixtures,
and Lessee accepts all of the Premises "AS IS" AND "WITH ALL FAULTS" IN THE
CONDITION NOW EXISTING AND, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH
IN THIS AGREEMENT, LESSOR EXPRESSLY DISCLAIMS TO LESSEE AND TO ALL
THIRD PARTIES ANY AND ALL WARRANTIES CONCERNING THE CONDITIN OF THE
PREMISES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION ANY
IMPLIED OR EXPRESS WARRANTY OF QUALITY, CONDITON OR
MERCHANTIBLITY, AND ANY IMPLED OR EXPRESS WARRANTY OF FITNESS FOR
A PARTICULAR PURPOSE.
1.7 Maintenance, Alterations and Repairs.
(a) Lessee shall be responsible, at its sole expense, for the maintenance and
repair of the Premises, including all lawns, shrubbery and paved areas and for keeping the
sidewalks, driveways and parking areas on the Premises clean and free of snow or ice
accumulation. Lessee shall keep the roof, foundation and outside walls, parking lot and sidewalk
in good state of repair during the Term of the Agreement. Lessee shall also keep in a good state
of repair equipment, heating, electrical, plumbing, and air conditioning systems servicing the
Premises during the term of this Agreement. Should Lessor be required by law or other duly
constituted authority to make any alterations, improvements or other changes to the Premises,
Lessee shall be responsible for such changes at its sole expense.
(b) Lessee, at its sole discretion and expense an upon prior written approval of
the Lessor, may make alterations and modifications to the Premises which Lessee may deem
appropriate.
(c) Lessee shall pay all bills incurred by it in connection with the
maintenance, alteration or repair of the Premises on a timely basis. If Lessee has a dispute with
respect to any bill so as to present a good faith obstacle to timely payment, then the Lessee will
make appropriate arrangements to indemnify Lessor with respect to any mechanic's lien.
(d) No alteration shall be undertaken by Lessee until it shall have first secured
and paid for all permits and authorizations of all municipal departments and governmental
subdivisions having jurisdiction. Any alterations by Lessee shall be made promptly
(unavoidable delays excepted) and in a good workmanlike manner and in compliance with all
applicable permits, authorizations, and building and zoning laws and with all other requirements
of all governmental authorities having jurisdiction.
(e) The Premises shall at all times be free of liens for labor and materials
supplied or claimed to have been supplied to the Premises in conjunction with alterations
performed by Lessee. If any mechanics' lien or other liens, charges or orders for the payment of
money shall be filed against Lessor, the Premise or any portion thereof on account of any
alterations, maintenance or repair performed by or for Lessee, Lessee shall indemnify and save
harmless Lessor against and from all costs, liabilities, suits, penalties and demands, including
reasonable attorneys' fees and expenses, resulting therefrom and at Lessee's own cost and
expense cause the same to be discharged of record or bonded within ninety (90) days after
written notice from Lessor to Lessee of the filing thereof. Lessee shall riot permit any
mechanics' lien or similar liens to remain upon the Premises on account of any such alterations,
modifications or repairs. Lessee may, however, contest the validity of any such lien or claim
provided Lessee shall upon demand give Lessor reasonable security to insure payment and to
prevent any sale, foreclosure or forfeiture of the Premises by reason of such nonpayment. Upon
the final determination of the validity of any such lien or claim, Lessee shall immediately pay
any judgment or decree rendered against Lessee, Lessor or the Premises, with all proper costs
and charges and shall cause such lien to be released of record without cost to Lessors.
(g) In the event that this Agreement is terminated as a result of an Event of
Default by Lessee (as defined below), all additions, improvements and alterations made in or to
the Premises by either Lessor or Lessee shall become the property of the Lessor and be
surrendered with the premises at the termination of the Agreement or, at Lessor's option, be
removed at the expense of Lessee and the Premises restored to its original condition. Lessee's
failure to remove its fixtures or any of its property at the termination of the Term of the
Agreement shall, at Lessor's option, be deemed abandonment of such property.
1.8 Construction. Lessee shall be responsible for the construction of any
improvements to the Premises.
1.9 Assignment and Subletting. Lessee shall not assign this Agreement nor sublet all
or any part of the Premises without the prior written consent of the Lessor, except that Lessee
may sublet the premises to Carol Zimmerman. Any attempted assignment without consent by
Lessor may, at the option of the Lessor, be treated as an offer to terminate this Agreement. Any
consent by Lessor to the assignment of this Agreement may be conditioned upon the assignee
assuming the full and faithful performance of all the terms and conditions of this Agreement and
upon the continued liability of the Lessee under all the terms hereof. Any consent by the Lessor
to any subletting shall be conditioned upon the express agreement by the subtenant to be bound
by all the terms, covenants, conditions and restrictions of this Agreement applicable to Lessee.
1.10 Insurance.
(a) During the Term of this Agreement, Lessee shall obtain and maintain
public liability insurance with a minimum single limit for personal injury in an amount of
$500,000 per incident and $1,000,000 in the aggregate, and for property and casualty damage in
an amount of $1,000,000. Such insurance shall name both Lessee and Lessor as insureds. Said
policy will be an all risks policy.
(b) During the Term of this Agreement, Lessee shall maintain fire and
extended coverage insurance on the Premises in an amount at least equal to the full fair insurable
value of all improvements erected upon the Premises as such improvements may exist from time
to time with insurance companies licensed to do business in the Commonwealth of Pennsylvania.
Such insurance shall name Lessor and Lessee as co-insureds, as their interest may appear, and
shall provide that the proceeds of any loss shall be payable to Lessor. Lessor shall hold such
proceeds in trust for payment to Lessee. Lessor shall release such proceeds in the form of
progress payments which shall be released to parties or firms which may be hired to perform
restoration of the Premises as hereinafter provided in this Agreement. Notwithstanding anything
to the contrary stated herein, the Lessor will maintain insurance on the building in a minimum
amount to be determined by Lessor. ,
(c) Lessee shall provide Lessor with a certificate of insurance in a form
acceptable to Lessor to the extent of the aforementioned limits and amounts, which certificate
shall be subject to cancellation only upon ten (10) days notice to Lessor.
1.11 Destruction or Damage to Premises. Damage to or destruction of the
improvements on the Premises or any portion thereof by fire or other casualty shall not terminate
this Agreement or entitle Lessee to surrender the Premises or to any abatement of or reduction in
the Rent or otherwise affect the respective obligations of the Lessor or Lessee.
1.12 Inspection. Lessor and its agents and employees, or any other person
authorized by Lessor, shall have the right to inspect the Premises and to enter the Premises at all
reasonable times not interfering with the operation by Lessee of its business upon the Premises
for the purpose of inspecting the Premises and making any repairs that may be necessary to cause
the Premises to comply with the laws, rules and regulations of any governmental authority
having jurisdiction or that may become necessary by reason of the failure of Lessee after notice
is provided to maintain the Premises as required under the terms of this Agreement.
1.13 Surrender of Premises. Upon the termination or expiration of this
Agreement pursuant to Section 1.15 or 2.9, Lessee will vacate and surrender the premises in the
good order and repair in which the Premises were at the beginning of the Term, ordinary wear
and tear expected. Lessee will remove all dirt, rubbish, waste and refuse from the Premises and
shall also remove all Lessee's personal property. Lessee shall give Lessor possession of the
Premises not later than noon on the date of termination, and the Lessor shall have the same rights
to enforce this covenant by action of ejectment and damage or otherwise as for the breach of any
other condition or covenant of this Agreement.
1.14 Ouiet Eniovment. Lessee, subject to the terms and provisions of this
Agreement, on payment of all sums due hereunder and performing all the other terms and
conditions of this Agreement, shall lawfully, peaceable and quietly have, hold and enjoy the
Premises during the term hereof without hindrance or ejection by Lessor.
1.15 Default. Each of the following shall be an "Event of Default hereunder:
(a) The failure of Lessee to pay any installment of Rent, additional rent or any
other sum due and payable to Lessor by Lessee hereunder and within ten (10) days after written
demand for payment has been made to Lessee by Lessor.
(b) The failure to perform, violation or breach by Lessee of any of the terms,
covenants or conditions hereof, which failure violation or breach shall continue unremedied by
Lessee for a period of thirty (30) days after written notice thereof shall have been given to Lessee
by Lessor.
(c) The abandonment by Lessee of the Premises or the removal or attempted
removal by Lessee, except in the ordinary course of business, of any goods or property from the
Premises without having paid and satisfied Lessor in full for all Rent and additional rent and
other charges then due or that may thereafter become due until the expiration of the Term of the
Agreement.
(d) The insolvency of Lessee as evidenced by an assignment by Lessee for the
benefit of creditors, a petition in bankruptcy being filed by Lessee, the adjudication of Lessee as
a bankrupt, the filing against Lessee of a petition for appointment of a receiver of all or any part
of Lessee's assets or property, either in bankruptcy or other insolvency proceedings, unless such
proceeding shall be stayed or dismissed within sixty (60) days after the filing thereof, or the levy
against any portion of the assets or property of Lessee by the Sheriff or other designated
authority of any governmental subdivision having jurisdiction thereover.
1.16 Effect of an Event of Default. Upon the occurrence of any Event of Default,
Lessor shall have the following remedies:
(a) The balance of all Rent and additional rent and other charges to become
due throughout the Term of the Agreement shall, at the option of Lessor, be accelerated and shall
be immediately due and payable.
(b) This Agreement shall, at Lessor's option, terminate and become void and:
(i) Lessor may re-enter the Premises, breaking open locked doors if
necessary to effect entrance, without liability to prosecution or action for damages for such entry
or for the manner thereof, for the purpose of distraining or levying and for other purposes, and
take possession of and sell such goods and chattels at auction, and shall pay out of the proceeds
all Rent, additional rent and any other amounts due and unpaid; and
(ii) Proceed by landlord's warrant or other process to distrain and
collect for the total amount so due or any part thereof.
1.17 Remedies Cumulative. No termination of this Agreement, nor taking or
recovering of possession of the Premises, shall deprive Lessor of any remedies or actions against
Lessee for monies owed hereunder or damages for breach of any covenant herein contained, nor
shall the bringing of any such action for monies owed hereunder or breach, nor the resort to any
other remedy herein provided, be construed as a waiver of the right to insist upon a forfeiture and
to obtain possession in the manner herein set forth.
1.18 Estoppel Certificate. Lessee shall execute, acknowledge and deliver to Lessor at
any time within ten (10) days after request by Lessor a written statement: required of any
mortgagee of the Premises to the effect that this Agreement, as of the date of the statement, is
unmodified and in full force and effect (or if there have been modifications, that this Agreement
is in full force and effect, as modified), the date of commencement of the Agreement, the dates
on which Rent and any additional rent has been paid, and such other information as Lessor shall
reasonably request. Any statement by Lessee shall be used by Lessor for delivery to and reliance
upon by prospective purchasers and lenders and shall not affect Lessee's right later to assert a
subsequent default or modification.
ARTICLE lI: SALE
2.1 Sale of the Premises. Lessor agrees to sell, assign, transfer and convey to Lessee,
and Lessee agrees to purchase from Lessor, on the Closing Date (as defined below) and upon the
terms and conditions stated herein, good, marketable and insurable fee simple absolute title to the
Premises (the "Sale Transaction").
2.2 Purchase Price.
(a) Amount of Purchase Price. The purchase price for the Premises (the
"Purchase Price) shall be:
(i) $217,000 if the purchase and sale of the Premises is consummated
on or before February 1, 2005;
(ii) $212,000 if the purchase and sale of the Premises is consummated
after February 2, 2005 and on or before February 1, 2006; or
(iii) $207,000 if the purchase and sale of the Premises is consummated
after February 2, 2006 and on or before January 31, 2007.
(b) Payment of the Purchase Price and Delivery of Closing Documents by
Lessee. The Purchase Price shall be paid in full by the Lessee to the Lessor in United
States Dollars by cash or certified check on the Closing Date (as defined below). At Closing,
Lessee shall deliver to Lessor all documents reasonably required for the consummation of the
transactions contemplated hereby.
2.3 Delivery of Deed and Closing Documents by Lessor. At Closing (as
defined below), Lessor shall deliver to Lessee a special warranty deed (the "Deed") duly
executed, acknowledged and in recordable fonn conveying good and marketable title to the
Premises to Lessee and such other documents reasonably required for the consummation of the
6
transactions contemplated hereby. Upon the execution of this Agreement, Lessor will provide a
copy of Lessor's title insurance policy and all exclusions therein will be deemed acceptable by
Lessee.
2.4 Closing and Closing Date. The closing of the Sale Transaction (the "Closing")
shall be held at such place as Lessor shall determine on the earlier of (i) January 31, 2007, or (ii)
an earlier date as mutually agreed upon by Lessor and Lessee (the "Closing Date").
2.5 Representations and Warranties of Lessee. Lessee hereby makes the following
representations and warranties to Lessor, each of which shall survive the Closing:
(a) Neither the execution and delivery of this Agreement nor compliance with
the terms and conditions of this Agreement by Lessee will breach or conflict with any agreement
or instrument to which Lessee is a party or by which it is bound, or constitutes a default
thereunder, and the execution and delivery of this Agreement will not be in violation of or
conflict with any of the terms of any law or regulation, order, judgment or decree applicable to
Lessee, or to which Lessee is bound.
(b) There is no action, suit or proceeding pending, or the knowledge of
Lessee, threatened against Lessee with respect to his ability to enter into this Agreement or
complete the transactions contemplated hereby in any court or before any federal, state, county
or municipal department, bureau, commission, board or agency or other governmental
instrumentality.
(c) During the Term of this Agreement, Lessee will not store, treat, or
otherwise dispose of any hazardous substance in a manner inconsistent with all governmental
rules and regulations pertaining thereto.
2.6 Condition of Premises. Lessee acknowledges and understands that
Lessor is not making any warranty, express or implied, with respect to the quality, condition or
fitness for a particular purpose of any of the Premises including, without limitation, equipment
and fixtures, and Lessee accepts all of the Premises "AS IS" AND "WITH ALL FAULTS" IN
THE CONDITION NOW EXISTING AND, EXCEPT AS OTHERWISE EXPRESSLY SET
FORTH IN THIS AGREEMENT, LESSOR EXPRESSLY DISCLAIMS TO LESSEE AND TO
ALL THIRD PARTIES ANY AND ALL WARRANTIES CONCERNING THE CONDITION
OF THE PREMISES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION
ANY IMPLIED OR EXPRESS WARRANTY OF QUALITY, CONDITION OR
MERCHANTIBILITY, AND ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR
A PARTICULAR PURPOSE.
2.7 Release and Indemnity.
(a) Lessee's Acknowledgement. It is the intent of the parties hereto, and
Lessee so acknowledges, that from and after the execution of this Agreement, Lessor shall bear
no liability of any kind whatsoever arising form or associated in any way with the Premises.
(b) Release and Indemnity, Lessee agrees to indemnify, defend, save
and hold harmless Lessor and Lessors' partners, employees, agents, heirs, successors and assigns
(the "Indemnitees") from and against any and all claims, demands, causes of action, losses,
damages, liabilities, costs and expenses (including reasonable attorneys' fees and expenses, court
costs and costs of appeals) asserted against or incurred by the Indemnities by reason of or arising
out of a breach of any of the representations and warranties or any covenant contained herein.
Lessee, for itself, its successors and assigns, hereby releases and forever
discharges the Indemnitees from, and hereby covenants and agrees to relieve, exonerate,
indemnify, defend, protect and save the Indemnitees harmless from and against, any and all
claims, losses, liabilities, demands, causes of action, suits, judgments, orders, damages, penalties,
obligations, costs of every kind and nature, whatsoever, including without limitation reasonable
attorneys' fees and expenses (collectively the "Claims"), which Lessee may have against the
Indemnitees arising from or associated in any way with the Premises, whether or not such Claims
arose or accrued before the date of this Agreement or hereafter, and regardless of whether such
Claims are caused solely or in part by the negligence or misconduct of the Indemnitees,
including without limitation, Claims arising out of or in connection with (i) loss of life, bodily
injury, personal injury or damages to persons, (ii) damages to or loss of'personal property or real
property, (iii) any violation of any statute, law, ordinance, code, rule or regulation of any
governmental entity, (iv) any contamination or adverse effects on the environment, (v) other
casualty or harm to air, ground water or other natural resources of the property or of off-site
property, and (vi) any costs of investigation, clean-up, preventative, restorative or mitigating
measure with respect to the Premises. This release and indemnity shall survive the termination
of this Agreement and delivery of the deed and any other instrument associated with the
conveyance of the Premises to Lessee indefinitely.
2.8 Taxes. Lessor and Lessee shall each pay one-half (%2) of any and all realty
transfer taxes due any local or state governmental entity.
2.9 Default of Lessee. If, on the Closing Date, Lessee shall fail to perform its
obligations hereunder in accordance with the terms of this Agreement, Lessor may either (i)
terminate this Agreement, whereupon the Lessor shall retain all Rent, additional rent and
deposits paid by Lessee under this Agreement and Lessee shall immediately vacate the Premises,
or (ii) bring suit against Lessee for specific performance of its obligations under this Agreement.
In addition, Lessor shall be entitled to pursue all other remedies available at law or equity for any
damages, costs and expenses which Lessor may have sustained by reason of Lessee's default.
ARTICLE 3: MISCELLANEOUS
3.1 Notices. All notices, requests and other communications under this
Agreement shall be in writing and shall be sent by registered or certified mail, return receipt
requested, postage prepaid, as follows:
Ifto Lessor: Jennifer Delaye
JDK Catering, Inc.
2213 Old Gettysburg Road
Camp Hill, PA 17011
If to Lessee: Safet Klovo
149 Faith Circle
Carlisle, PA 17013
or to such other address or party of which Lessor or Lessee shall have given notice as herein
provided. All such notices, requests or other communications shall be deemed to have been
sufficiently given for all purposes hereof on the date of proper mailing thereof.
3.2 Entire Agreement and Amendment. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter hereof, and supersedes
all prior and contemporaneous agreements and understandings, inducements or conditions,
express or implied, oral or written, including, without limitation, the non-binding Proposal to
Lease dated January 28, 2004 and signed by the parties hereto. In entering into this Agreement,
no party is relying on any representation, warranty, inducement or other statement made by or on
behalf of any other party except as contained herein. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with any of the terms
hereof. This Agreement may be amended only by a written agreement signed by all parties
hereto.
3.3 Waivers. Neither the failure nor any delay on the part of either party to exercise
any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege, nor shall any
waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a
waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver
shall be effective unless it is in writing and is signed by the party asserted to have granted such
waiver.
3.4 Time Periods. Any time periods provided herein which shall end on a Saturday,
Sunday or legal holiday shall extend to 5:00 p.m. of the next full business day.
3.5 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original as against any party whose signature appears
thereon, and all of which shall together constitute one and the same instrument. If executed in
multiple counterparts, this Agreement shall become binding when two or more counterparts
hereto, individually or taken together, bear the signatures of all of the parties reflected hereon as
the signatories.
3.6 Severability. The provisions of this Agreement are independent of and separable
from each other, and no provision shall be affected or rendered invalid or unenforceable by
virtue of the fact that any other provision may be invalid or unenforceable in whole or in part for
any reason.
3.7 Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania.
3.8 Time of the Essence. Time is of the essence in regard to the performance of the
duties and obligations of the parties to this Agreement.
3.9 Assignment. This Agreement shall be binding upon the respective heirs,
executors, administrators, successor and assigns of the parties hereto, it being expressly
understood, however, that the Lessee shall not assign or transfer this Agreement without the prior
written consent of the Lessor.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
10
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
ALL THAT CERTAIN piece or tract of land situate in Lower Allen Township,
County of Cumberland and State of Pennsylvania, bounded and described pursuant to a sub-
division plan prepared by Ernest J. Walker, professional Engineer, dated October 10, 1973,
amended March 1, 1974 and duly approved by the Planning Commission and Board of
Commissioners of Lower Allen Township, as follows:
BEGINNING at a point on the Western Side of Carlisle Road (L.R. 21022), said
point being North 41 degrees 22 minutes West 113.33 feet from line of land of Reading Railroad,
and being at the center line of a proposed 35 feet wide right-of-way; thence by the center line of
said proposed 35 feet fight-of-way, by land being retained by the Grantors, South 50 degrees 43
minutes 56 seconds West 257.27 feet to a point; thence continuing by land being retained by the
Grantors, North 40 degrees 24 minutes 56 seconds West 81.51 feet to a point on line of land now
or formerly of Raymond Baer; thence by said land now or formerly of Raymond Baer and land
being retained by the Grantors; presently leased to Amoco Oil Company, North 49 degrees 35
minutes 30 seconds East 255.78 to a point on the Western side of Carlisle Road aforesaid; thence
along the Western side of Carlisle Road, South 41 degrees 22 minutes East 86.64 feet to the
Place of BEGINNING.
CONTAINING 21,548 square feet, more or less.
11
EXHIBIT B
Small under fridge
Upright freezer
Oven
Grill
2 side station tables
Large side station table
Coke locker
Fryer
Double door auto sham
Shelves x 3
Ice machine
Sink - 2 bay
Mop sink
2 green shelves
-Car hop trays
Yellow baskets
Microwave
Hood
12
AGREEIYIENT FOR}TLE{`(` Ft1F?,9AA P?fr,IA'L REAL ESTATE A?S-C
nmmwmEdnd Wwd(w.w neiavcadisq,a mmbv oPW pwylvmuAwiaMnof RB0.TORa (PAR).
SELLER'S 6ItSIlYES§'BET,ATIONSHIP WITH P' ' CENSED BROKER
r._BROKER(Cbmpmy) PHONE .,
ADDRESS FAX: --l BROKER IS THE AGENT FOR SELLER. Designated Agent(s) for Seller, if applicable: _
OR
Broker is NOT the Agent for Seller and is Wan; ? AGERF FORRIIYER, ? TRANSACTION LICENSEE
'r[H BRQKER?(CMUW4Y)' ? r , - ? r N: tnx .ir' PHOA`S'%= °
ADDRESS 6 : - .. =a• FAR _
'BROS.BR LS THE AGENT FOR BDYER DesrgrmtedAgant(e)for Bayer daPPEnble: *? _
l.c ?: w OR ,. , -
'Bruk'tr k NOT toe A'gn for Buyer and B Wan. ? AGENT FOR SELLER ? SUBAGENT FOR SELLER ? TRANSACTION LICENSEE
of
r ,We{s sly 1e Ijesigmted Agents for,BUyr: and-Sages. Bthe same Lipman Is desigoe(ed{ur SeOeraod BUyes; the LieenaFeiss Dusl Agent
n 1.,I$ ?QQPPeementf do't` ,eSC; W between t
z SELLER(S)
'
•
c rb.... ,ralhsl-Seller
," and a
5 .
BUYER
(S) v
g
67 d?
Tf
) ll ii dl ? L .u ...:F wcgf
T Y1TT.r , ..
I'! L` -PROPERTY. Seger hereby agrees to setl and cuov_ey tole?liu hereby ' o me - e
3 ALL THAT CERTAIN lot or piece of ground w)tb butlamgs and bapro matNts thereon missed, if any, kvown as s
71
tz
-inane 12
13;• " : . Comm siwealth of Pennsylvania, Yip Code y 143,rm,. t- 13
to IdentiBeation'(e.g., The ID g; Parcel k; Lot, Block; Deed Book, Page, Regarding Date) w+d_'> z 1e
15 ¢- .-t .v 15
v 3 '`TEEMS (10-07} ,. , --,T-? . It??rL?'GS?'`1}y?NS 1?3,9,ay? c, •
?
1 P 'YA)Pueetiue Price
-?' "? ' - ^??L ey Dotlars n
1 8
. w h i r h s v f 0 be paid to $rLv by Buyer u follows:
- is
,
19 (1) Cash or check u s timing 12ds Agmemenv
as (2) Cash or check within _days of the execution of dos Agreement: S "yeti zp
!1.!V 3R ei1 (d)g ,_.. ... .., ... ,:. $,:,. ,., .., _ 21
22
23:Y _ ; (5);1Cash, cashier's or cardfied check m rime of settlemme - .. Se:. fl
zi
x- N [ :z TOTAL' $-+., .?
25 (8) Deposits paid on account of purchase price in be held by Brokse for Selle, unless athirwrse staled Bete 25
26 26
t _ 27 (C) Seller's written approval on or befoes1 3
' 27
!r 20 (D) S.Wera at to be on :i>
• , ); .1 [ ...' I , or before if Beyer and S:Bet agree. 26
so (? _ Conveyan¢ Gam Seler will be by fee simple deed of vpema) warmnry unless arherrvise stated here: 2n
in - (F Payment of waste, toes will be divided equally between Buyer and Seller unless: odmrwiae stated bore. 31 II
32 32
sa
(4).. At time.of settlement, the following will be adjusted pro-ram on a daily basis betwem Buyer and SeOm, reimbursing where Applicable: 1
33
9 rues (w Notices and Information Regarding Tar Proration); rents; interest an mortgage assumptions; wadomitdum faro bratty, worse U
as settler sewer fees, if any; together with any other Geoable municipal service. The charges are in be pro-rated for the period(s) covered: H
as ScUm will pay up in and including the dote oforderciam: Buyer will pay fdi all deyvRolloviing settlement, unless orherwis: soled here:
ai rs
Aar
..
(H)' Buyer %W reimburse Seller for the actual cans of any remaining beaun8 coaling or other fuels stored on the property al hie lhae of
hB
)9 ...
ienlen)enq unless otherwise shed here: I •.. 9a 1
r6 0, FA'TURFS & PERSONAL PROPERTY (1-00)
?j r, (A)_BI,CLUDEIJ in Jos sale end puscheae Pcea are all eassung Rears petmaoeady ua"in the ftopertyfree ofbens, mclndiae Plumbing;
tt
az HVAC equipment; lighting fixtures (including chandeliers a e-- t o 1Q1 .. w
unless oth
'"?rlvs) md
w
;rer
uwtmemry
reaSS
wise sturdbelow
as .
,
,
,
n
,
_
A
Alan inUuded: ti ...B44 ,n e.A
r aP
as
e tlvS E.ln ?j -r
Id
C le
as .
B) LEASED items:
? I
u
n (C) EXCLUDED Estates and items: TT'r, '.'...__ ?TTrw+ 7-?
` 47
a r.rG-rwl *u? Srr.z- Fmr^ SGV t
>)t'al C rn C> tvs? L,1j a8
11 S. SPECIAL CLAUSES: wtoC(v \1;z '-M- °wT-
a8
56 (A) The following are pan of this Agreement if checked:
58
51 ? ? 51
52 ? ? 52
0 (B) SPECIAL PROVISIONS OF ANY):
u I
U - 4, 1
55 5
56
5]
57
56 56
55 B uyer Initials: A/S-C Page I of 5 Seller Initiek: 59
Pon" ALTOIvana ra Association a _ ---.. CDPYR)f:nTPENN5YL8lN1A ASSOCIATION OTAFALTOR5a 301
® RE
w. uoY rwrrvar/w.w+,u InA1
fia 6. POSSESSION (5-01) g9
at tA) Possession is to be delivered by deed, keys md: 61
62 1. Physical possession to vacant property free of debris, with an soocmres broom dean; at day and time of settlement UNLESS cuter- 6,
63 wise stated hem: . ANILOR m
64 2. Assignment of exisnng lease(s),concha, with any security deposits and interest, at tune of seulameaq if Property is leased at the axe- 6n,
65 auction of this Agreement or unless otherwise speed here: 65
m 86
6r Buyer will acknowledge existing lease(s) by initialing said lease(s) at time of signing this Agreement if Property is )eased 62
N (B) S.D. will not mmn into any now leases, Wed. "tension of existing leases, if any, m additional Imes fm the Property without writ- 6n,
69 Ian consent of the Buyer. 69
l6 7. DATES/TBIIE IS OF TIIE ESSENCE (5-01) Is
TI (A) The said time for settlement =dell otvdnar and times referred to for the pafarmmc s of my of the obligations of this Agreement ate 21
n hereby agreed to be of to creation: of this AgtmmaL tic
33 (B) For the purposes of this Agreement number of days will be counted from the dam of execution, by excluding the day this Agreement n
is was executed and including ton last day of the time period. 24
N (C) The date of settlement is nee ex tended by my ode Provision of this Agreement and my only be attended by Wallace agreement other parties. 75
26 & FINANCING CONTINGENCY (5-01) 75
V ? WAIVED. This side is NOT rootingem an fiomeing, n
75 ? FIX= 7%
79 (A) Tbi¢ ask is contingent upon Buvernl mining Samsung m follows. t9
m L Acmes ofloanS m
91 2. MLmmum Term - years
--- V
az 3. Typo of loan R
W 4. Buyaragrees be aceept the interest rata as may be committed by the leader, esmecmei amaximum inmmstnne of %. n
w (8) Within 10 days of the execution of this Agreement Buyer will maim a wmplesed, written application to a responsible lender exceeding in as
m the terms shove. The Broker for Buyer, gravy, otherwise the Bsadmr for Seller, h authorized mrommutiam with the leader for the m
36 purposes of assL9tlng in the loan proem. as
n (C) L. Upon receipt of a financing anaIDment Buyer will promptly deliver a copy of to ca®immt to Seger. er
p 2. Flnaadag corwo mmut data . Unless a9
N osheswise agreed m in writing by Buyer ad Seller, if a written .mmirnmt is not received by Seller by she above done, ? deposit a9
m monies paid on secomt of purchase prim will be returned promptly to Buyer and this Agreement will be VOID. Buyer will be rmpon- m
V sible fa any prmmms for mechatdm Ben insurmce mWor title ammb, or fee for can clusuk n of same, if any: AND/OR my priced- m
9 uses for flood insmmas andfor fee buutm. wish extended coverage, insurance billet charges as canenBetioe fee if mry; ANMR V
0 my apprimmi fees and charges paid in advance m leodv. 9,
9s 9. ZONING CLASSIFICATION (5.01) 9
as Failure of Ibis Agrvmmt to contain the inning dassificetion (except in cones where the property (and each patent thereof. if mbdividable) n
x is reed solely or primarily m pemrit single-family dwellings) will render this Agreement voidable m the option of she Buym and, if voided, %
97 my dep ssm slndered by the Buyer will be mounted m the Buyer without my requirement for court action, 97
9s Zoning Clauifiation: see
as 10. ZONING CONTINGENCY (5-01) %
in ? WAIVED
IN
1m ? ELECTED. Within _ days of the exxvtion of his Agreement by all parties, Buyv will verify tlm the proposed me of the Property IV
ton as is permitted, to the event,the proposed uu is cad permitted. Buyer will, w11Ma the time IV
to given for verification, notify Seller in writing tut the proposed use of the Property is not permitted and Buyer will (cAvJr only me): to
1st ? Option 1. Within the time for verifying the amdng classification, notify Seiler, in writing of Buyv'3 dxisson of pcoxed with the lees
10e putd cruse of she Property or mnrdmme to Agreement Should Buyer edit m mundane to Agreement all deposit monies paid on tag
in uccomt of purchase prix will be mmmW pmmpdy m Buyer and this Agreement will be VOID. Failure of BUM to pnAde e.1, 1%
IV tm notice of Buyer's ded en, will cmastimse a WAIVER of this coatlogmey and Buyer attepls to Property and agrers m the tat
lot RELEASE ant fart In paragraph 25 of this Agreement. IN
in ? Option 2. Male appnation for approval for variancal =,aonfmmdng uscl ra didooil use/spon al exception) from _ as
n9 (municipality) to use the Property as nee
tit (proposed case), cat
112 (A) Such application will be made on on befom 112
113 (B) Buyerwill pay fm appiiadoos, legal fees engineaiag and any other aat associated with obtaining approval. 313
114 (C) Bthe municipality require the application m be signed by the cart mss owner, Seller ngrres to do so, ns
115 (D) If. Intel, mappealabk approval i5 net obtained by All deposit 1t6
nee monies paid on encaustic of purchase price will be rearmed promptly to Buyer and this Agreement will be VOID. 116
to 11. STATUS OF WATER (5-01)
cat
lit Sallee mpreunm that Property is served by: 119
119 ? public water 119
In ? Ous-c ion water in
1x1 Q Community Water 1V
T
in ? None
in
in ? 1P
IN Seller further wmsans that to Vaea (s) farms, fully paid for as of to execution dam of this Agreement 12s
its 12. STATUS OF SEWER (5-01) 125
126 Seller represents that Property is served by. in
171 ? Public Sewer R
128 ? Community Sewage Disposal System 122
in ? Of-Property Sewage Disposed System in
in ? LWividual On-Lor Sewage Disposal System (See Sewage Not. 1) IN
ut ? Individual On-Lot Sewage Disposal System in Proximity to Well (See Sewage Notice 1: see Sewage Not. 4, if applicable) 131
132 ? Ten-ante Permit Exemption (Sec Sewage Notice 2) 132
in ? Holding Tank (See Sewage Notice 3) In
134 ? None (Sac Sewage Notice I) 139
135 Q None Available (See Sewage Notier 3 or Sewage Notice 6, as applicable) 135
IN ?
36
13' Seller former w;urunts that the system(s) islare folly paitl for as of to executor date of this Agmemmt. 132
13a
IN
139
in (
-l -:.-
Buyer Initials: AIS-C Page 2 of S Seller Initials: ?) 139
10
Tat 13, PROPERTY DEFECTS DISCLOSURE (10-01) 141
IQ - (A) Seller represents and warrants that Seller has no knowledge except as noted is this Agreement that, (1) The premises have been can. A42
TV Turnaround by any ndmtace in any mama which requites remediation; (2) The Property contains wetlands, flood plains, or my other 143
to environmentally s, nsirisx =as, development of which is limited or precluded by law; (3) The Property contains asbestos, polydilod- iM
14 noted biphenyls, lead-based point or any other substance, the removal or disposal of which is subject to any low a, regulation; and 1t.
146 (4) Any law has been violated in the handling or disposing of any material or waste or the discharge of any material into the soil, air, 146
141 surface water, or grand water. 14T
IN (B) Sella and Bova acknowledge Vial any Broker identified in this Agreement. (1) Is a licensed real estate broker; (2) Is not an =pert in 14a
149 construction, aginuming, menvimnmental matters; and (3) Hasnotmadeand will Unimak. any represenmtions orwaaasti=aorta.- tan
to duct investigations of the environmemal condition or suitability of the Property many adjacent property, including but net limited m to
151 those conditions Bated in paragraph 13(A). 151
162 C) Seller agree, to indemnify and to bold Broker bamless heart and against all claims, demands, m liabilities, itmuding marm.ys fees and 152
IN man casts, which mine from or are related m the environmental condition or suitability of the Property prior to, during, or after Seller's in
154 occupation of the Property including without limitation any condifion listed in paragraph 13(A). TV
in (D) The provisions of this Section will survive the performance of this Agreement, 156
156 14. NOTICES AND ASSESSMENTS (5-111) IN
IV (A) ScHerreprr:sents as of Seller's execution of This Agreement. thorn public improvement, condominium or owner association anasments 161
In have been made against the Property which remain unpaid and that no notice by any paramount or public authority has hem served in
in upon Sella or anyone on Seller's behalf, including notices relating to violations of mrdng, housing, building, safety or fire ordinances 159
166 which remain uncorrected, and thin Sella Wows of no condition it., would nouslituw violation of any such ordinances which remain. 166
in uncorrected. unless otherwise specified hem: iT
In 162
in (B) Sella knows of no other potential Ounces (including violations) and ass=smmu except on fobowle In
161 I"
in (CJ Any notice of ImpmVammRs or intentional received an or before the data of Sella 's aucepmn0.' of this Agreement, Unless improve- in
166 men¢ consist of server m water lines not in use, shall be the responsibility of the Seller: any amiea received thermftar mall be the 166
to responsibility of the Buyer. - 19
iba (D) If required by law, Seller wig deliver to Buyer, an or before sedemmc a unification from The appropriate municipal department or 19
in departrnmu disclosing notice of any uncorrected violation of mining, building, safety, or fire ordinances. in
IN (E) Buyer is advised nor access n a public mad may require iammes of a highway occupancy permit form the Department ofTnmportafon. 170
In 15. TITLE AND COSTS (1-00) 171
in (A) The Property is m be conveyed fore and clear of ill liens, m mbmeces, and casaamts, EXCEPTING. HOWEVER We following: 172
173 existing deed restrictions, historic preservation restrictions or anomalies, building restrictions, ordinances. antenems of roads, ensanmm In
174 visible upon the ground, easements of record, privileges or rights of public service companies, land use restrictions paramount to property 174
to emollmest it a pmfCmtial mx pmgum if my, otherwise Ow title To the above described real stew will I. good and marketable and such in
175 as wig be insured by a reputable Tide Insurance Company a the regulso rata. in
in (B) rn the event Seger is unable to give a good and marketable tide and such as will be insured by a reputable Title Insurance Company at 17
in the ropier mres. N specified in paragraph 15(A), Buyer will have the option of. (I) Taking such title as Sella can give, with no change 178
in m the selling price; or (2) Being repaid all monies paid by Buyer to Sella an account of purchatt price and being reimbursed by Sella 176
in for any coos incurred by Buya for those have specified in paragraph IS(C) and ID paacemph 15(D) items (1), (2), (3), in which case in
to That will be no forth, liability or obligation on either of the parties hereto and this Agreement will became VOID. Tot
IV (C) Any survey or surveys which may be acquired by dre Tide- Innocenti Company a the absucoming moray, for the preparation of an IN
in adequate legal description of the Pmperty (m she correction thereof). will be Secured and paid for by Selig. However, any survey err in
in surveys deduced by Buyer or required by the nromgage leader will be secured and paid fm by Buyer. 114
IN (D) BuyawillfayfmthefmBoveing: {1)T.Oes=ich, tide in,urancc mdfor mechasn Gm insurenm or fee for rantre((anon of smae.V any; tali
to (2) Flood insurance, fire assurance with lumnded coverage, mine subsidence imumnce, and cancWants fees, if any, (3)Appmhal fees IN
151 and charges paid in advance to mortgage lender, if my: (4) Buyer i customary aatlenals cams Rod goals. Tel
IN 16. COAL NOTICE in
186 ? NOTAPPLICABLE in
in ? APPLICABLE TIES DOCI)ME,Ir M vscrrme cxstvEY, nounim. w Tnya ORm E7,@ miNEro &;o riots OF,wecxrulmm- in
to NP.1tm 116 SURFACE 1AAD nbgCalam oat 213ER01) m 16RE041 AND T1¢ OWNER M OWNFRS OF ,ttmt COAL MAY HAVE nest COMPLETE (FOAL TV
To Am"'T' 70 RFMDVli LL a1CH COAL AND m Most CONNE(nabl. DAMAGE MAY REAM m THE SHRFACa olF IIR hull) ANY HODS., BUXOM OR In
IN Conan sraucnnee DN OR N Wd IAND. (Ibis notice is sat forth in it* manta provided in Sermon 1 of The AV of July 17, 1957, P.L 984.) iss
in "Buyer ackaowtedges that he may not be mbtairdsg the right of protection against subsidence resNting ban coal running opaacons, and im
Ia that the pmpeny described berein may be protected Gam damage due to mum subsideMe by a private Contract with the owners of the aoa I%
in pots. interests in the coal. This acknowledgement is made fm the purpose ofeomplymorWith the provisions of Section 14ofthe l3imadUns in
IV hBne Subide..m deLard CaruervaimAct ofApi)27,1966." Buyer agree to sign the deed from Sella which deed will contain the Ta
in National province. to
In 17. TAX DEFERRED EXCHANGE(1T1-01) in
2w ? NOT APPLICABLE no
no ? APPLICABLE In the event Seller wishes to rater into a tax deferred exchange fm the Property pas t in Section 1031 of the eternal ant
ma Revenue Code. Buyer agates m cooperate with Sella in cultivation with such =change, including Ore ammtion of surly documents as may an
am be rensonubly necessary to conduct the =change, prevhded that that shat be am delay in the agtead-to settlement data and that my addi- IN
us clonal mew assacimed with the =flange ere paid solely by Seller. Buyer is aware that Sella anticipator assigning its intention in this 204
an Agreement m a dial party Ruda an Excbmge Agreaomt ad does hereby consent to such msipn UL Boyer stall not be required to =e- orb
No caw any note, contract, deed or other documet providing my liability which waked survive the =change, nor shag Buya be obligated m 206
an Take Tide to my property other than the Property described in this Agreement Seller shall indemnify and hold harmless Buyer ' against any 297
as liability which ans. or is claimed to have arisen from my aspect of the exchange Orsini me
7m 18. COMMERCIAL CONDOMINIUM (10-01) mR
no ? NOTAPP11CABLE rat
MI ?. APPLICABLE. Buyer acknowledges that the condoninium unit to be Unaudited by the tenns of this Agreement is intended for Emmet- an
212 donna assn, and That Buyer may agree as modify or waive the applicability of remain provisions of the Uniform CoMOodnium Act of 21.
ME pmnsylvanis (68 P. C.S. 43101 at. seq.). 213
214 19. RECORDING (5-01) this Agreement will not be mcaded in the Office of the Retarder of Deeds or in my otha afftce or place of public na
n5 record. If Buyer causes or permits this Agreement to be recorded, ScUa may elm( To Treat such act as a breach of This Agreement. n5
216 20. ASSIGNMENT (3-BS) This Agreement will be binding upon the parties, their respective heirs, personal repraenutives, guardians Rod suc- no
217 cessors, and, to the extent assarnble, on the assigns of the parties have, It is expressly understood, however, that the Buyer will rot transfer or 217
214 en d13 Agreement wdthon( she written mn,ea, of the Selle, no
214 219
no
'i ago
zn Buyer Initials: s P A/S-C Page 3 or 5 -Seller Initials:/-' ' 221
2a' 21.
x23 -
Y(d
225
226
nT
228
no
as
at
292
act
2H
235
Us 22.
7n
tai
as
tae
241
242
2a3
is
sea
246
at
20
Z41
Zen
251
n2
23.
24.
262
259
as 2s
M7
all
no
266
at
ae2 Zi
M
264
tb8
as
267
20
269
276
m
M
n2
274
276
no 27.
In
no
276
all
rot
282
as
2114
265
265
26I
as
288 23.
2%
gal
OR
w
V
DEPOSIT AND RECOVERY FUND(1-OO) - 2zx
(A) Deposits paid by Buyer within 30 days of addement will be by cash, cashier's or adified check. Deposits, regardless of the romi of as
payment and the person desigmard as payee. will be paid in U.S. Dallas to Broker or party identified in paragraph 3(B), who will retain U4
:hem in m escrow eccmmt until consonunation or termination of this Agreement in cunfomdty with all applicable laws and regulations. 225
Any uncmhed check tendered as deposit may be held pending the acceptance of this offer. M
(B) In the event of it dispute over entitlement in deposit monies, a broker holding the deposit is required by the Rules and Regulations of the 2n
State Real Estate Commission 149 P. Code §35327) in retain the monies in escrow until the dispute is resotved. In the event of li'dga- 228
doe, for the victim of deposit monies, a broker will distribute the statues as directed by a final order of court or the written agreement of 2z9
the parties. Buyer and Seller agree drat, in the event any broker or UP Wed licensee is joined in litigation for the return of deposit 236
monies, the attorneys fees and costa of the broker(s) and licensee(s) will be paid by the perry joining deem. 231
(C) A Red Estate Recovery Fired exists to reimburse soy persons who have obtained a fins)dvi)judgment against a Pennsylvania read oumte zsx
becam , owing to fraud. misrepresentation, or deceit in a real estate =notion and who has been unable to collet the judgment after M
exhausting all legal and equitable rowdies. For complete demils about the Fund, gall (717) 783-3658, a (800) 8211-2113 (widne n4
Pennsylvania) ad (717) 7934854 (outside Pennsylvamia). M
MAINTENANCE AND RISE OF LASS (S-M) us
(A) Seger will maintain the Property, and any personal property specified herein, in its present condition, oormd went and em exalted. 231
B) Seller will promptly notify the Buyer if, at my time prim m the time of scalemenr, all or any portion of Ne Property is destroyed, or for
damaged u a result of any cone whatsoever. no
(C) Seiler will bear risk of loss from fire or other causes anal time of set0ement. 1. the event Ihht damage in my property included in this 20
sale is not repaired or replaced prior to sedemenC Buyer will have the option of reminding this Agreement and receiving All monies 231
paid on account or of accepting the Property in its then emaditiontogedmr with the proceeds of my insurance, recovery obtained by Seiler. 2411
notified that hrlshe may imure, higher equitable interest in this Property as of the time this Agreement is accepted.
Bu
er is hereb 24
y
y
COMMWNA77ON (5-01) 2"
Sella bas no knowledge of my intent or pending condemnation of eminern domain proceedings that would affect the Property. If say par- 245
don of The Property should be subject m condemnation or eminent domain proceedings after the signing of this Agreement. Seller shall motif as
direly advise Buyer, it writing, of such proceedings. Buyer sba0 have the option to terminate this Agreement by providing writhes notice to Mi,
Seller within fifteen (15) days after Buyer learns of the filing of such proceedings, in which came Seiler shall remm in Buyer all money *it Sea
on mmunt of the purchase Price by Buyer. Buyer's failure to provide notice of termination within the time stated will martbus, a 242
WAIVER of this mnfingmcy and all other terms of this Agreement remain in Ott force and affect. no
WAIVER OF CONTINGENCIES (1-00) 251
In the event this Agreement is cantingent on Buyer's right m fit%= arsVer repair the Property. Bayer's failure to exercise any of Buyer's M
options specified in the contingency prods anis) wilh)n the time limits will cotntha to a WAIVER of that contingency and Buyer accepts as
the Property rend agrees to the RELEASE and forth in paragraph 25 of this Agreement 264
quit rdaims and tomerdischargrs SELLER, ALL BROKERS, dadr ICENSEES, EMPLOY-
RELEASE(I-W) Buyer hereby releases as
,
OFFICER or PARTNER of way one of them and any other PERSON, FIRM, m CORPORATION who may be liable by
FES
and m a57
y
,
from my and all dafine, lases or demands, including, but not Handled to, personal injuries and Property damage and
or through them 255
,
all of the mmoqumses their f, whether now known or not, which may arise firm the femence of tmdtts or other woedboriag toseem, an
redo, lead-based Pahm hraarvh, emironmmtd hazards, my defects he the individual code[ sewage disposal system or defidendes in ter
the on-site water Service system, or any detects m conditions on the Property. This release will survive aettlemmt at
REPRESENTATIONS (5-01) 262
(A) Buyer mhdersmnds that any nepresenletims, claims, advertising, promotional activities, brochures or plans of my kind made by Seller, 2s
Brokers, their liceemes, em dayecs, officers, or pamem are am a pat of ids Agreement uribm expressly incorporated instated in this 2u
Agmment It is further understood OW Ibis Agmemeft contains the whole agreement between Seller and Buyer and them are no other as
tenon, obligations, tnvmmm, represemmtions, satements or =tilde=, anal or otherwise of my kind whatsoever conceming this sale. M
Funhermme, this Agreement will not be altered, amended, changed m modified except in writing executed by the parries. 26r
(B) It Is anderatood that Buyer but impacted the Property before siguing this Agreement (Including Bemres and any personal Prop- as
forty, specifically scheduled herth), or bas waived she right to do so, and has agreed to purchase it in his present condition without M
otherwise stated In this Agreement Buyer mknowiedges that Brokers, their Bxsmsms, employees, officers, or partansa have not 2m
made an independent axamirmtion Of determination of the structural somdrres of the Property, the age our condition of the mm- 2n
pmertts, evMm=mtal conditions, the Permitted rues, or of conditions edsting In the locale when the Property is situated; nor m
hove they made a mechanical inspection of any of the systems contained therein. na
(c) Bmkerm may perform amrisd s m main noread aided Parries in complying with the terms or this Agreement 274
(D) The headings, captions, and lire numbers in ids Agreement are meant DN,v to make it easier in fend the paragraphs. ass
DEFAULT (1-W) 276
Should Buyer, zn
(A) Fail in make my additional payments as specified in paragraph 3; OR Z79
(B) Persian false or incomplete minuteness to Salk, Broker for Seiler, Broker for Buyer, or the landed, B my, concerning the Buyers legal no
or financial am=. or fail m temperate in the processing of the lam application, which mss would revolt in the film: in obtain the an
approval of a loan commismmk OR M
(C) Vickie m fail to fulfill and performs my other tarred or conditions of this Agreement: sex
then in such case, Seller her the option of remising all sums paid by Buyer, including the deposit monies, 1) on accoum of purchase as
price, m 2) as monies in be applied in Seller's damages, or 3) u liquidated damages for such breach, as Seller may elem. uuimss 2"
otherwise checked below, 25
? Seller is handed to retiring soma paid by Buyer, including deposit monies, as liquidated damages, too
If Se11crel2n to retain all sums, paid by Buyer, including deposit moment, aS liquidated dategem, Buyer and SCBa will it released from 37
former liability or obligation and thirAgraement will be VOID. 290
CERTIF[CATION OF NON-FOREIGN INTEREST (18-01) no
? Seller IS a foreign person, foreign imporadon, foreign Partnership. funded trust, or foreign arm mbjem to Section 1445 of the Internal M
Reveme Code, which provides that a navsfeace (Royer) of a U.S. real property interest must withhold one if the wnsfemr (Seller) is a 2m
foreign peasm. M
X Seller is NOT a foreign person, foreign corpomrion, foreign pmnersbip, foreign Of m a foreign estate as definaf by the Internal 299
Revenue Code, at is otherwise not subject re the tax withholding requirements of Section 1445 of the Internal Revenue Code. To inform as
Buyer that the withholding of tax is not requited upon Elie saloVisposition of the Property by Seiler. Seller hereby agrees to fantish zse
Buy., at or before closing, with the fallowing; 296
? An affidavit arming under penally of perjury, the Seller's U.S. taxpayer identification number and that the Seller is not a foreign no
person. use
? A "qualifying smtemem;" as defined by statute, that tax withholding is nor regvucd by Buver, 299
? Other: Boa
Seller understands that any documentation provided under this provision may be disclosed 1. the internal Revenue Service by Buyer, and Nat Sat
any false statements contained therein could result in punishment by fine, imprisonment, or both, jt? eat
s Initials: k?. AiS-C Page 4 of 5 Seller initials: a'•- C 3m
Sae 29. AlUIPTATIONOFDISPUTFSO-0al Buyerand S, ..,recto arbitratemydLputebetw=tbcmtliatmnotbewri6ablyrca After
so& - written demand forarbitestwo by eider Buyeror Seller, each party will select a competent and disinterested arbitrator. The two m selected will
306 select a third. If selection of the third arbitrator cannot be agreed upon within 30 days, either party may requert that selection be made by a
am judge of a roue of record in the county in which arbitration is pending. Each party will pay its chosen arbitrator, and bear equally expense: for
300 the third and all .,her expenses of arbitration. Arbitration will be conducted in accordance with the provisions of Pennsylvania Common Law
389 Arbitration 42 Pa. C.S.A.17341 at. seq. This agreement to arbitrate disputes arising from this Agreement will survive settlement.
310 30. BROKER INDEN04FICATION(10-01)
all Buyer and Seller mpresent that the only Brokers involved in this transaction am: -
a12
313 and that the ransacdon has not been brought about through the e8om of anyone other than said Brokers. It is agreed that Warty claims for
all brokerage conumaimss or fees arc eve made against Buyer or Seller in connection with this transaction, each parry shall pay its own legal
3t5 fees and cases in cwmardo. with such claims. ll is further agreed that Buyer and Seger agree to indemnify and hold harmless each other and
na the abovedis td Brokers from and against the non-perfomsmce of has Agreement by either patty, and from any claim of loss or claim for
317 brokerage mmmissium, including all legal fees and costs, that may be made by any person or entity. This paragraph shall survive settlement.
an, 31. GOVERNING LAW (10-01)
319 This Agreement shall he censored and interpreted in accordance with the laws of the Commonwealth of Pennsylvania
am 32. NOTICE BEFORE SIGNING ("I)
an Buyer and Seller acknowledge that Brokers have advised Wem to consult and tannin aspens c uteemiag the legal and tar effee s of this
W Agreement and the completion of the sale, as well as ft condition and/or legality of the property, including, but amt limited m, the profanity's
IS temann ecma equipment, soil, tenancies, tithe and environmental aspens. Rearm by facsimile ustrumissioa (FAX) of this Agreement, and
a'11 all addenda bearing the signatures of all parties, constisues acceptance of this Agreement.
35 33. NOTICE
an All notice requirements under the provisions of this Agreemrn[ er by application of ammmry or common law will be addressed to the eppro.
327 priam party, at the addresses listed below via any means of delivery as unusually agreed upon by the parties and stated here:
-
no
JEN - ---
M If Set=
830 a?.\3 Qt...p -
331 gPth a copy to: ?PNA k-1c` f 1-3 Ct\ -
332
333 If to BUM
331 --
ass With a ropy rot
316 --
sit ? Buyer has received the Consumer Notice as adopted by the State Real Estate Commission 0 49 Pa, Code §35336,
me ? Boyer bas received a statement of Buyer's estimated closing frosts before signing this Agreement.
an ? Buyer has received the Deposit Money Notice (for cooperative ales when Broker for Salter is holding deposft money) before
a4o signing this Agreement _.}
%1 Buyer acknowledges receiving a copy of this Agreement at the time of signing. ..f
an WITNESSIATTEST BUYER n V VI_ DATE /I - rD- •)3
Sae BUYER(S) NAME 519 T, G pVv s5/ff # / - 7? - A° Y6
36 Mailing Address /v :.,A1 t PO /',
30 Phone #a ? - -FAX* E-Mail
NT
sail WITNESS/ATTEST BUYER DATE`_
319 BUYER(S) NAME SSM
an Mailing Address
351 Phone #s FAX # F Mail
352
ass WITNESS/ATTEST BUYER DATE_
ass BUYER(S) NAME SSM #
ins Mailing Address ---
355 Phone #s FAX # E-Mail
353
'us O Seiler has received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code 135336.
852 ' ? Seger heat received a saement of Seller's eathmted elming costs before signing this Agreement.
xs
an VOLUNTARY TRANSFER OF CORPORATE ASSETS (if applicable): The undersigned acknowledges that Wain is autI
sae listed by the Board of D'irecmts to sign this Agreement on behalf of the Seiler corporation and that this sale does not constitute a
363 sale, lease, or exchange of all or substantially all the property and assets of the corporation, such g9 would require the authorization
lee or consent of the shareholders pursuant to 15 P.S. 11311.
an
388 SELLER'S ACCEPTAN •-'S& of Ii ieby accepts above contract this (date) \? \ ?('i•?
363 X f
ass W§TNESS/ATTEST SELLER r ' { DATE i\Ihl'y3
362 SELLER(S) NAME - S #
are Mailing Address
m Phone #s # E•Mail
3T % , i
an WfFNESS/A v SELLER I t i DATE ___t,?A"
374 SELLER(S) AME SSM #
375 Mailing Address
in Phone #3 FAX # E-Mail
331
332 ATMESS/ATTEST SELLER DATE._
379 SELLER(S) NAME SSM #
380 b4ailine Address
381 Phone #s FAX # E-Mail
382 A/S-C Page 5 of 5 l-
Us
an
366
307
308
380
318
311
312
313
314
Ta
316
317
31a
310
Sze
an
12
an
324
325
an
an
328
Pa
an
331
an
333
an
335
an
n?
3211
an
No
an
3t4
eat
314
343
J44
357
3411
Us
no
Sat
352
an
354
356
an
367
an
am
360
3ai
362
353
365
365
365
297
356
365
no
371
Pa
Pa
3rd
375
376
3P
na
37-
.80
381
362
BUYER'S COPY AT TIME OF SIGNING
SELI IS CLOSING COSTS F 405-2
ESTIMATED
Thjs 6nn,eeommenEed vM.pmo+etl fo,, Wi nun wined is use by, mem6en ave Pennsylvmie A+eonauon of aE MRS:
RE PROPERTY: `
SETTLEMENT DATE: SALE PRICE $ Zbe., CC2(`= -
Charges
' $ CKMC)
1. Agent
s Fee
f D
d
ti
P $ In (n
ee
on o
repara
2.
T
f
T
er
rans
ax
3.
4. Tax Adjustments (+/-)
(a) School S
(b) County $
(c) Municipality S
(d) $
$
(c)
5. Lienable Items (+/-) e.g. water, sewer, condo/associations
(a) $
b $
(
)
e Placement Fee
6
M
t $
or
gag
.
ort
d-Infestation Re
W
7 $
p
oo
.
ation
al C
tif
M
i
i
8 $
er
ic
un
c
p
.
ttl
t F
9
S $
emen
ee
.
e
Not
Fe
30 $
es
.
ary
11
Surve S
y
.
12 $
.
13 $
.
Estimated Casts $ ) ?DQ
Sale Price
Less Estimated Costs $ (y 1 CJ
Estimated Proceed: $ \ R 6, ?[ O O
The estimated proceeds do not take into account any mortgages, liens, assessments or other obligations which may be against
the property.
The above figures are approximated dosing costs and will be adjusted as of date of final settlement, if necessary.
7/We understand and have received a mpy of these estimated doing costs.
0
IV app wry
cs?- Nis mss
AGENT:
DATE: _
PaansyyALTOlRvania Association of
® R.E
o10S/?Q
a ?1 ldo
SELLER: e-(Seal)
SELLER: U -(seal)
COPY WGHT PE SYLYAMA ASSOCIATmN OF MWTCI S IM
COPIES: N'HRFSF2r.FA:Y ()W-AGIN
&B3
m
N_
K
W
Jennifer L. Delaye
2213 Gettysburg Road
Camp Hill, PA 17011
Sofet Klovo December 31, 2004
149 Faith Circle
Carlisle, PA 17013
Dear Sofet;
Your lease for 2025 Carlisle Road, Lower Allen Township requires liability insurance be
carried naming me as an additional insured. This insurance is a requirement of the lease
and not an option.
Please obtain the insurance as specified in section 1.10 of your lease (copy enclosed) and
provide me a certificate of insurance as soon as possible.
Thank you for your attention to this matter.
Sincerely,
Jennifer L. Delave
U
L
X
W
Jennifer L. Delaye
2213 Gettysburg Road
Camp Hill, PA 17011
February 18, 2005
Sofet Klovo
149 Faith Circle
Carlisle, PA 17013
Dear Sofet;
This is your second notice regarding liability insurance. As of today's date I still
have not received any information proving that you are currently insured under the state
of Pennsylvania, and per our lease agreement. Again this is not an option.
Please obtain the insurance as specified in section 1.10 of your lease agreement
and provide me a certificate of insurance by February 25, 2005 at 12:00 pm., listing me
as an additional insured.
If not received by this date I will start proceedings on this matter.
Sincerely,
Jennifer L. Delaye
m
?.
Q
v
V?
??
APR-12-05 TUE 01:51 PM FAX N0, P. 02/02
P.002/002
rn`°py+•?Alla. ••' .• ? - .r,•n„wr ?-??aT*nv..v.'-?. iei-r
n?ye
DFPNYR
' d BFIE IRiE
. F
°
°
z W
C
n
??r°'n: O
er
n
ma+
i?aY
?1T V
r
Rw
04111106
nY?I.:eMWdniav}F+v.MIA `?•u pWVlta'TA+A+W41Wle??Vto¢mJ .
nWm ,MWnM,znp ii0}Y b11VM1.6RLSR
WDUca THE CL"MCATCI5 ESUTD ASANATIEA CF WFOL TIN dJLYANO CaffRS
FrEO WEND,
y
H
W
ALL RISKS, L7D" TW
MM OORAUMTTMCOJ AME
F
AF B
2555 KINGSTON ROAD #250
COMPANIES AFFORDING COVERAGE
YORK PA 17402
?? A WESTERN HERITAGE INSURANCE CO.
cmvAW
B
NuEN
BARON SOCIAL CLUB
2025 CARLISLE RD. C
CAMP HILL PA 17011 D
COMPANY E
IEYER
CCNma"
TH515 TOCaMTHATTHE POUX-5 CFNWRAgM=M MIEN HAYC OMM MM TOM IEVJ W NIWED AWYC FORTHE PM= PM=
'
WRTI R{RECTTO WHIx17HP
NOEYATN5YAN0N6ANY RFD/RltPN{ 1HY. DR CONDInd6ANY CdRRit[;YtA OflEADOxA,BCI
WirATET1
,
i
BRIFYwTE WlYSEKW? CR AMY PERM THE MJSURVPCtAFFOPDEO 8.' 7Ti P41[E50657fE0 TfAEN l5et$EGTTOALLTNETE71Y6"
NGRUSImsAND Cg1pmom t} 91x1 pRll?l. WR! R1tXN1 WYI4NEBE@1 R®UCEL RYPMD x.AMS.
t TRtOFYNRUCS IOExY Ytet mpmam"
umomm" "No
0WIF IRALLIEVILOV a 2.000.0W
WWNERJ4LRBB LLRWBT CP05340W 04JOOJ06 04/Da/m "°L°'' aocNrs t 000oo0
A X
:t ..r.n..dw....Fw. 1,000,000
naamwoc ?myw ?p?R`Z•WFC 1000000
oNe??eF?nsner, 100 000
Naue.wFw ....?r 1 5000
NRY N7ICNF/LR( _?
l 6Cl'A?®e?F
mM?r.'Fmb .
S Fa
NYIWIN WI .
i
LLN.fmAU106 NWM v
?=.
`?
U$FN106 Strl?o? [µ?
y
/SRVVS??sartrtl
Itlm11A0S t111tR
qpi
F ?? r e? •-•••
a
n
MIF QNmttlloF SSNItlNW S?
i
DWAU
GC?LMNiNY pgj?i
NISIEIA ptS.l
OnFATNtNiWNARRFI S i
uogNEY WWFENINMN -•••ii+: r?:s?Fi ?-- ?i:?
_
AND RtCNAECOM
F
s taYAK rCtav
U511
SIN?cYiNe
uSmST
c
?-pcxaPtcna
On+tn
pSpCR?IpIOFOVFA?It]MFM1S?OCNUYF11C1i?ECW R41i
SO'S-
Ct3if HOID6T USTF9 AS ADDn1hWL*WVD
?"-?..- .. v??.:.. t.... .. .... '..'. ". •. u,l. V. ? .. :.? i-..? 1..?L ..nA,G n-,'rte ::V" r
- SICULD ANY tFTHEAROM OV5CP&FD POJ= GC QWM-IIDMFLR"C
JENNIFER DELANEY& D. MILLER " ?R^T?+aTETHa?E?•TM??SI""ac?T rPAV"`I FH°P'v°Rro
2213 OLDGERYSBURGROAD ;NmA_j5 VS"WTMNMMTOTMWUMTEHUMPAMEUTIME
CAMPHILLPA17011 -'UWr,MJTFMI»eTOPWSUCH NOME WALL WPCISENO®uranxuon
UABR"ffAW KND UPCNTHE=4PAW. RsACENM EH RERIEGEWAWD.
`IImnAQetl RGVIBMaTNE
All r;
LM.
Risks
,
C
W
r
n
L
X
W
NOTICL CANCELLATION, NONRENEWAL OR
INCREASE IN POLICY PREMIUM
(Pennsylvania)
INSURANCE WESTERN HERITAGE INSURANCE CO.
COMPANY
BARON SOCIAL CLUB
NAMEAND 2025 CARLISLE RD.
ADDRESS CAMP HILL PA 17011
OF INSURED
KJND OF POLICY:
GENERAL LIABILITY
POUCYNO.: SCP0534083
CANCELLATION, EXPIRATION OR INCREASE WILLTAKE EFFECTAT:
07/25/05 12:01 A.M.
([Am) (HOURSTNaoAMTIME)
DATE OF MAIUNG: 07105105
ISSUED THROUGH AGENCY OR OFFICE AT:
ALL RISKS, LTD.
YORK, PENNSYLVANIA
(Specific Information concerning the cancellation or Inonrenewal
has been given to the Insured.)
TO LIENHOLDER:
? Yw we hereby notified that theagreemas undrfhe Lcss PaI&WDOaue payadaWym w UWlhdda, wtrdt is s pert of the abo pdicy, issued tothe
aboveInsured, is hereby catcalled arwxrtswsd in accadah;%iWth thecardMOns d the Pdicy, said c %Aetim a nmren®sd to be Wecnw m and
after theheur and datementio vii at twe
TO MORTGAGEE: CATEoFMauNa 07/05105
? Effective =505 .9112MLM Mends,. Tim), wehar" raicai a narah" the Mm
made Penditabw mrtdmedpdfcyendaiw Meabvamrroated 9sgeeA9reamrswhich is
pd(cy iewed to tha Irwred vaned abwacowrin9 m
BARON SOC A! Q UR
andmade RayeMatoywmmatgegm(astmtw). in&aweMd7we
INSURANCE WESTERN HERITAGE INSURANCE CO.
COMPANY
NAME AND JENNIFER DELANEY & D MILLER
ADDRESS 2213 OLD GETTYSBURG ROAD
OF 1.104. CAMP HILL PA 17011
HOLDER OR
MORTGAGEE
-- • ALL RISKS, LTD.
AURIORIZED REPRESENTATIVE
GU 3129 (Ed. 2w) UNIFORM PRINTING 8 SUPPLY, INC., ISM UENHOLDER'S/MORTGAGEE'S COPY ARF6679C
07/05/05 BFILLMORE
•SEP-08-2005 THU 12100 PM GUNN MOWERY INSURANCE FAX NO. 7177616159
GunnAwMower
?.?.. w LLC
Insurance. Benefits. Integrity.
MAILING ADDRESS: P.O. Box 90o. Camp Hill, PA 17001-0900
STREET ADDRESS' 650 N. 12" Street, Lemoyne, PA 17043
TELEPHONE (717) 761-4600, Facsimile (717) 761-6159
WEBSITE: GunnMow" tom
FACSIMILE COVER PAGE
To: Jennifer Delaye & D. Miller
Date/Time. 9/8/2005; 11::51 AM
Co:
Fax: 730 466-2
Subject: Baron Social Club Insurance
From: Name: Gary D. Iiarshbarger CPCIJ,
ASLI
F.xt: 3022
Cmail: gary@gunnmowery,com
This is page 1 of 1
P. 01
This is notification to you in your status as Additional Insured that the Western Heritage
Insurance Company policy # SCP0534083 effective 04/08/2005 was cancelled effective
07/25/2005 for non-payment of premium.
This document is intended for the above entity only and is strictly confidential, Unauthorized use may be a violation of
federalistate law. If you received this document in error, Please notify Us ASAP. Thank you.
+ Gunn-Mowery, LLC, Carnp Hill, PA 1717) 761.4600
+ Gaughen Insurance. Camp Hill, PA P 171761-2919 + Bowman Insurance, Hanover, PA (717) 637-227?
+ Dodge Insurance, Camp Hill, PA t717),657-3233 + New Cumberland Insurance, Camp Hill, PA (717) 774-1481
+ Mechanicsburg Insurance, Me(r0nics0urt3, °A 1717) 760-0231 + Brightblll-Perkins Insurdnce, MCChanic.bur'q, PA 11 7 10 766-0741
s
y
RHOADS, '_; ;-,
& SINON LLP
Jack F. Hurley, Jr.
ph (717) 231-6616
Jk(717) 231-6676
jhurley@rhoads-sinon.com
FILENO' 9611/01
July 21, 2005
Re: Lease Purchase Agreement, dated 11 February, 2004, between Jennifer L. DeLaye
and Drew J. Miller (collectively as Lessor) and Safet Klovo (as Lessee)
Safet Klovo CERTIFIED MAIL RETURN RECEIPT
149 Faith Circle REQUESTED
Carlisle, PA 17013
Dear Mr. Klovo:
I represent the Lessor with regard to the above referenced Lease Purchase Agreement.
This is to notify you that pursuant to Section 1.6 of the Lease Purchase Agreement, Lessor
hereby terminates the Agreement effective as of the date of this notice. This termination is
pursuant to your failure to comply with and provide satisfactory evidence of the insurance
coverages required under Section 1.10 of the Agreement and your failure to remedy this breach
within thirty (30) days after written notice from Lessor.
Lessor will provide you with a period of thirty (30) days from the date of this letter to
remove all furniture, equipment, and other personalty owned by you from the Premises. Such
removal shall be accomplished in a manner so as to not damage the premises. If your personalty
is not removed within the thirty (30) day period, Lessor may exercise any remedies under the
Lease or available at law, including taking possession of such personalty and selling at auction or
otherwise disposing of the personalty.
Please address any correspondence with regard to this matter to me.
Very truly yours,
JFH/sat
cc: Ms. Jennifer DeLaye
Mr. Drew J. Miller
RHOAD SrNg>j LL
By:
ack fur ey, r.
572152.1
Rhoads & Sinoo UP • Attorneys at law • Twelfth Floor • One Soutll Market Square PO- 11os 1146
lta rrlsburs_ P,417106-1140 • uh (717) J43.5721 • 1, `7171 rr?_ia,o .......... .I--] < ...
..
'n
.%
W
41,
ANIV*
OAD S Itl 111II,
& SINON LLP
0 Jack F. Hurley, Jr.
ph (717) 231-6616
fx (717) 231-6676
jbiirley@rhoads-sinon.com
PILE NQ 9611/01
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
AND FIRST CLASS MAIL
Mr. Safet Klovo
149 Faith Circle
Carlisle, PA 17013
August 22, 2005
Re: Lease Purchase Agreement, dated 11 February, 2004, between. Jennifer L. DeLaye
and Drew J. Miller (collectively as Lessor) and Safet 1{lovo (as Lessee)
Dear Mr. Klovo:
This is to advise you, pursuant to my letter of July 1, 2005, that the Lessor has
taken possession of the leased premises, has had the locks "re-keyed" and has changed the utility
services to the name of the Lessor. You will be responsible for paying any utility services
through the date of the change over.
Lessor will permit you to access the leased premises for the purpose of removing
any personal property located thereon for a period expiring on September 15, 2005. If your
personal property is not removed from the premises by that date, then Lessor may exercise any
remedies available to the Lessor, including selling the personalty at auction or otherwise
disposing of the personalty.
Please address any communications with regard to this matter directly to
me.
Very truly yours,
RHOADS & SINON I.LP
By:
JFIVdnt
cc: Ms. Jennifer DeLaye
Mr. Drew J. Miller
512152.1
Rhoads & Sinon UP • Attorneys at Law • Twelfth Floor • One South Market Square • PO. Bo.a 1146
1-ILr6sbm-, PA 17106-1146 • rh (717) 233-5731 - fx (717) 232-1459 • w.vw.rhna dl. ainnn rnm
cl?
f g1?'? ',
ll-
4
t
c?
tT f I
y
t •_ .
F. ? J
N
N
d
v?
-O
W
lv
CO
0
"\
i
HAROLD S. IRWIN, III, ESQ
SUPREME COURT ID NO 29920
64 SOUTH PITT STREET
CARLISLE, PA 17013
717-243.6090
ATTORNEY FOR DEFENDANT
JENNIFER L. DELAYE and
DREW J. MILLER,
Plaintiffs
V.
SAFET KLOVO,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY PENNSYLVANIA
: CIVIL ACTION - LAW
: NO. 2005 - 4808 CIVIL TERM
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 an attorney
and filing in writing with the court your defenses or objections to the claims set forth
against you. You are warned that if you fail to do so the case may proceed without you
and a judgment may be entered against you by the court without further notice for any
money claimed 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, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
717-249-3166
JENNIFER L. DELAYE and : IN THE COURT OF COMMON PLEAS OF
DREW J. MILLER, : CUMBERLAND COUNTY PENNSYLVANIA
Plaintiffs
V. : CIVIL ACTION - LAW
SAFET KLOVO, : NO. 2005 - 4808 CIVIL TERM
Defendant
ANSWER WITH NEW MATTER AND COUNTERCLAIM
ANSWER
NOW comes the defendant, by his attorney, Harold S. Irwin, III, Esquire, and files this
response to plaintiffs' complaint, representing as follows:
1. The averments of this paragraph of plaintiffs' complaint are admitted.
2. The averments of this paragraph of plaintiffs' complaint are admitted.
3. The averments of this paragraph of plaintiffs' complaint are admitted.
4. The averments of this paragraph of plaintiffs' complaint do not require a
response.
5. The averments of this paragraph of plaintiffs' complaint are conclusions of law to
which no response is required. However, if a response is required these averments are
admitted.
COUNTI
Delaye & Miller v. Klovo
Declaratory Judgment
6. Defendant incorporates by reference his responses to plaintiffs' complaint,
paragraphs one through five, inclusive, as if set forth herein in their entirety.
7. The averments of this paragraph of plaintiffs' complaint are admitted.
8. The averments of this paragraph of plaintiffs' complaint are admitted.
9. The averments of this paragraph of plaintiffs' complaint are admitted. By way of
further response, the lease speaks for itself.
10. The averments of this paragraph of plaintiffs' complaint are admitted.
11. The averments of this paragraph of plaintiffs' complaint are admitted in part and
denied in part. The December 31st letter is admitted; however, it is not attached to the
complaint as Exhibit "B". Exhibit "B" has been omitted.
12. The averments of this paragraph of plaintiffs' complaint are admitted.
13. The averments of this paragraph of plaintiffs' complaint are admitted.
14. The averments of this paragraph of plaintiffs' complaint are admitted.
15. The averments of this paragraph of plaintiffs' complaint are admitted.
16. The averments of this paragraph of plaintiffs' complaint are admitted. By way of
further response, the lease speaks for itself. Furthermore, defendant denies that
plaintiff has the right to terminate this lease for the reasons set forth in his new matter
below, the averments of which are incorporated herein by reference as if fully set forth
herein at length.
17. The averments of this paragraph of plaintiffs' complaint are admitted. By way of
further response, the lease speaks for itself. Furthermore, defendant denies that
plaintiff has the right to terminate this lease for the reasons set forth in his new matter
below, the averments of which are incorporated herein by reference as if fully set forth
herein at length.
18. The averments of this paragraph of plaintiffs' complaint are admitted.
19. The averments of this paragraph of plaintiffs' complaint are admitted.
20. The averments of this paragraph of plaintiffs' complaint are admitted. By way of
further response, the lease speaks for itself. Furthermore, defendant denies that
plaintiff has the right to terminate this lease for the reasons set forth in his new matter
below, the averments of which are incorporated herein by reference as if fully set forth
herein at length.
21. The averments of this paragraph of plaintiffs' complaint are admitted. By way of
further response, the lease speaks for itself. Furthermore, defendant denies that
plaintiff has the right to terminate this lease for the reasons set forth in his new matter
below, the averments of which are incorporated herein by reference as if fully set forth
herein at length
22. The averments of this paragraph of plaintiffs' complaint are admitted. By way of
further response, the lease speaks for itself. Furthermore, defendant denies that
plaintiff has the right to terminate this lease for the reasons set forth in his new matter
below, the averments of which are incorporated herein by reference as if fully set forth
herein at length.
23. The averments of this paragraph of plaintiffs' complaint are admitted. By way of
further response, the lease speaks for itself. Furthermore, defendant denies that
plaintiff has the right to terminate this lease for the reasons set forth in his new matter
below, the averments of which are incorporated herein by reference as if fully set forth
herein at length.
24. The averments of this paragraph of plaintiffs' complaint are admitted.
25. The averments of this paragraph of plaintiffs' complaint are admitted.
26. The averments of this paragraph of plaintiffs' complaint are admitted. By way of
further response, defendant believes and therefore avers that plaintiffs have
persistently intended to do so, have used whatever means possible to frustrate the
defendant and to intimidate him into leaving voluntarily, thereby assuming possession
of the premises and the substantial improvements made by the defendant thereto, and
have now resorted to acting on said intentions by filing this action based upon
misrepresentation of the facts as further described in defendant's new matter and
counterclaim below.
27. The averments of this paragraph of plaintiffs' complaint are admitted.
28. The averments of this paragraph of plaintiffs' complaint are admitted.
29. The averments of this paragraph of plaintiffs' complaint are admitted. However,
defendant denies that plaintiff has the right to terminate this lease for the reasons set
forth in his new matter below, the averments of which are incorporated herein by
reference as if fully set forth herein at length.
30. The averments of this paragraph of plaintiffs' complaint are admitted.
31. The averments of this paragraph of plaintiffs' complaint are admitted. By way of
further response, said judgment will also "be of immediate practical help" to the
defendant, with whose rights and livelihood the plaintiffs have unjustly affected.
32. The averments of this paragraph of plaintiffs' complaint are conclusions of law to
which no response is required.
33. The averments of this paragraph of plaintiffs' complaint are admitted.
34. The averments of this paragraph of plaintiffs' complaint are denied. To the
contrary, defendant believes and therefor avers that plaintiffs have no right to re-let the
premises. In addition, plaintiffs can simply permit defendant to re-take possession so
that he can continue to pay rent to the plaintiffs until he exercises his option to purchase
the premises as provided in the parties' lease purchase agreement. Plaintiffs are the
source of their own difficulty in that they have improperly denied defendant access to
the premises.
35. The averments of this paragraph of plaintiffs' complaint are denied. On the
contrary, plaintiffs have no right to terminate this lease for the reasons set forth in
defendant's new matter below, the averments of which are incorporated herein by
reference as if fully set forth herein at length.
WHEREFORE, defendant requests that plaintiffs' complaint be dismissed and that
judgment be entered on behalf of defendant.
NEW MATTER
36. Defendant incorporates by reference his responses to plaintiffs' complaint,
paragraphs one through thirty-five, inclusive, as if set forth herein in their entirety.
37. Defendant did obtain liability insurance in an amount double the amount required
by the parties' agreement. Said insurance was effective April 8, 2005 for the period of
one year and listed plaintiffs as additional insureds. See plaintiffs' Exhibit "D" attached
to their complaint.
38. Following delivery to the plaintiffs of the Certificate of Insurance attached to
plaintiffs' complaint as Exhibit "D", plaintiffs advised defendant that they were
unsatisfied with said insurance and demanded that he obtain similar insurance from
another company.
39. The parties' lease does not grant to the plaintiffs the right to approve or
disapprove the insurance provided the other insurance requirements in the lease -
purchase agreement were met. See paragraph 1.10 of the parties' lease, attached to
plaintiffs' complaint as their Exhibit "A".
40. Nevertheless, prior to temporarily closing the business in July to travel to his
home country of Bosnia for vacation, defendant offered to cancel the insurance and,
upon his return from Bosnia agreed to procure other insurance. Plaintiffs agreed to this
course of action.
41. Based on this agreement, defendant contacted his insurance agent and directed
him to cancel the insurance. The insurance was cancelled on July 25th and a refund of
unearned premium was returned to the finance company which financed the premium.
42. Within about one week of defendant's departure for Bosnia, on July 215
plaintiffs surreptitiously entered the premises and changed the locks thereto in order to
prevent defendant access upon his return.
43. Under the circumstances, reasonable cause does not exist for the termination of
this lease and defendant should be permitted immediate access to the premises.
44. Defendant believes and therefore avers that plaintiffs fabricated an objection to
the insurance and manipulated defendant into canceling it in order to take advantage of
defendant and retake possession of the premises and all of the improvements which
defendant has made to the premises.
45. Defendant believes and therefor avers that the sole purpose of this action is that
plaintiffs are disappointed with the lease - purchase arrangement that they have made
with defendant and seek to evict him in order to make a better deal with a third party.
WHEREFORE, defendant requests that plaintiffs' complaint be dismissed and that
judgment be entered on behalf of defendant.
COUNTERCLAIM
46. Defendant incorporates by reference his responses to plaintiffs' complaint,
paragraphs one through thirty-five, and the averments of his new matter, paragraphs
thirty-seven through forty-five, inclusive, as if set forth herein in their entirety.
47. During the course of defendant's tenancy of the premises, defendant made
substantial renovations and improvements to the premises for which he paid at least
$18,000.00.
48. Said renovations and improvements were with the expectation that he would
remain in possession for the life of the lease and thereafter have the option of
purchasing the premises.
49. Plaintiffs' change of the locks at the premises, their exclusion of defendant from
the premises and their present effort to terminate defendant's tenancy thereof have
prevented defendant from the benefit he intended when making the improvements to
the premises.
50. If plaintiffs are permitted to successfully remove defendant from the premises,
exclude defendant therefrom and to terminate this lease, then plaintiffs' will be unjustly
enriched by the value of the improvements, believed by defendant to be at least equal
to his costs in making the improvements.
51. The terms of the lease permit defendant to sublease the premises to Carol
Zimmerman.
52. Defendant did have a sublease arrangement with Carol Zimmerman whereby
she paid to the defendant the sum of $275 per time that she used the premises.
53. Defendant believes and therefore avers that even though he was still the rightful
tenant and the recipient of rent from the sublessee, Carol Zimmerman, plaintiffs
received from and have retained the sum of at least $2,400 from Carol Zimmerman for
her use of the premises during defendant's tenancy.
54. All said amounts paid by Carol Zimmerman to the plaintiffs rightfully belong to
defendant.
55. When plaintiffs wrongfully excluded defendant from the premises, plaintiff did not
immediately change the utilities that were still in defendant's name. Therefore,
defendant incurred charges for the month of August for electric ($580), water ($60) and
telephone ($35) when he did not have possession of the premises.
56. At the beginning of defendant's tenancy, defendant paid to the plaintiffs the sum
of $3,000 as a security deposit, which sum has not been returned to the defendant.
57. Plaintiffs' wrongful exclusion of the defendant from the premises have caused
defendant to lose profits from the operation of his business therein and said amounts
should be reimbursed to the defendant by the plaintiffs.
58. Plaintiffs' wrongful exclusion of the defendant from the premises was arbitrary
and capricious and this action to terminate the lease is an abuse of the processes of
this Court such that all of defendant's costs and attorney fees associated with the
defense of this action should be reimbursed to him by the plaintiffs.
WHEREFORE, defendant demands judgment against the plaintiffs in the following
amounts:
Cost of Improvements $18,000.00
Rent Paid by Carol Zimmerman 2,400.00
Utilities 675.00
Security Deposit 3.000.00
TOTAL $24,075.00,
plus such sums as will compensate defendant for his lost profits as of the time of trial
and his costs and fees as of the time of trial, and such other relief as the Court may
deem appropriate.
September 27, 2005
Harold S. Irwin, III
Attorney for Defer
VERIFICATION
I hereby state that I am the defendant in this action and that the facts and information
set forth in the foregoing answer and new matter are true and correct to the best of my
knowledge, information and belief. I understand that false statements herein are made
subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification
to authorities.
September ?, 2005
CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct copy of defendants Answer upon
the plaintiff by placing same in the United States mail at Carlisle, Pennsylvania, Regular
Mail on this undersigned date and addressed as follows:
JACK F HURLEY JR ESQ
RHOADS & SINON LLP
PO BOX 1146
HARRISBURG PA 17108-1146
September 29, 2005 v
HAROLD S. IRWIN,
Attorney for Defem
64 South Pitt Street
Carlisle, PA 17013
717-243-6090
rJ hl
cr
?n y ^?
y ?,O
4
SHERIFF'S RETURN - REGULAR
CASE NO: 2005-04808 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
DELAYE JENNIFER L ET AL
VS
KLOVO SAFET
MICHAEL BARRICK
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within NOTICE AND ACTION FOR
KLOVO SAFET
was served upon
DEFENDANT
the
, at 1359:00 HOURS, on the 19th day of September, 2005
at 149 FAITH CIRCLE
CARLISLE, PA 17013
by handing to
SAFET KLOVO
a true and attested copy of NOTICE AND ACTION FOR
DECLARATORY JUDGMENT
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 4.00
Postage .37
Surcharge 10.00
1?
So Answers:
??+ rr??; .rP
R. Thomas Kline
09/21/2005
RHOADS & SINON
Sworn and Subscribed to before
me this day of
A.D.
Prot dry
By:
epu y Sheri
Jack F. Hurley, Jr., Esquire
Attorney I.D. No. 24414
John M. Coles, Esquire
Attorney I.D. No. 87398
Timothy J. Nieman, Esquire
Attorney I. D. No. 66024
RHOADS & SINON LLP
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiffs
Jennifer L. Delaye &
Drew J. Miller,
Plaintiffs
V.
Safer Klovo,
Defendant
To: Safet Klovo
c/o Harold S. Irwin, III
64 South Pitt Street
Carlisle, PA 17013
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2005-4808 CIVIL TERM
NOTICE TO PLEAD
You are hereby notified to file a written response to the enclosed New Matter within twenty
(20) days from service hereof or a judgment may be entered against you.
Respectfully submitted,
RHOADS & SINON LLP
e-n
By: I
Jack F. Hurley, Jr., Esquire
John M. Coles, Esquire
Timothy J. Nieman, Esquire
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Jennifer L. DeLaye &
Drew J. Miller
Jack F. Hurley, Jr., Esquire
Attorney I.D. No. 24414
John M. Coles, Esquire
Attorney I.D. No. 87398
Timothy J. Nieman, Esquire
Attorney I.D. No. 66024
RHOADS & SINON LLP
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-114(
(717) 233-5731
Attorneys for Plaintiffs
Jennifer L. Delaye &
Drew J. Miller,
Plaintiffs
V.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Safet Klovo,
Defendant
NO. 2005-4808 CIVIL TERM
PLAINTIFFS' REPLY TO NEW MATTER AND
ANSWER & NEW MATTER TO COUNTERCLAIM
NOW COME Plaintiffs Jennifer L. Delaye and Drew J. Miller ("Plaintiffs"), by their
attorneys, Rhoads & Sinon LLP, and file the within Reply to New Matter and Answer & New
Matter to Counterclaim as follows:
REPLY TO NEW MATTER
36. The allegations set forth in Plaintiffs' Complaint, paragraphs one through thirty-
five, are incorporated herein by reference.
37. The writing attached to the to the Complaint as Exhibit "D" is a writing that
speaks for itself.
38. Admitted in part and denied in part. Plaintiffs admit that Defendant delivered the
Certificate of Insurance. Plaintiffs specifically deny advising Defendant that he procure similar
insurance from another insurer. To the contrary, Plaintiffs informed Defendant that the
581629.1
insurance he procured was inadequate under the terms of the Agreement in that it failed to cover
alcohol related losses, i.e., a large part of Defendant's business operations. Section 1.10(a) of the
Agreement requires Defendant obtain and maintain an "all risks" policy. Further, Defendant
failed to make payments on the premium of said policy, and thus, failed to maintain insurance on
the premises as required by the Agreement.
39. The document attached to the Complaint as Exhibit "A" is a writing that speaks
for itself. Plaintiffs deny that the insurance requirements were met. Specifically, Section 1.10(a)
of the Agreement requires that Defendant procure an "all risks" policy. Defendant's failure to
procure coverage of alcohol related matters while serving alcohol on the premises renders the
insurance unsatisfactory under the terms of the Agreement. Defendant's failure to procure an
"all risks" policy sufficient to cover all of Defendant's business operations was a failure to
perform under the Agreement.
40. Denied. Plaintiffs deny that Defendant offered to cancel the insurance and denies
granting permission to Defendant to cancel the insurance policy.
41. Denied. Plaintiffs were informed by Defendant's insurance company that
Defendant's policy was cancelled due to non-payment of premium, not due to voluntary
cancellation by the Defendant.
42. Denied. Plaintiffs entered the premises and changed the locks on August 22,
2005 after Defendant was notified by letter dated July 21, 2005 of Plaintiffs' intent to terminate
the Agreement.
43. Denied. The allegations contained in paragraph 43 constitute conclusions of law
to which no response is required. To the extent that a response is appropriate, this allegation is
denied. Defendant's failure to procure and maintain satisfactory insurance coverage resulted in
-2-
Defendant defaulting under the terms of the Agreement, thereby providing Plaintiffs with the
right of termination and re-entry.
44. Denied. Plaintiffs deny fabricating an objection to the insurance or manipulating
the Defendant into canceling the policy in order to terminate the Agreement. Further, Plaintiffs
aver that Defendant's improvements to the building actually resulted in a decrease in the value of
the building.
45. Denied. Plaintiffs deny seeking to evict Defendant for the purpose of making a
better deal with a third party. To the contrary, Plaintiffs rightfully seek to evict Defendant for his
continuous and substantial breaches under the Agreement.
WHEREFORE, Plaintiffs Jennifer L. Delaye and Drew J. Miller respectfully requests that
this Court enter judgment in their favor and against Defendant Safet Klovo and further request
that this Court award Plaintiffs their costs, including attorneys' fees, and such other relief as
allowed by law.
ANSWER TO COUNTERCLAIM
46. Plaintiffs incorporate by reference the allegations set forth in Plaintiffs'
Complaint, paragraphs one through thirty-five, and the responses to Defendant's New Matter,
paragraphs thirty-six through forty-five, as if set forth herein in their entirety.
47. Admitted in part and denied in part. Plaintiffs admit that Defendant did make
improvements to the premises. Plaintiffs are without knowledge or information sufficient to
form a belief as to the truth of Defendant's allegation that the improvements cost him at least
S18,000. Strict proof thereof is demanded at time of trial. Byway of further answer, Plaintiffs
reiterate their averment in paragraph 44 that said improvements actually decreased the value of
the premises.
-3-
48. Plaintiffs are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 48 and the same are therefore denied. Proof thereof, if
relevant, is demanded at time of trial. Further, Defendant made the improvements at his own
risk.
49. Denied. Plaintiffs deny that their exclusion of Defendant from the premises and
effort to terminate the Agreement have prevented Defendant from the benefit of the Agreement.
To the contrary, Plaintiffs maintain that Defendant's deprivation of the benefit is of his own
doing through his failure to perform pursuant to the terms of the Agreement.
50. Denied. Plaintiffs deny that they would be unjustly enriched by the value of the
improvements upon successful removal of Defendant from the premises. To the contrary,
Plaintiffs will be required to expend substantial costs in removing said improvements in order to
render the premises marketable once again.
51. Admitted.
52. Denied. Plaintiffs had no knowledge of any written sublease arrangement
between Defendant and Carol Zimmerman. However, Plaintiff was aware of the fact that Carol
Zimmerman paid Defendant to use the premises for bingo.
53. Admitted in part and denied in part. Plaintiffs admit retaining at least $2,400
from Carol Zimmerman in exchange for her use of the premises. Plaintiffs deny that Defendant
was the rightful tenant and further aver that any rent due from Zimmerman was rightly received
by Plaintiffs during the months in which no rent was received from Defendant.
54. Denied. Any rents due from Zimmerman to Defendant were rightfully owed to
Plaintiffs due to Plaintiff's rightful termination of the Agreement.
-4-
55. Denied. To the contrary, Plaintiffs aver that the utilities were changed after the
Plaintiff re-entered and took possession of the premises on August 22, 2005. Until that time,
Defendant retained possession and control of the premises.
56. Admitted.
57. Denied. The allegations contained in paragraph 57 constitute conclusions of law
to which no response is required. To the extent that a response is appropriate, Plaintiffs aver that
their termination of the Agreement and subsequent exclusion of Defendant from the premises
was rightful due to Defendant's continuous and substantial default under the Agreement. By
way of further answer, Plaintiffs lack knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph 57 regarding the amount of profits Defendant
derived from the business. Strict proof thereof is demanded at time of trial.
58. Denied. The averments contained in paragraph 58 constitute conclusions of law
to which no response is required. To the extent that a response is appropriate, Plaintiffs maintain
that the termination of the Agreement and exclusion of Defendant from the premises was lawful
and that the current action is proper.
WHEREFORE, Plaintiffs Jennifer L. Delaye and Drew J. Miller respectfully requests that
this Court enter judgment in their favor and against Defendant Safet Klovo and further request
that this Court award Plaintiffs their costs, including attorneys' fees, and such other relief as
allowed by law.
NEW MATTER TO COUNTERCLAIM
59. Plaintiffs incorporate by reference the allegations set forth in Plaintiffs'
Complaint, paragraphs one through thirty-five, and the responses to Defendant's New Matter,
-5-
paragraphs thirty-six through forty-five, and the allegations set forth in Plaintiffs' Answer to
Defendant's Counterclaim as if set forth herein in their entirety.
60. At all relevant times, Plaintiffs have acted in a manner consistent with and
according to their obligations under the Agreement and, accordingly, Defendant has no claim for
damages.
61. At all relevant times, Plaintiffs have exercised their best efforts to fulfill all of
their obligations as set forth in the Agreement and, accordingly, Defendant has no claim for
damages.
62. Any damages sustained by Defendant were as a direct result of Defendant's own
acts or omissions and failure to conform to obligations he assumed under the Agreement.
63. Defendant's claims under the Agreement are barred by the failure of
consideration in that Defendant has failed to meet his contractual obligations under the
Agreement.
64. Defendant's claims under the Agreement are barred in that Defendant has failed
to comply with the terms of the Agreement.
65. There is no causal connection between the damages sought by Defendant and any
conduct or omission by the Plaintiffs.
66. Defendant's claims under the Agreement are barred in that Defendant's failure to
comply with the terms of the Agreement justified Plaintiffs' termination of the Agreement and
retaking of possession of the premises.
67. Defendant's counterclaim fails to state a claim upon which relief can be granted.
WHEREFORE, Plaintiffs Jennifer L. Delaye and Drew J. Miller respectfully requests that
this Court enter judgment in their favor and against Defendant Safet Klovo and further request
-6-
that this Court award Plaintiffs their costs, including attorneys' fees, and such other relief as
allowed by law.
Respectfully Submitted,
RHOADS & SINON LLP
By:
Jack F. Hurle* Jr., squire
John M. Coles, Esquire
Timothy J. Nieman, Esquire
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Jennifer L. DeLaye &
Drew J. Miller
7-
VERIFICATION
I, Drew J. Miller, depose and say, subject to the penalties of 18 Pa. C.S. § 4904 relating
to unsworn falsification to authorities, that the facts set forth in the foregoing are true and correct
to the best of my knowledge, information an(
Date: to / / ? 05-
'It 1111? I
(Printed Name)
CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct copy of Plaintiffs' Reply to New
Matter and Answer & New Matter to Counterclaim upon the Defendant by placing same in the
United States mail at Harrisburg, Pennsylvania, Regular mail on this undersigned date and
addressed as follows:
Harold S. Irwin, III
64 South Pitt Street
Carlisle, PA 17013
October 18, 2005
??t6c? Sf?v2.
-9-
r? :i/
?
4:
?
.-i
C ? i.`,-,
t ,-s t
:G
?
_ G'
HAROLD S. IRWIN, III, ESQ
SUPREME COURT ID NO 29920
64 SOUTH PITT STREET
CARLISLE, PA 17013
717-243.9090
ATTORNEY FOR DEFENDANT
JENNIFER L. DELAYE and : IN THE COURT OF COMMON PLEAS OF
DREW J. MILLER, : CUMBERLAND COUNTY PENNSYLVANIA
Plaintiffs
V. : CIVIL ACTION - LAW
SAFET KLOVO, : NO. 2005 - 4808 CIVIL TERM
Defendant
DEFENDANT'S ANSWER TO PLAINTFFS' NEW MATTER
TO DEFENDANT'S COUNTERCLAIM
NOW comes the defendant, by his attorney, Harold S. Irwin, III, Esquire, and files this
response to plaintiffs' new matter to defendant's counterclaim, representing as follows:
59. Defendant incorporates by reference his responses to plaintiffs' complaint,
paragraphs one through thirty-five, the averments of his new matter, paragraphs thirty-
six through forty-five, and the averments of his counterclaim as if set forth herein in their
entirety.
60. The averments of this paragraph of plaintiffs' new matter to defendant's
counterclaim are denied for the reasons set forth in defendant's answer to the
complaint, defendant's new matter and defendant's counterclaim, the contents of which
are incorporated herein by reference as if set forth herein in their entirety.
61. The averments of this paragraph of plaintiffs' new matter to defendant's
counterclaim are denied for the reasons set forth in defendant's answer to the
complaint, defendant's new matter and defendant's counterclaim, the contents of which
are incorporated herein by reference as if set forth herein in their entirety.
62. The averments of this paragraph of plaintiffs' new matter to defendant's
counterclaim are conclusions of law to which no response is required. However, if a
response is required, these averments are denied for the reasons set forth in
defendant's answer to the complaint, defendant's new matter and defendant's
counterclaim, the contents of which are incorporated herein by reference as if set forth
herein in their entirety
63. The averments of this paragraph of plaintiffs' new matter to defendant's
counterclaim are conclusions of law to which no response is required. However, if a
response is required, these averments are denied for the reasons set forth in
defendant's answer to the complaint, defendant's new matter and defendant's
counterclaim, the contents of which are incorporated herein by reference as if set forth
herein in their entirety.
64. The averments of this paragraph of plaintiffs' new matter to defendant's
counterclaim are denied for the reasons set forth in defendant's answer to the
complaint, defendant's new matter and defendant's counterclaim, the contents of which
are incorporated herein by reference as if set forth herein in their entirety.
65. The averments of this paragraph of plaintiffs' new matter to defendant's
counterclaim are conclusions of law to which no response is required. However, if a
response is required, these averments are denied for the reasons set forth in
defendant's answer to the complaint, defendant's new matter and defendant's
counterclaim, the contents of which are incorporated herein by reference as if set forth
herein in their entirety.
66. The averments of this paragraph of plaintiffs' new matter to defendant's
counterclaim are denied for the reasons set forth in defendant's answer to the
complaint, defendant's new matter and defendant's counterclaim, the contents of which
are incorporated herein by reference as if set forth herein in their entirety.
67. The averments of this paragraph of plaintiffs' new matter to defendant's
counterclaim are conclusions of law to which no response is required. However, if a
response is required, these averments are denied for the reasons set forth in
defendant's answer to the complaint, defendant's new matter and defendant's
counterclaim, the contents of which are incorporated herein by reference as if set forth
herein in their entirety.
WHEREFORE, defendant requests that plaintiffs' complaint be dismissed and that
judgment be entered on behalf of defendant.
October 2-f , 2005
Harold S. Irwin, III
Attorney for Defer
Supreme Court ID
64 South Pitt Street
Carlisle, PA 17013
717.243-6090
VERIFICATION
I hereby state that I am the defendant in this action and that the facts and information
set forth in the foregoing answer and new matter are true and correct to the best of my
knowledge, information and belief. I understand that false statements herein are made
subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification
to authorities.
,ff11?
October 3?; 2005
SAFET KLOVO
CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct copy of the foregoing pleading
upon the plaintiff by placing same in the United States mail at Carlisle, Pennsylvania,
Regular Mail on this undersigned date and addressed as follows:
JACK F HURLEY JR ESQ
RHOADS & SINON LLP
PO BOX 1146
HARRISBURG PA 17108-1146
October 31, 2005
HAROLD S. IRWIIII, III
Attorney for Defe dai
Supreme Court ID C
64 South Pitt Street
Carlisle, PA 17013
717-243-6090
,-? ?
c?
?
?
?
?
? ?
?'
??t ro
?
F? = ?
`
? ' ?
l
lam"
?5 C._;
??
1 6.
Kenneth J. Rollins, Esquire
Attorney I.D. No. 200578
RHOADS & SINON LLP
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiffs
Jennifer L. Delaye &
Drew J. Miller,
Plaintiffs
V.
Safet Klovo,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2005-4808 CIVIL TERM
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Kindly mark the above-captioned action as discontinued without prejudice.
RHOADS & SINON LLP
By. ? --?
Kenne J. Rollins
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiffs
642045.1
CERTIFICATE OF SERVICE
I hereby certify that on September 29, 2008, a true and correct copy of the Praecipe to
Discontinue was served by means of United States mail, first class, postage prepaid, upon the
following:
Safet Klovo
c/o Harold S. Irwin, III, Esquire
64 South Pitt Street
Carlisle, PA 17013
(Counsel for Defendant)
n N
c-?
C`_ -yt
. --t
.
?? "X7