HomeMy WebLinkAbout05-6808
SAlOIS
SHUFF, FLOWER
& LINDSAY
ATfl}R:-.JEYSoAPJ.AW
2109 .'\1.lrkt't Strl'et
Camp II ill. PA
II
I
,
, FRANK P. TAMANINI,
Plaintiff
IN THE COURT OF
COMMON PLEAS
CUMBERLAND COUNTY, PA
vs.
CIVIL ACTION
JOHN T, MONGELLI,
GWENETH D. MONGELLI,
DEREK A, MONGELLI, and
DENISE A. MONGELLI,
Defendants
No. OS: ~rog
JURY TRIAL DEMANDED
NOTICE
You have been sued in court. If you wish to defend
against the claims set forth in the following pages, you must
take action within twenty (20) days after this Complaint and
Notice are served, by entering a written appearance personally
or by attorney and filing in writing with the court your
defenses or objections to the claims set forth against you. You
are warned that if you fail to do so the case may proceed
without you and a judgment may be entered against you by the
Court without further notice for any money claimed in the
Complaint or for any other claim or relief requested by the
Plaintiff. You may lose money or property or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH
BELOW.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE
ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY
OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO
FEE.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
717-249-3166
Saidis, Shuff, Flower & Lindsay
Date:
p -]o..;z ODS'-
Bin C. Caffrey, E
Attorney ID #42667
26 West High Street
Carlisle, PA 17013
Phone: 717,243.6222
Fax: 717.243.6510
Attorney for Plaintiff
FRANK P. T AMANINI,
Plaintiff
: IN THE COURT OF
: COMMON PLEAS
: CUMBERLAND COUNTY, P A
vs,
: CIVIL ACTION
JOHN T, MONGELLI,
GWENETH D. MONGELLI,
DEREK A MONGELLI, and
DENISE A. MONGELLI,
Defendants
:No, O~, &,Sog
: JURY TRIAL DEMANDED
COMPLAINT
COMES NOW, Plaintiff, Frank p, Tamanini, through his attorneys, Saidis,
Shuff, Flower & Lindsay, and in support of his claims avers the following:
1, Plaintiff is an adult individual who maintains an office and place of
business at 3223 Market Street, Camp Hill, Cumberland County, PA 17011.
2. Defendants John T, Mongelli and Gweneth D, Mongelli are adult
individuals residing at 608 Williams Grove Road, Mechanicsburg, Cumberland
County, PA 17055,
3, Defendants Derek A. Mongelli and Denise A Mongelli are adult
individuals residing at 915 Streamside Way, Marysville, Perry County, P A 17053,
4. On or about May 10, 2004 Plaintiff and Defendants entered into a
written agreement for the sale by Defendants and purchase by Plaintiff of certain land
known as 55 Sinclair Road, situated in Monroe Township, Cumberland County, P A
and consisting of 63,72 acres, more or less ("the real estate"). A copy of the
agreement is attached hereto as Exhibit "A" A copy of the legal descriptions of the
real estate is attached hereto as Exhibit "B,"
5, Also on May 10,2004, Plaintiff and Defendants entered into two
addenda to the first mentioned agreement, copies of which addenda are attached
hereto as Exhibits "c" and "D,"
6, On or about March 25, 2005, Plaintiff and Defendants entered into a
"Second Addendum to Agreement of Sale," a copy of which is attached hereto as
Exhibit "E."
7, In accordance with and in reliance on the above described agreements
between Plaintiff and Defendants (the "agreements"), Plaintiff has expended
considerable sums on engineering studies and drawings and applications for
governmental approvals,
8, On December 23, 2005, Defendants addressed a letter to Plaintiff,
copy attached hereto as Exhibit "F," in which they called the agreements "null and
void" and stated, "our agreement to sell you this property no longer exists,"
9, Also in the December 23, 2005 letter, Defendants threatened to "notify
the Township that you are no longer the equitable owner of the property,"
10. In an e-mail addressed to Plaintiff on December 28, 2005, copy
attached hereto as Exhibit "G," Defendant Derek A. Mongelli, on behalf of all the
Defendants, again called the parties' agreements "null and void,"
II. In the December 28, 2005 e-mail, Defendant Derek A. Mongelli gave
Plaintiff an ultimatum, stating that Defendants would consider the agreements
"abandoned" if they did not hear from Plaintiff by midnight, January 2, 2006,
12, The foregoing communications by the Defendants constitute a
repudiation of the agreements between Plaintiff and Defendants,
2
13, The deadline for closing on the conveyance contemplated in the
agreements between the Plaintiff and the Defendants has not yet arrived, and is
dependent on additional steps, fully contemplated and foreseen by the parties, in the
process of making the real estate suitable for development.
14, Plaintiff is concerned, given the tone of Defendants' recent written
communications, that Defendants will convey the real estate to another party, in
violation of the agreements, thus nullifying Plaintiff's planning, efforts and
expenditures.
COUNT I - SPECIFIC PERFORMANCE
15, Paragraphs 1-14 set forth above are incorporated herein by reference,
16. Plaintiff has performed his obligations under the agreements in a
timely and sufficient manner.
17, The real estate that is the subject of the parties' agreements is unique,
all the more so in consequence of Plaintiff's designs, planning and expenditures, and
of the various governmental approvals that Plaintiff has obtained,
18, Plaintiff will be irreparably harmed if Defendants convey the real
estate to another party,
19. There is no adequate remedy at law which would put Plaintiff in the
position he expects and has a right to be in absent Defendants' repudiation of the
agreements between Plaintiff and Defendants,
20, Justice requires that Plaintiff be granted specific performance and that
Defendants be ordered to comply with the agreements between Plaintiff and
3
Defendants and refrain from conveying the real estate or any interest therein to any
other party.
WHEREFORE, Plaintiff respectfully requests the Court to grant Plaintiff
specific performance, to order Defendants to perform the parties' agreements in
accordance with their terms, enjoin Defendants from conveying to any party other
than Plaintiff the real estate known as 55 Sinclair Road, Momoe Township,
Cumberland County, PA, consisting of63,72 acres, more or less, as more fully
described in the agreements and legal descriptions attached to Plaintiffs complaint as
Exhibits "A" through "E," and to grant such other and further relief as the Court
deems necessary, proper, or in the interests of justice.
COUNT 11- BREACH OF CONTRACT
21. Paragraphs 1-20 set forth above are incorporated herein by reference,
22. On or about November 30, 2005 Plaintiff offered to settle on the
conveyance contemplated by the parties' agreements any time after December 7,
2005, except December 9,2005, See Exhibit "H" attached hereto.
23. In response to Plaintiffs November 30,2005 proposal, Defendants
advanced a series of disingenuous excuses why they could not close on the
conveyance, and then declared the parties' agreements null and void and demanded
that the agreements be completely renegotiated.
24. Plaintiff believes and therefore avers that Defendants are remorseful
about the deal they made with Plaintiff, and consequently wish to evade their
obligations to perform in accordance with the parties' agreements,
4
25, Defendants' conduct described in paragraphs 23-24 is in bad faith,
intentional, willful and in derogation of Plaintiff's rights,
26. In reliance on his agreements with Defendants, Plaintiff has made the
expenditures specified on Exhibit "I" hereto,
27, Additionally, in consequence of Defendants' breach of the agreements,
Plaintiff will incur substantial lost profits to be derived from his development of the
real estate with residential units to be sold by Plaintiff.
WHEREFORE, Plaintiff demands judgment in his favor and against
Defendants in an amount exceeding $35,000,00, the limit for compulsory arbitration
under local rule, plus all applicable interest and costs.
Date: (2r ;.D. DS~
Respectfully submitted,
Saidis, Shuff, Flower & Lindsay
~. 1
ByUf
Brian C. Caffrey, Esquire
Attorney 10 #42667
26 West High Street
Carlisle, P A ] 7013
Phone: 717,243,6222
Fax: 717.243,6510
Attorney for Plaintiff
5
VERIFICATION
I hereby verify that the facts set forth in the foregoing Complaint are true and
correct to the best of my knowledge, information and belief. I understand that false
statements herein are subject to the penalties of 18 Pa,C.S,A Section 4904 relating to
unsworn falsification to authorities,
c~
Frank p, Tamanini
i.), , 3 n r? (-----
Date:' . C/ - 6/0
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Thjs form recommended ami approved fOf, bu; n,C}( l'e~lfided I.c use by, lhe 111<:mD\'.)o of the h,nnsyhania Association ',J! REALTORS"" (PAR)
A/S-VL
SELLER'S EUSIN 55 RELATIOi'iSHlP WITH PA LiCENSED BROKER i
BROKER (Company) &dlb-.iKSo<:.- PHONE.:J.11 ]hl b3~
ADDRESS 6~)C; ~----SJ=_C.-!i44-170~FAX 7/1 761~
BROKER IS THE AGENT FOR SELLER Designated Agent(s) for Seller. if applicable'
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Broker is NOT the Agent for Seller and is alan: l8r AGENT FOR BUYER 0 TRANSACTIQN LICENSEE
BUYER'S BUSIN ,. .'S RE ATIONSHIP WITH PA LICENSED BROKER
BROKER (Company) --- _. ,Ap,..s." r _~.~ PHONE 76/ h $00<;:)
ADDRESS 6'-t us- ~GT::....Q C'...Lt{=>/\-. IJQlL._ FAX -------2(, I I 't~
I BROKER IS THE AGENT FOR BUYER Desigrtated Agent(s) for Buyer, if applicable:, -,
OR 1,-.1'1 fie. IS. j...c.E^J 'J.8t> AfrEN T I
Broker is NOT the Agent lor Buyer and is alan: 0 AGENT FOR SELLER 0 SUBAGENT FOR SELLER 0 TRANSACTION LICENSEE.:
,
When the same Broker is Agent for Seller and Agent for Buyer, Broker is a Dual Ag~nt. AU of Broker's licensees are also Dual Agents UNLESS
there a.re separate Designated Agents for Buyer and SeHer. If the same Licensee is desigilatedfor Seller and Buyer, the Licensee is a Dual Agent.
L '<!tot!) %l\treement, dated b f I 0 ( !t
SELLER(S) .JOI.-\~. T: AN 1"\ C'JWbN t:::\ ~i.h HoN'OEL-L I
Dc Rt. K ~ ...U$lL~"1. <.) I\J G-GLf- I
~_~__ (\} ~V) /oe.. ~,lit-'S-L
. is between
,
called "Seller," and
BUYER(S)
ClUed "Buyer."
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12 3, TERMS (7-01)
14 (Al Purchase Price Two ""I Li-JO,.,)
is
U.S. Dollars
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which will be paid to SeIlef by Buyer as follows:
1. Cash or check at signing this Agreement: $ _~.D"V
2. Cash or check within ~ days of the execution of this Agreement: $
3, $
4. Cash. cashier's or cerLified check at time of settlement: $ I <1 CfO, t;L1PO
... t
TOTAL $ *-, DP<?, 0090
(B) Deposits paid on account of purchase price to be held by !LaL. fe, Seller, unless otherwise stated here,
(C) Seller's written approvall~ ~ on' or before.: ~ fIOt ~ _
(D) Settlement to be on 'S e.~ ..AF)P&'NJ.DU M , or before if Buyer andSelier agree
(E) Conveyance from Seller will be by fee simple deed of special warranty unless othenvise stated here: -
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(F) Payment of transfer taxes will be divided equa.lly between Buyer and Selley unless otherwise stated here:
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(G) At time of settlement, the following will be adjusted pro-rata on a daily basis between Buyer and Seller, reimbursing where applicable.-.
taxes (see Notices and Information Regarding Tax Proration); rents; inter-est on mortgage assumptions; condominium fees and home-
Qwner association fees, if any; water and/or sewer fees, if any, together with any other lienable municipal services. The charges are to
be pro-rated for the period(s) covered: SeHer wiH pay up to and including tbe date of settlement Buyer will pay for all days following
settlement, unless otherwise stated here:
,.
,
34
3G
36 4, FLXTURES AND PERSONAL PROPERTY (1-00)
37 (A) INCLUDED in this sale and purchase price arc all existil1g items permanently installed in the Property, free of liens. Also included:
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(B) LEASED items (not owned by Seller)'
eC) EXCLUDED,
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5, DATESITIME IS OF THE ESSENCE (6-02)
(A) The said dale for settlement and all other dates and times referred to [or tbe performance of any of the obligations of this Agreemenl are hereby
agreed to be of the essence of this Agreement and are binding.
(B) For the purposes of this Agreement, number o(days will be counted from the date of execution, by excluding the day this Agreement was
executed and including the last day of the time period.
(C) The date of settlement is not extended by any other provision of this Agreement and may only be extended by mutua! written agreement of the parties.
(D) Certain time periods are pre-printed in this Agreement as a convenience to the Buyer and Seller. Any pre-printed time periods are negotiable
and may be changed by striking out the pre-printed text and inserting a different time. period acceptable to all parties.
6, FINANCING CONTINGENCY (6-02)
)i' WAIVED. This sale is NOT contingent on fmancing_
o ELECTED
(A) This sale is contingent upon Buyer obtaining financing as follows;
1. Amount of loan $
2. rvfinimum Term
3_ Type: 0 Land Acquisition Only
OLand Acquistion and Construction
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BUJ'er Initials:
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l.U":: llll.l::1l:::-1.- .1 dtl:: <1:'> ula;)' U:'", UJUlIHJl.ttcU uy loll\:: }l~IlU\::r, llUL CU excte\)
.~". _~', ........J". 'JU.,''''''''' ~V .....~<:;y~ . .
a maximum interest fnte'6f ~ _ %.) _ . ' .. ( 1 d' a v . '-
5. Discount points, loan originatioll, lOan placement and other fees cbar?ed by theymder a<. _J!ercentage of the lOaJ} ex.c u mg n" m-sUI
ance premiums and VA funding fee) not to exceed % (0% if not spe-clfied! of.tbe loan... .' -
The interest rate and fees provisions required by J3uyer are satisfied if a lender makes aVaIlable to Buyer the n~ht to _gu~antee an l~terest rate
at or below the Maximum Interest Rate specified herein with the percentage fees at or belo\\' the amount. spec10ed h?rem. B,uyer g,lves ~eller
the right, at Seller's sole option and as-permitted by the lending institu~on and applicable laws, to contnbute. fmancially, WIthOut prounse of
reirob\lfsement, to the Buyer andJor lender to make the above terms avallable to Buy.er. . .. ., .,
(B) Within 10 days of tl1B execution of this Agreement, Buyer WIll make a completed, wntten ~nallcmg .appLtcatlOn to a r:sponsl?le lende-r accord-
ing to tile terms above. The Broker for Buyer, if any, otheni'ise tbe Broker for Seller]s authoflzed to commumcate Wlth the lender for
the purposes (If assisting in the loan process. . .
(C) 1. Financing commitment date . If a written coll1JIlitment IS not r~cel\':~ by Seller?y the above date,
Buyer and Seller agree to extend the conmlitment date until Seller terminates this Agreem.ent III wntmg by notice to Buyer.
2. Upon receipt of afinancing commitment, Buyer will pmmpt\y deliver a copy of the conunilment to Sel1:f. . .
3. Seller has the option to terminate this Agreement in writing, on or after the financing commitment date, if the fInancmg comrrutment:
a. Is not valid until the date of settlement, OR
b. Is conditioned upon the sale and settlement of any other property, OR
c. Contains any other condition not specified in this Agreement.
4. 1i this Agreement is terminated as specified in paragraphs 6 (C) (1) or (3), or financing is not received for settlement, all deposit monieS
paid on account of purchase price will be returned to Buyer. Buyer will be responsible for any premiums for mechanics' lien insuran'ce
and/or title search, or fee for cancellation of same, if any; AND/OR any premiums for flood insurance, mine subsidence insurance, andlor
ftre insurance with extended coverage dr cancellation fee, if any; AND/OR any appraisal fees and charges paid in advance to the' lender-
CD) Seller Assist
k!l\ NOT APPLICABLE
o APPLICABLE. Seller will pay:
o $ ,maximum, toward Buyer's closing costs as permitted by the lender.
o
7. INSPECTIONS (6-02)
(A) Seller hereby agrees to permit inspections by authorized appraisers, reputable certifiers, insurer's representatives, surveyors, municipal officials
and/or Buyel'; as may be required by the lending institutions, if any, or insuring agencies. Seller further agrees to permit any other inspections
required by or provided for in the terms of this Agreement. Buyer has the right to attend all inspections.
(B) Buyer agrees that Buyer, or anyone on the Property at Buyer's -direction or on Buyer's behalf, 'will leave the Property in its same conclition. In
the case of damage, Buyer will bear the risk-of restoring the Property or of reimbursing Seller for any loss of value.
(C) Buyer reserves the right to make a pre-settlement inspection of the Property. Buyer's right to make this inspection is not waived by any other
provision of this Agreement.
8. STATUSOFWATER(7-01)
(A) An off-Property source of water
o is not available for the Property.
..fit is available for the Property through (Name of Service Provider)
CONNECTION TO OFF-PROPERTY WATER SOURCE CONTINGENCY
o WAIVED. Buyer acknowledges that Buyer has the option to make this Agreement contingent on detennining that the terms of connecting
the Property to an off~Property water source are acceptable to Buyer. Buyer WAIVES THIS OPTION and agrees to the RELEASE set forth in
paragraph 23 of this Agreement. ...Wi<NI\}\)..........
X- ELECTED. Buyer will, within ~ 'd"ays of the execution of this Agreement and at Buyer's expense, deterrcine the teffilS of connecting
the Property to the water source. If the terms of connection are not acceptable to Buyer, Buyer will:
1. Accept the Property as is and agree to the RELEASE set forth in paragraph 23 of this Agreement, OR
2. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly
to Buyer and this Agreement will be VOID.
(B) 0 Seller represents that the Property is served by an on-site water source.
ON-SITE WATER SERVICE INSPECTION CONTINGENCY
o WAIVED. - Buyer acknowledges that Buyer has the option to request an on-site water service inspection of the Property. BUYER WAIVES
TIllS OPTION and agrees to the RELEASE set forill in paragraph 23 of this Agreement
o ELECTED
L Buyer has the option, w.ithin _ days of the execution of this Agreement and at Buyer's expense, to delive,r to Seller a vl/ritten inspec-
tion report by a qualified, professional wateI' testing company of the quality and/or quantity of the on-site water service
2. Seller agrees to locate and provide access to tlle on-site (or individual) water system, if applicable, at Seller's expense, if required by the
inspection company. Seller also agrees to restore the Property, at Seller's expense, prior to settlement.
3. If the report reveals that the water service does not meet the minimum standards of any applicable governmental authortty and/or fails to
satisfy the requn-ements for quality, audior quantity as set by the lender, if any, the.n Seller will, within -------'-- days of receipt of the
report, notify Buyer in writing of Seiler's choice to:
a. Upgrade the water service to the minimum acceptable levels, before settlement, in which case Buyer accepts the Property and
agrees to the RELEASE set forth in paragraph 23 of this Agreement, OR
b. Not upgrade the water service.
4. Ii Seller chooses not to upgrade the service to minimum acceptable levels, or fails to respond within the time given, Buyer will, within
~ days, either:
a. Accept the Property and the water service and, if required by tile lender,:if allY, and/or allY governmental authority, upgrade the water
service before settlement or within the time required by the lender, if any, and/or any governmental authority, at Buyer's expense
and with Seller's pemussion, wllich will not be umeasonabl'y withheld, and agree to the RELEASE set forth in paragraph 23 of this
Agreement. If Seller denies Buyer pennissioJl to upgrade the water serVice, Buyer may, within 5 days of Seller's denial, terminate
this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer
and this Agreement will be VOID, OR
b. Tenninate this Agreement, in whiCh case all deposit monies paid on account of purchase price will be returned promptly to Buyer
and this Agreement will be VOID.
(e) 0 Buyer is aware that there is no developed water source for the Property.
ON-SITE WATER SERVICE APPROVAL CONTINGENCY
o WAIVED. Buyer acknmvledges that Buyer has the option to make this Agreement contingent on receiviI1g municipal approval fortbe inst21~
lation of a well. BUYER WAIVES THIS OPTION ai1d agrees to the RELEASE set forth in paragraph 23 oftllis Agreement
o ELECTED. Within 10 days of the execution of this Agreement, Buyer will make a completed, written application for the wunicipal approval
for the installation of a well. This sale is contingent upon Buyer obtaining, within ~_ days of the execution of this Agreement. munici-
pal approval for the installation of a welL Buyer wilI pay all costs associated with 111e application for approval, irtcludiog but not limited la,
any municipal fees and test expenses. In the event Buyer is ufi",ble to secure approval for wen installation, Buyer ,vill either:
1. Accept the Property as is and agree to the RELEASE set forth in paragraph 23 of this Agreement, OR
2. Terminate this Agreement, in which case a.ll deposit monies paid on account of purchase price will be returned promptly to Buyer
and this Agreement will be VOID.
9, STATUS OF SEWER (6-02)
(A) Seller represents that Property is served by:
o Off-Property Sewage Disposal System
o Individual On-Lot Sewage Disposal System (See Sewage Notice 1)
o Individual ,On-Lot Sewage Disposal System in Pw;.;:irnity to Well (See Sewage Notice 1; see Sewage Notice 4, if applicable)
o Ten-acre Permit Exemption (See Sewage Notice 2)
o Holding Tank (See Sewage Notice 3)
o None (See Sewage Notice 1)
o None Avai.lable (See Sewage Notice 5 or Sewage Notice 6, as applicable)
o
(B) Connection to an off-Property sewage disposal system
o is not available for the Property.
,KJ. is availab for the operty through (Name of Service Provider)
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Buyer Initials:
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PUBLIC 5YSTE1I1 CONTINGENCY -r;;C ~n'/.)t;;JV>l-Jul'1
Q \\tArVED. Buyer acknowledges tha fer has the option to make this Agreement continger. . reCtheivREingLmE~~~pa~ ?~~o~al fOrgr,th: ~O~g~~'
nection of the Propetty to a sewage disposal system. BUYER WAIVES THIS OPTION and agrev::.lo e, t\0 ~ se 0 Ul para p
of this Agreement. .. .... . fl' - 1 val
o ELECTED. Within 10 days of the execution of this Agreement, Buyer WIll walce a completed, wntten :a~plica~01~ or t 1e muruClpa appro _po
for the connection of Ule Property to a sewage disposal system. This sale is contingent upon B~yer obtainIng, wIthm.------:--- days of the ex~-
cution of this Agreement, municipal approval for the connection of the Property to a sewage dlsposal system. ~uyel wtll p~y all costs aSSOCl-
ated '\vith the application for approval, including but not limited to, any municipal fees and test e:->penses.ln the event Buyer IS unable to secure
approval for sewer connection, Buyer will either: .
1. Accept the Property as is and agree to the RELEASE set forth in paragraph 23 of tlus Agr~eme?t, OR .
'2. Terminate this Agreement, in.which case all deposit monies paid on account of purchase price will be returned, promptly to Buyer and tlus
Agreement will be VOID.
(C) INDIVIDUA L ON-LOT SEWAGE DISPOSAL INSTALLATION CONTINGENCY
o WAI\'ED. Buyer acknowledges that Buyer has the opt~on to make this Agreement contingent on receiving all applicable government
approval for the installation of an individual sewage system. BUYER WAIVES TH1S OPTION and agrees to the RELEASE set forth in para-
graph 23 of this Agreement.
o ELECTED. -Within _ dllYs of the execution of this Agreement.
o Buyer
o Selier
will make a completed, written application to all appropriate authorities for the installation of an on-Jot sewage disposal system, and will pay
all costs associated with the application for approva1, including but not limited to, any fees and percolation test expenses.- This sale is contin-
gent upon the receipt of aU applicable government approval for the installation of an individual sewage system within -----------.: days of the exe-
cution of this Agreement. In the event test results are unacceptable to Buyer or approval for an individual sewage system is unable to-be secured,
Buyer \viII either'
I Accept the Property as is and agree to the RELEASE set fQrth in paragraph 23 of lhis Agreement, OR
2 Terminate tillS Agreement, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer and this
Agreement will be VOID. Buyer will promptly deliver all infonnation and testJesults acquired thrOl.lgh tbe approval process to Seller.
(D) INDIVIDUAL ON-LOT SEWAGE DISPOSAL INSPECTION COl\'TINGENCY
o WAIVED. Bnyer acknowledges that Buyer has the option to request an individual on-lot sewage disposal iJlspect10n of the Property BU'{ER
WAlVES THIS OPTION ~nd agrees to tile RELEASE Set forth in paragraph 23 of this Agreement.
o EUCITD .
1. Buyer has the option,-within ~ days of tbe execution of this Agreement and at Buyer's expense, to deliver to Seller a written inspec~
tion report by a qualified, professional inspector of the individual on-lot sewage disposal system. ,
2. Seller, at Seller's expense, agrees, if and as required by the inspection company" to locate, provide access to and empty the individual on-
lot sewage disposal system. Seller alsq agrees to restore tile Property, atSeller's expei1se, prior to'settlement.
3. If the report reveals -defects that do not require expansion or replacement of the existing sewage disposal system, Seller will, 'within
~ days of receipt of the report, notify Buyerin writing of Seller's choice to:
a. COlTect the defects before settlement, including retests, at Seller's expense, in which case Buyer accepts the Property and agrees to
the RELEASE set forth in paragraph 23 of this Agreement, OR
b. Not coneet the defects.
4. If Seller chooses not to correct-the defects, or if Seller fails to respond within the time given,- Buyer will, within ~ days, either'
a. Accept the Property and the system and, if required by the lender, if any, and/or any governmental authority, cormct the defects
before settlement or within the time required by the lender, if any, and/or any governmental authority, at -Buyer's sole expense and
with Seller's permission, which will not be unreasonably withheld, and agree to the RELEASE set forth in paragraph 23 of tlus
Agreement. If Seller denies Buyer permission to correct the defects, Buyer may, within 5 days of Seller's denial, terntinate this
Agreement in writing, in which case all deposit monies paid OIl account of purchase p.rice will be returned promptly to Buyer and
this Agreement ..vill be VOID, OR
b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price \'iill be returned promptly
to Buyer and this Agreement will be VOID.
5. If the report reveals the need to expand orreplace the existing individual on-lot sewage disposal system, Seller may, within ---'-- dayt::
of receipt of the report, submit a corrective proposal tQ Buyer. The c.orrective proposal will include, but not be limited to, the name of the
remediation company; provisions for payment, including retests; and a projected corapletion date for corrective measures. \Vithin 5 days
of receiving Seller's corrective proposal, or ifnci corrective proposalis received within the time given, Buyer will:
a. Agree to the terms of the corrective proposal, if any, in writing. in which case Buyer accepts the Pwpetiy and agrees to the
RELEASE set forth in paragraph 23 of tllis Agreement, OR
b. Accept the Property and the system and, if required by the lender, if any, andlor any governmental authority, correct the defccl"
before settlement or witiIin the time required by the lender, if any, aneVor any governmental authority, at Buyer's sole expense al)d
with SeHer's permission, which will not be unreasonably withheld, and agree'to the RELEASE set forth in paragraph 23 of this
Agreement. If Seller denies B_uyer permission to correct the defects, Buyer may, within 5 days of Seller's demal, terrrUuate tbis
Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer and
this Agreement will be VOID, OR . .
c. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly
to Buyer and this Agreement will be VOID.
10, ENVIRONMENTALAUDlT & PROPERTY INSPECTIONS (1'98)
(A) Seller represents and warrants that Seller has no knowledge, except as listed below, of whether:
1. The Property has been contaminated by any substance in any manner which re-quires remediation;
2. The Propeti)' contains any wetlands, flood plains, or any other environmentally sensitive areas, development of which is limited or pre-
cluded by Ia\v;
3. The Property contains any substance, the removal or disposal of which is subject to any law or regulation;
4. Any law has been violated in the handling or disposing of any material waste or the discharge of any material into the sail, air, surface
water, or ground water;
5. The Property contains underground fuel or liquid storage tanks.
EXCEPTIONS:
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(B) Seller and Buyer acknowledge that Broker:
1. Is a licensed real estate broker;
2. Is not an expert in const.ructlon, engineering, Or en vllanmentai matters; and
3. Has not made and will not make any representations or warranties nor conduct investigations of the environmental condition or suita-
bility of the Property, or any adjacent property.
(C) ENVIRONMENTAL AUDITIINSPECTION CONTINGENCY
Ikr WAIVED. Buyer understands that Buyer has the option to request audits and inspections of the Property. BUYER WAIVES THIS OPTION
and agrees to the RELEASE set forth in paragraph 23 of this Agreement. Buyer reserves tlle right to make a pre-settlement inspection of the
Property.
o ELECTED. %thin _ days of the execotlon of this AgTeement, Buyer bas \be option, at Buyer's expense, to have the following audits
or inspections completed by a licensed or otherwise qualified professional (check the 'inspections that Buyer will order):
o Environmental Hazards
o Urtdergrouno Storage Tanks
o Property BQundaryfSquare Footage VerificatiowDelineation
o flood Plain"VerificatioruDelineation
o Wetlands Verification!De1ineation
o Specific Property Inspection limited to
o
If Buyer is not satisfied with any condition as stated in any written report Buyer receives pursuant to the audits or inspections obtained under
this provision, Buyer will, within the time allotted for obtaining such audits or inspections:
1. Accept the Property with tbe information stated in the report(s) and agree to the RELEASE set forth in paragraph 23 of this Agreement,
OR
2. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price Will~d, . tly.,o
~r::...melltwill be VOID. .
Buyer Initia~AJS~ VL Page 3 of 6 Seller Initials: '
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.^ ''-' ^L.......'-"W '-"- .r>.L.J,-,'<~c.J'_HY~.I~'<V "U-VL/
(A) Seller represents as of Seller's execl- ofrhis Agreemel~t, that uo public imprQverr.ent and/or ,eo,;vner association assessments llaVcbeen
made against tbe Property which ren,___, unpaid and that no notice by any government or j:JUbl. .1th?nty h~s been sex~'ed upo~ SeHer 01 any-
c'nc on Seller's behalf. including notices relating LO violations of zoning, housing, building, safety or fu.e ordmance.s which rel11alTl unc?rrected,
and that Seller knows of no condition that would constitute violation of any such ordinances which remain uncorrected. unless othef\'/lse spec-
ified here:
(B) SeHer knows of no other potential notices (including violations) and assessments except as follows: -
357
(C) In the event any notic~s (including violations) and assessments are received after execution of this Agreement and before settlement, Seller will
notify Buyer in writing, within 5 days of receiving the notice or assessment, that SeHer will:
L Comply with notices and assessments at Seller's expense, in which case Buyer accepts the Property and agrees to the RELEASE-set forth
in paragraph 23 of this Agreement, OR
NOT comply with notices and assess,ments at Seller's expense.
If Seller chooses not to comply with notices and assessments, or fails within the time given to notify Buyer if SeHer will comply. Buyer will
notify Seller within 5 days in writing that Buyer "vm:
a. Comply with the notices and asse.ssments at Buyer's e::zpense and agree to the RELEASE set.forth in paragraph 23 of this Agreement,
OR
b. Terminate this Agreement, in which case all deposit monies paid on acco'.lrIt of purchase price win be returned promptly to Buyer
and this Agreement will be VOID.
If Buyer fails to notify Seller within the time given, Buyer accepts the Properly and agrees to the RELEASE set fortldn
paragraph 23 of this Agreement
(D) Buyer is advised that access to a public road may require issuance of a highway occupancy permit from the Pennsylvania Depaitment of
Transportation.
12. TITLE, SURVEYS, & COSTS (6-02)
(A) The Property is to be conveyed free and clear of an liens, encumbrances, and easements, EXCEPTING HOWEVER the following: e;;.isti.ng .
deed restrictions, historic preservatlGn restrictions or ordinances, building restrictions, ordinances, easei:nents of roads, easements visible upon
the ground, easements of record, privileges or rights of public service companies, if any;othenvise the title to the above described real estate
win be good and marketable and such as will be insured by a reputable Title Insurance Company at the regular rates.
(B) Buy:r will. pay for th~ fo.Bowing: (If Title sea'Cch, title insurance andio! mechanics lien insurance or fee for cancellation of same, if any;
(2) Flood :nsurance, fIre Insurance. \vIth e~tended coverage, mine subsidence insurance, and cancellation fees, if any; (3) Appraisal fees and.
charges pard III advance to lender, If any; (4) Buyer's customary settlement costs and accruals.
(C) Any sun'e~ o.r surveys 'vhich may be required .by the Title Insurance Company or the abstracting attorney for the preparation of au adequate
.legal descrIptIoo of the Property (or the correction thereof), will be secured and paid for by Seller. However, any surveyor surveys desired by
Burer or required by lender ,vill be secured and paid for by-Buyer. . .
(D) . In the e.vent ~el1er is unable to give a good and marketable title and such as will be insured by a reputable Title Company. at the regular rates,
as speC1fi~d III par:agraph 12.(A), ~uyer will have the option of: (1) taking such title as Selle.r can give \vith no change to the purchase price;
. or (2) bemg repa~d all rr::omes pmd by Buyer to SeHer on account of !.be purchase price. and being reimbursed by Seller for any costs"incurred
?y Buyer for any U1~peCt10ns.or certificatio?s obtained according to tbe terms of theAgreement;.those items specified in paragraph 12(C) and
III paragraph 12(B) ttems (1), (2), (3); and In the latter event there will be no further liability or obligation on either of the parties hereto and
this Agreement will become VOID.
13. ZONING CLASSIFICATION (1-98) .
(A) Failure of this Agreement toco~tain the zoning classification (except in cases where tlle property {and each parcel thereof, if subdividable) is
zoned solely or primarily,to permit single-family dwellings) shall render this Agreement voidable at the option of the Buyer, and, if voided,
any deposits tendered by Buyer shall be. returned to the Buyer without any requirement for court action.
Zoning Classification RES I () F J\J T' /,{L"
(B) ZONING APPROVAL CONTINGENCY S' - - 04 ~D -. . M
o NOT APPLICABLE l:C f""" t::^,>OIJ, !
o ~VAIVED. Buyer acknowledges that Buyer has the option to make this Agreement contingent 00 receiving municipal approval for the
mtended use of the Property. BUYER WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 23 of this Agreement
o ELECTED
L This sale is contingent on Buyer receiving zoning approval, or variance, or special exception from
(mu~ci~ality) to use the Property as a .. (proposed use).
ApplicatIon for the approval (or variance/special exception) will be made withirl__ days of the execution of this Agreement Buyer
will pay for applications, legal representation, and any other costs associated with obtaining approval.
If the municipality requires the application to be signed by the current owner, Seller agrees to do SQ.
If final, unappealable approval is Dot obtained by
which case all deposit monies paid on account of purchase price will be returned FfOmptly to Buyer.
14. LAND USE RESTRICTIONS OTHER THAN ZONING (7-01)
(A) 0 None Known
(B) 0 The Property, or a pmtiGl1 of it, is preferentially assessed for tax purposes under the follo,ving Acts (See Land Use Restriclioll-S Notices):
o Farmland and Forest Land Assessment Act (Clean and Green Program)
o Open Space Act (an Act enabling certain counties of the Commonwealth to covenant with land owners for preservation. of land in
farm, forest, water stipply, or open space tlses)
o Agricultural.Area Security Law (DevelDpment Rights)
o Other
o Buyer and Seller have determined the conseqnences tl1at may result from the sale or a change in the use of the Property, or any portion of
it
(C) ]ij'" Seller has no knowledge of any covenants, subdivision restrictions or other restrictions affecting the Property unless otherwise stated here:
J PII)F.LJ KJi!! p"i"l?n';;^->0
CD) 0 Seller has no knowledge of any rights to timber, crops or mineraLs, except coal, that do not transfer with the Property unless otherwise
stated here:
(E) 0 Buyer acknowledges that any land use restrictions associated with the Property's enrollment in the Clean and Green Program or under
the Open Space Act or any other program identified in this paragraph 14, are e.ncumbrances upon the Property. Buyer agrees that deliv~
eryof title subject to these encumbrances will not violate Seller's duty under paragraph l2(A) of this Agreement.
15. COAL NOTICE
~ NOT APPLICABLE
o ,I\PPUCABLE
Tffis DOClJ!\1ENl MAY NOT SELL, COt-,'VEY, TRANSFER, lNCLUl)E OR INSURE THE Tl1LE TO HiE COAL AND RIGHTS OF SUPPORT UNDERNEATH TilE SURFACE LAND
DESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNERS OF SUCH COAL MAY HAVE THE COl'vfPLE1E LEGAL RIGfIT TO REMOVE ALL SUCH COAL AND
IN W..AT CONNECTION, DM1AGE MAY RESULT TO THE SURFACE OF THE LAND AND ANY HOUSE, BUILDING OR OTHER STRUCTURE ON OR IN SUCH LAND. (This
notice is set forth in the manner provided in Section 1 of the Act of July 17, 1957, P.L 984.) "Buyer acknowledges that he may not be obtaining the
right of protection against subsidence resulting from coaIll11ning operations, and that the property described herein may be protected from damage
due to mine subsidence by ::l private contract with the owners of the econonric interests in the coal. This acknowledgment is made for the purpose
of complying with the provisions of Section 14 of the Bituminous Mine Subsidence and the Land Conservation Act of April 27 , 1966." Buyer agrees
to sign the deed from Seller which deed will contain the aforesaid provision.
16, POSSESSION (7-01)
(A) Possession is to be delivered by deed, keys and:
1. Physical possession to vacant Property free of debris, with all structures broorn~cleru:l, at day and time ~f settleme~t, Al',,'T)/OR
2. Assignment of existing lease(s), together witlI any secwity deposits and interest, at tIme of settlement, If Property IS leased at the execu-
tion of this Agreement or unless otherwise specified herein. Buyer will acknowledge e.xisting lease(s) by initialing said lease(s) at time 'Of
execution of this Agreement . .
(B) Seller will not euter into any new leases, written extension of existing leases, if any, or aclditiona11eases for the Property WIthout the wnUen
consent of Buyer. >
17. RECORDlNG {3-85) This Agreement will not be recorded in the OffIce for the Recording of Deeds or in any othe~ office or place of pubhc
record, and if Buyer causes or permits this Agreement to be recorded, Seller may elect to treat such act as a breach of thrs Agreem:nt.
18. ASSIGNMENT (3~85) This Agreement ';vill be binding upon the parties, their respective heirs, personal representatives: guardrans and succ:s~
sors, and to the e;;.tent ass~gnable, on the asSIgns of the parnes hereto, It bemg expressly understood, however, that Buver wIll not transfer or assign
tius Agreement WIt aut t ' consent of Seller , , ~ ~
Buyer mtials: AIS-VL Page 4 of 6 Seller Im"a1s~ CJ1 )
354
355
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357
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3.
4.
, this Agreement \vill be VOID, m
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342
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352
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19, DEPOS1T&lillCOVERYFUND{6-02) ,... 'f t
. (A) Deposits paid by Buyer wil.hin 30 da) settlement will be by cash,.:ashier:~ o~ ccmfied chcc ~pO.Slts, ~eg'Mdless of \~e fO~ 0< ~ayme:l
and the person designated as payee will De paid in U.S, Dollars, and \vill be pard to ~roke[ or P,art)' l,dent1f1ed l~ paragraph 3m), ,,1'.0 ~111 re\m~
the.In in an escrow account until consummation or termination of this Agreement In cOnfOIDllty wIth aU applicable laws and rcgula\.1oTls. An)
uncash.ed cbeck tendered as deposit may be held pendi1lg the acceptance of this offer. .' . .
(B) Upon termination of this Agreement, the Broker holding the deposit monies will release the depOSIt montes ui accordance with the terms \)f a
fulJy executed wfltlen agreement between Buyer and Seller. . .' ' .
(C) In the event of a dis.pute over entitlement to depositmoIlies, a broker bolding the depOSlt-lS requued by the Rules and Regl1latl?~lS ~f the Stale
Real Estate Commission (49 Pa. Code {j35.327) to retain the monies in escrow until the dispute is resolved. In the event of htlgal10n for the
return of deposit monies, a broker will distribute t11C monies as directed by a final prder of court or the written Agreement of the parties. Buyer
and Seller agree that, in the event any broker or affiliated licensee is joined inlitigation for the refurn of deposit monies, the attorneys' fees and
costs of the broker(s) and licensee(s) will be paid by the party joining them.
(D) A Real Estate Recovery Fund exists to reimburse any persons who have obtained a fjnal civil judgment against a Pennsylvania real estat2
licensee owing to fraud, misrepresentation, or deceit in a real estate transaction and who have been unable to collect the judgment after exl1aust-
ing all legal and equitable remedies, For complete details about the Fund, call (717) 783~3658, or 1-800-882-2113 (within Pennsylvania) and
(717) 783-4854 (outside Pennsylvania).
20, PLANNED COMMUNITY (HOMEOWNER ASSOCIATION) NOTICE FOR PURPOSES OF RESALE ONLY (7-01)
J::!Ic NOT APPLICABLE
o APPLICABLE
(A) 13uyer acknowledges that the Property is part of a planned community as defined by the Unifonn Planned Conununity Act. (See Definition of
Planned Community Notice for the definition contained in the Act.)
(B) s5407(a) of the Act requires SeHer to furnish Buyer with a copy of the DecIaralion (other than plats and plans), th,;,- byla'\vs, the rules 'and reg-
ulations of the association, and a Certificate containing the proVisions set forth in 95407(a) of the Act.
(C) Within _ days of the execution of this Agreement, Seller will submit a request to the associatiOll for a Certificate and the documents
necessary to enable Seller to comply with the Act. The Act provides that the association is required to pro"'ide these documents within 10 nays
of Seller's request.
(D) Under the Act, Seller is not liable to Buyer for the failure or delay of the association to provide the Certificate in a timely manner, nor is Seller
liable to Buyer for any erroneous infonnation provided by the Association and includd in the Certificale.
(E) Buyer may declare the Agreement VOID at any time before Buyer's receipt of the association documents and for 5 days thereafter, OR until
settlement, whichever occurs rust. Buyer's notice declaring the Agreement void mUGt be in writing; thereafter all deposit monies will be
returned to Buyer
(F) In the event the association has the right to buy tile Property (right of fust refusal), and. the. association exercises that right, Scller will reim-
burse Buyer for all monies paid by Buyer on account of purchase price and for any costs incurred by Buyer for: (1) Title search, title insur-
ance andlor mechanics lien insurance or fee for cancellation of same; if any; (2) Flood insurance, fire. insurance willi extended coverage, mine
subsidence insurance, and cancellation fees, if any; (3) Appraisal fees and charges paid in advance to lender, if any; (4) Buyer's customary
settlement costs and accruals,
21. MAINTENANCE & RISK OF LOSS (6-02)
(A) Seller will maintain the Property, grounds, fixtures, and any personal property specifically schcduled herein in its present condition, normal
\vear and tear excepted,
(B) In the event any system or appliance included in tbe sale of the Property fails and Seller does not repair or replace the item, Seller will promptly
notify Buyer in writing of Seller's choice to:
1, Repair or replace the failed system Of appliance before settlemel1t, or credit Buyer a;': settlement for the fair market value of the failed sys-
tem or appliance (this oplion must be acceptable to the lender, if any). In each case, Buyer accepts the Property and agrees to the
RELEASE set forth in paragraph 23 of this Agreement, OR
2, Not repair or replace the failed system or appliance and nQt credit Buyer at settlement for the fair market value of the [ailed system or
appliance. If SeDer does not repair, replace or offer a credit for the failed system or appliance, Buyer will notify Seller in writing within
5 days or before settlement, whichever is sooner, that Buyer will:
a, Accept the Property and agree to the RELEASE set forth in paragraph 23 of this Agreement, OR
b, Terminate this Agreement, in which case aU dcposit monies paid on account of purchase price \\'ill be returned promptly to Buyer
and this Agreement will be VOID.
(C) Seller win bear risk of loss from fire or other casuailies until time of settlement: In the event of damage by fIre or other casualties to any prop-
erty included in this sale that is nottepaired or replaced prior to settlement, Buyer will have the optton of rescinding this Agreement and
promptly receiving all monies paid on account of purchase price or of accepting the Property in ils then condition together with the p-roceeds
of any insurance recovery obtainable by Seller. Buyer is hereby notified that Buyer may insure Buyer's equitable interest in this Property as of
the time of execution of this Agreement.
22, WAIVER OF CONTINGENCIES (1-O0)
In the event this Agreement is contingent on Buyer's right to inspect alldJor repair the Property, Buyer's failure to exercise any of Buyer's options
.within the time limits specified in the contingency provision(s) Hill constitute a \VAfVER of that contingency and Buyer acc.epts the
Property and agrees to the RELEASE set forth in paragraph 23 of this Agreement.
23. RELEA&'E (1 ~OO) Buyer hereby releases, quit claims 3nd forever discharges SELLER, ALL BROKERS, their LICENSEES, EMPLOY.
RES, and any OFFICER or PARTNER of anyone of them and any other PERSON, FIRJ\.tI, or CORPORATION who may be liable by or
through Ulem, from all.}' and all claims, losses or demands, including, but not limited to, personal injuries and property damage and all of
the consequences thereof, 'whether now known or not, which may arise from the presence of environmental hazm'ds, an}' deficiencies in the
on.site water service system, or any defects or conditions on the Property. This release will survive setllemenL
24, REPRESENTATIONS (1-00)
(A) Buyer understands that any representations, claims, advertising, promotional activities, brochures or plans of any kind made by Seller, Brokers,
their licensees, employees, officers, or p311ners are not a part of this Agreement, unless expressly incorporated or stated in this Agreement. It
is further understood that this Agreement contains the Vihole agreement between Seller and Buyer and there are no other terms, obligations,
covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever coucemil1g this sale. Furthermore, this
Agreement will not be altered, amended, changed, or modified except in writing executed by the parties.'
(B) It is understood that Buyer has inspected the Property before signing this Agreement (induding fixtures and any personal propert}'
specifically scheduled herein), or has waived the right to do so, and has agreed to purchase it in its present condition unless othen,,-ise
stated in tltis Agreement. Buyer acknowledges that Brokers, tlIeir licensees, employees, officers, or partners have not made an
independent examination or determination of the structural soundness of the Property, the age or condition of the cQmponenls, envi-
ronmental conditions, the permitted uses, or of conditions existing in the locale where the Property is situated; nor have they made a
mechanical inspection of any of the systems con13illed therein.
(e) Broker(s) may perfonn services to assist umepresented parties in complying with the terms of this Agreement.
(D) The headings, captions, and line numbers in this Agreement are meant only to make it easier to fInd the paragraphs_
25, DEFAULT (6-02)
(A) Seller has tbe option of tetaiillng all sums paid by Buyer, including the deposit monies, should Buyer:
1. Fail to make any additional payments as specified in paragraph 3; OR
2, Furnish false or incomplete information to SeDer, Broker(s), or the lender:, if any, concerning Buyer's legal or financial status, or fail to
cooperate in the processing of the financing application, which acts would result in the failure to obtain the approval of a financing com-
mitment~ OR
3. Violate or fail to fulfill and perform any other temlS or conditions of this Agreement.
(B) Unless otherwise checked in paragraph 25 (C), Seller may elect to retain those sums paid by Buyer, including deposit monies, in one of tbe
following mannerS:
1. On account ofpu.rchase price; OR
2. As monies to be applied to Seller's damages; OR
3. As liquidated damages for slJch breach.
(C) ~ Seller is limited to retaining sums paid by Buyer, including deposit monies, as liquidated damages. ,
(D) If Seller retains aU sums paid by Buyer, including deposit monies, as liquidated damages pursuant to paragraph 25 (B) or (C), Buyer and Seller
will be released from further liability or obligation and thi.s Agreement will be VOID.
,
,
'31"1]
35t
3G2
36'
364
305
36'
367
368
369
37D
371
372
373
37'
375
376
377
376
379
38Q
361
"2
3B3
384
335
386
387
3G8
389
3
3
31
31
31
JI
3~O
3l
3f
J[
38
38
39
:if)
3S
36
39.
30'
39f
39',
391
392
393
3"
395
39'
397
39(1
3S9
,ao
'"
'02
403
404
'05
'06
407
,as
409
4'10
411
412
413
41'
415
416
417
'18
419
2,9l
3%
40[
4G1
4[)~
l\03
404
405
406
407
408
409
410
411
412
413
42{1
414
115
416
411
418-
419
420
421
422
423
421
422
423
424
425
426
427
4"
429
430
431
424
<:125
-116
427
m
429
'"
433
4"
435
'36
437
'"
43'
410
441
442
443
'41
445
445
447
41B
449
450
451
452
453
454
'55
456
457
430
431
4:"\2
433
414
4:15
Buyer Initi;;: r
AlS- VL Page 5 of 6
~~
Seller Initials:/..# ~
4J6
437
438
439
44()
4111
442
443
441
445
l\~6
441
41113
449
41)0
461
452
453
454
455
456
459
~6\l
461
'"
'63
464
465
466
467
46'
459
470
47i
472
473
474
475
476
477
27,.
______~_~_, \. ~"J
. D NOT AVAILABLE
'. 0 WAlVED. Buyer and Sener understa,_~ that they may choose to mediate at a later date, shaUl.
ligation on the pm of any party to do $0.
D ELECTED , . . di" d v.d lhe
(A) Buyer and Seller will try to resolve any dispute or ,claim that may anse fromthls Agreement tluough me alJon, In aCC?f .ance \ t 1
Rules and Procedures of the Home SellecslHome Buyers Dispute Resolution System. Any agreement reached through <l. mediatiOI1 conferenpe
aod. signed by the parties wtll be binding. ,_ . -
(B) Buye.r and Seller ackno\vledge that !hey have received, read, and understand the Rules and Procedures of the HomeSellerslHome Buyers
Dispute Resolution System. (See Mediation Notice.)
(C) This agreement to mediate disputes arising from this Agreement wlU survive settlement.
SPECLoI.LCLAUSES (1-02)
(A) The follm-Ying are part of this Agreement if checked:
o Sale & Settlement of Other Property'
Contingency Addendum (PAR Form SSP)
o Sale & Settlement of Other Property Contingency
with Right to Continue Marketing Addendl.Hll.
(PAR Foem SSP-CM)
Jispute arise, but that there will be no ob-
Settlement of Other Property Contingency Addendum (PAR Form SOP)
Tenant~Occupied Property Addendum (PAR Form TOP)
o
o
o
o
i?"
A'(),)",".IO,)M
(B)
'"
479
'"
'"
482
'"
484 Buyer and SeHer acknowledge receiving a copy of this Agreement at the time of signing.
485
485 NOTICE TO PARTIES: WHEN SIGNED, TillS AGREEMENT IS A BINDING CONTRo\.CT. Return by facsimile lransmissiOiJ (FAX) of this
'~137 Agreement, and all addenda, bearing the signatures of all parties, constitutes acceptance of this Agreement. Parties to this transaction are advised
488 to consult an attorney before signing if they desire legal ad"ice.
489
."
o
o
o
o
Buyer has received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code 935.336,
Buyer has received a statement of Buyer's estimated closing costs befon~. signing this Agreement.
Buyer has read and understands {he notices and e:;;i.plan-atory information set forlhin this Agreement.
Buyer has receiyed tbe Deposit l\.foney Notice (fol:" cooperative sales when Broker for Seller is holding deposit money) before-signing this
Agreement.
"
4g.1
'"
'"
495
496 BUYER'S MAILING ADDRESS:
"
"
"
492
4S
49
491
49' BUYER'S CONTACT NUMBER(S);
499
50G WITNESS
501
502
503 WITNESS
!:iD4
505
506 WITNESS
49
DATE e:;j /DIce;:
.
"
491
BUY~~ -
SS#
49~
51)C
SOl
BUYER
SS#
DATE
502
BUYER
SS#
DATE
503
50'
505
507
505
5De
509
5iO
511
Seller hereby 8-pproves the above contract this (date)
And in consideration of the services rendered in procuring the Buyer, Seller agrees to pay the named Broker for Seller a fee of
of/from the herein specified sale price. In the event Buyer defaults herelmder, any~onies paid on account will be divided
SeDer, . 'Broker for Seller, but in no event will the sum paid to the Broker for Seiler be in excess of the above specified Broker's fee.
C1
50'
50s
509
510
5il
512
512
51;
514 ')r Seller has received the Consmner Notice as adopted by the State Real Estate Convl~ssion at 49 Pa. ,Code S35.336.
515 ~ SelI~r has received a.statement of Seller's estimated dosing {:()sts before signing this Agreement.
516 ~ Seller has read and understands the notices and explanatory infonn:jtionset,forth in this Agreement..
513
519
520 SELLER'S CONTACTNUMBER(S):
514
515
5f6
517
5j!
517
51B SELLER'S MAILING ADDRESS:
SELLER
SS#
DATE ~;;;:116 ..
' ~!/O o/t
ATE 'I
519
520
521
5"
522 'WITNESS
523
5?~
525 \VITNESS
526
527
522
523
524
525
WITNESS
~~;LERe:~~
DATE 5/16/0/
SllO\U-t
5'26
BROKER FOR SELLER (Company Name)
ACCEPTED UY
S27
52E
529
530
531
532
52E
529
530
531
53Z
533
534
535
53' BROKER FOR BUYER (Company Name)
m ACCEPTED BY
The undersigned 0 Broker for Seller 0 Broker for BuyeJ" agree to submit to mediation in accordance with paragraph 26 of this Agreement.
DATE
533
DATE
53'
635
536
537
i3il
AIS- VL Page 6 of 6
SELLER'S COPY
533
~yh; h rr E
"
,
LEGAL DESCRIPTION
LANDS OF MONGELLI TO BECOME LOT 1
MONROE TOWN$.!lIP, CUMBERLAND COUNTY
BEGINNING at the southwest comer of Lot 14 of the Final Subdivision Plan for Trindle Station
as recorded in Plan Book 90 page 29 of the public records of Cwnberland County, P A, said point
being located on the northern property lin~ of lands now or formerly belonging to Samuel R, and
Laura A. Neely; thence along the northern property line of lands now or formerly belonging to
Samuel R. and Laura A. Neely and lands nOW or formerly belonging to E. Donald and Donna K,
Miller South 72 degrees 15 minutes 00 ~econds West a distance of 1582,06 feet to a point on the
eastern right-of-way line of Sinclair Road as dedicated per the aforesaid Final Subdivision Plan
for Trindle Station; thence along the eastern right-of-way of Sinclair Road the following four (4)
courses:
1. Curve to the right having a radius of58936 feet, an arc length of223,70 feet, a chord
bearing of North 29 degrees 41 minutes 22 seconds West and a chord length of222,36
feet,
2, North 20 degrees 43 minutes 45 seconds West a distance of 684.81 feet,
3, North 17 degrees 22 minutes 29 seconds West a distance of 28136 feet,
4, Curve to the left having a radius of 448.16 feet, an arc length of 111.49 feet, a chord
bearing of North 26 degrees 14 minutes 53 seconds West and a chord length of 11 1.20
feet;
Thence along the southern property line of proposed Lot 2 of the Final Subdivision Plan for
Mongelli and Stone Tracts as prepared py Alpha Consulting Engineers North 73 degrees 01
minutes 53 seconds East a distance of379,09 feet; thence continuing along Lot 2 North 11
degrees 34 minutes 14 seconds East a distance of317.29 feet; thence along the same North 46
degrees 07 minutes 10 seconds West a clistance of 780,53 feet to a point on the southern property
line of lands now or formerly belonging to Rodger M, and Doris E. Jumper; thence along the
southern property line of lands now or formerly belonging to Rodger M, and Doris E. Jumper
South 88 degrees 12 minutes 25 seconcls East a distance of 134,79 feet; thence continuing along
lands now or formerly belonging to Rodger M, and Doris E. Jwnper and along the southern
boundary of the Wertz Development South 73 degrees 27 minutes 25 seconds East a distance of
1555,76 feet; thence along the western property line oflands now or formerly belonging to Dale
E, and Patricia M, Elicker and along the western property line of lands now or fOlmerly
belonging to Kenneth L Stone South 13 degrees 47 minutes 02 seconds East a distance of238,86
feet; thence continuing along lands now or formerly belonging to Kenneth L Stone North 73
degrees 06 minutes 56 seconds East a distance of201.09 feet; thence along the same North 63
degrees 43 minutes 21 seconds East a clistance of 197,95 feet to the northwest comer of the
municipal boundary of Monroe Township and Upper Allen Township, said point also being the
northwest comer of the aforesaid Final Subdivision Plan for Trindle Station; thence along the
municipal boundary of Momoe Township and Upper Allen Township being the western
boundary line of the aforesaid Final Subdivision Plan for Trindle Station South 03 degrees 46
minutes 49 seconds East a distance of 1151.4 7 feet to the point of begimling,
Containing 2,775,825 square feet or 63,72 acres,
Y :103\230500, aph 1230500ldocumentslPHASE IIISUSDI\I\S USO IV .LD T1 A. doc
LEGAL DESCRIPTION
LOT 2 OF TRINDLE STATION PHASE II
MONROE TOWNSHW, CUMBERLAND COUNTY
BEGINNING at the southwest property comer of lands now or formerly belonging to Rodger M.
and Doris E. Jumper; thence along the southern property line oflands now or formerly belonging
to Rodger M, and Doris E. Jumper South 88 degrees 12 minutes 25 seconds East a distance of
55.21 feet; thence along the western prqperty line of proposed Lot I of the Final Subdivision
Plan for Mongelli and Stone Tracts as prepared by Alpha Consulting Engineers South 46 degrees
07 minutes 10 seconds East a distance of780.53 feet; thence continuing along proposed Lot I of
the aforesaid Final Subdivision Plan for Mongelli and Stone Tracts South II degrees 34 minutes
14 seconds West a distance of 317.29 feet; thence along the same South 73 degrees 0 I minutes
53 seconds West a distance of 379.09 feet to a point on the eastern right-of-way line of Sinclair
Road as dedicated per the Final Subdivision Plan for Trindle Station as recorded in Plan Book 90
page 29 of the public records of Cumberland County, P A; thence along the eastern right-of-way
of Sinclair Road the following five (5) courses:
1. Curve to the left having a radius of 448,16 feet, an arc length of 76,06 feet, a chord
bearing of North 38 degrees 14 minutes 14 seconds West and a chord length of75,97
feet,
2, North 41 degrees 01 minutes 20 seconds West a distance of 179,02 feet,
3, Curve to the right having a radius of291.83 feet, an arc length of223,02 feet, a chord
bearing of North 24 degrees 46 nlinutes 39 seconds West and a chord length of217,63
feet,
4. North 08 degrees 00 minutes 07 seconds West a distance of 48,60 feet,
5, North 07 degrees 19 minutes 20 seconds West a distance of338,78 feet;
Thence along the eastern property line oflands now or fonnerly belonging to BP America, rnc,
North 31 degrees 17 minutes 35 seconds East a distance of219,73 feet to the point of beginning,
Containing 435,593 square feet or ]0,00 acres,
Y:I03\230500 aph \230500ldocumentslPHASE IllS U B[)I\ASUBO IV .LOT2 ,doc
~
G- ,:~Ih 1+ L
ADDENDUM TO AGREEMENT OF SALE
TIllS ADDENDUM ("Addendum") is made this /OfTctay of ~ 2004, by and
between JOHN T, MONGELLI and GWENETH D. MONGELLI, his wife, and DEREK
MONGELLI and DENISE MONGELLI, his wife ("Seller"); and FRANK TAMANlNI, an adult
individual ("Buyer"). This Addendum shall be attached to and made a part of the Agreement of Sale
dated e::; J I 01 ~ 2004 ("Agreement"),
The Agreement is conditioned and contingent upon the following terms and conditions:
1. Seller Financing: Seller shall finance eighty-seven and one-halfpercent (87.5%) ofllie
Purchase Price of the Property or One Million Seven Hundred Fifty Thousand Dollars
($1,750,000.00) ("Seller Financing"). Seller Financing shall be evidenced by a note secured by a
mortgage, which mortgage shall, at all times, be subordinate to any infrastructure or development
financing secured by Buyer. The note shall provide, inter alia, for repayment of the Seller Financing
upon the sale and closing of residential building lots subdivided or to be subdivided within the
Property in the following amounts:
( a) Seventeen Thousand Five Hundred Dollars ($17,500,00) upon the sale
and closing of each of eighty (80) single-family residential Jots; and
(b) Eight Thousand Seven Hundred Fifty Dollars ($8,750,00) upon the
sale and closing of each of forty (40) townhouse residential lots.
2, Due Diligence: Buyer will have thirty (30) days after Buyer's receipt of a fully
executed copy of this Addendum and the Agreement to perform Due Diligence on the Property, If the
Buyer does not find the Property suitable, Buyer shall have the right, with or without reason, to
terminate the Agreement and this Addendum within the 3 O-day period, In the event Buyer tennmates
the Agreement and this Addendum, the Deposit shall be refunded to Buyer, the Agreement and this
Addendum shall be null and void, and Seller and Buyer shall have no further obligation one to the
other.
3. Buyers Condition Precedent: Buyer's obligation to perform the terms and conditions
set forth in the Agreement and this Addendum and conclude the transaction contemplated by the
Agreement and this Addendum is specifically contingent npon Buyer's determination, in its sole and
absolute discretion, that the Project, hereinafter defined, is feasible for construction and development
on the Property,
For purposes of this paragraph, "Project" shall mean receipt by Buyer of all local, state and
federal permits and approvals, valid beyond any applicable appeal period, sewer authority approval
'and adequate sewer capacity for the lawful and permitted development and construction of a
minimum of one hundred twenty (120) residential lots (eighty (80) single-family and forty (40)
townhouse lots) as a permitted use on the Propelty as it is cwrently zoned in accordance with the
Zoning Ordinance of Monroe Township, Buyer agrees to obtain all approvals required by this
paragraph,
4. Municipal Approvals, Buyer will have six (6) months from the end of the Due
Diligence Period to secure all required permits and approvals for the Project to Buyer's satisfaction
and at Buyer's sole cost and expense ("Initial Approval Period"), If, at the expiration of the Initial~\
Approval Period, the approvals have not been secured, then Buyer will have up to two 6-month ~
extensions ("Extended Approval Periods") within which to secure all required,approvals and permi'~.\
-t~ I<,t ept"'slo....I""fw~...'f7 10ve -7hO".><<...:.:p (?~"'''''''.co-J
Buyer shall pay Five Thousand Dollars ($5,000,00) for eaeb- of the Extended Approval Periods ~ v .I.
which, if the transaction contemplated by the Agreement and this Addendum closes, shall be applied P1ifJ l
to the Purchase Price. Unless Seller and Buyer mutually agree to extend the time period set forth in
the Agreement and this Addendum, in the event Buyer fails to secure approvals and permits for the
Project at the expiration of the Approval Period or Extended Approval Periods, if applicable, and
Buyer notifies Seller of his intent not to proceed, the Deposit and all monies paid for any Extended
Approval Periods shall be forfeited to Seller, retained by Seller as its sole and exclusive remedy, and
the Agreement and tins Addendum shall be null and void and Seller and Buyer shall have no further
obligation one to the other.
5. Closing: Closing shall occur within thirty (30) days after receipt of all unappealable
approvals and permits for the Project and recording of the final subdivision plan for the Project.
IN WITNESS WHEREOF, the parties have herennto set their hands and seals the day and
year first above written intending to be legally bound hereby,
WITNESS:
SELLER:
~~/'~ 5(~[Pef
~{f'R.td A'/iwf#ILL 'tfO!o~
.' eneth D. Mongelli Date
~~4)
erek Mongelli
~f<1
~Jl':'-" ,:A, Nrm%^l:,
Denise Mongelli ~
c; LWDY
Date
BUYER:
~
4/~/
Date
3
ExA;/o;f ])
-
ADDENDUM TO AGREEMENT OF SALE
This agreement made this /O~y of ~ 2004, by and ?etween John T, and
Gweneth D. Mongelli and Derek and Demse Mongelli herem after known as
Sellers, and Frank Tamanini herein after known as Buyer, both as regards to the
property known as 5"rsmelftir;Rtr.rd~ Mechanicsburg, P A This addendum shall be
attached to and made a part of the Agreement of Sale dated 51)'O/~t
Buyer and Sellers agree:
1. TIlls Agreement of Sale is contingent upon the Settlement of Seller's property at
608 Williams Grove Rd, (including lots with rental houses) which is under
Agreement of Sale Witll Buyer and scheduled to close on or before July 23,2004,
2. The Property to be conveyed at settlement excludes the Fannhouse, Barn, Pond
and Springhouse on approximately 4 Acres, Sellers and Buyer to set flags at agreed
location. Exact dimensions to be detetmined by survey at Buyers expense.
3, Buyer to give Sellers a public water and sewer easement to the Farmhouse,
4, The Sellers have tlle right to purchase one lot of their choosing at 75 % of the
published price of the lot Sellers could also deduct the $17,500,00 due from the
Buyer under this agreement
5, Buyer agrees not to allow sewer and/or water lines to extend outside of this site
unless and until project is substantially completed and Seller has been paid in fulL
6, Buyer to prepare Mortgage and Note paperwork to be mutually agreeable to
Buyer and Seller.
~ it ~#~~.b/r~
- :d - . at. ztl:;J (f(,{)~ :{.
~hn and Gweneth Mon li Date
~f~1"~--.hUr1I~' ~M[yt~A!:- sll%LI
Derek - emse Mongelli Date
~ - .o;//o/'-f-
Fr Tamanmi Date
witness
Exll0tt E
.s~~C~QNJ) l\~JD[:::'r~J)UI\A TO ~~(~8EJ;rlnt;l~T CiFJiALI;
THiS SECOND A.DDENDt}f\~ TO I'iGREErJJE!\lT OF' SALE (Secolld /\ddendurn) is
,!.y
made ihis
day of
2004 by and betvveen JOHf\J T. lVjOr,JC;EUJ
and GWEi\lETH [) MONGELLi, his wife, and DEREi< A. i\Jl0l\!GELLi and DEf\lI~;E A
!VlONGEU.!, his wife (Seller); an::; FRtJ\Jr~ T AMANII\JI, an adult individual (Buyer).
Bi\CKGROLJND
p" Buyer and Seller entered into an AgreS'fTlent of Sale for the salE and
purchase of ceriain property located in rVlonroe Tovvn3hip, Cumber)::;lnd Count\,!
Pennsylvania, commonly known ;;:lS 55 Sj;-Iciair F<oad, cOiilpr1Sinf;)
aCn.0E~ tnore or less
(Pro/Jerty) on !'/Jay 10, .2004 (Agreorn8nt).
B. SeHer' and Buyer fWrtc!rec! into an p.,ocJr.=-)ndum to Agreement of E:')C3lf:: C\r! IV\ay' 1 Cj
?Ou'~/! (Ar'r!e'Od!!'11)
._. j -; \' . ~,! ~_ ..1 1 ~.. L .
C. Selie! and Buyel- agreE::; to further arnend th(3 i\greernsrlt and /\cklencJurn
execution by this Second P.ddendLhll.
in consideration of the obliQations and undertakfngs set forth h(~n--3jn, intE~ndjn~i to be
le9al!~'{ bound hereby! Seller and E1u~!er agree as follows:
"I, The Background hen::inabove set forth in incorporated herein bY' reference
2 Buyer is developing Phase i of a development knovm CiS TnndlE' Station, c!
portion of which is located irnrnediately adjacent to property of Seller knO\Nn dS
G08 \i\ji)jianls Grove Road (\^JiI! iaITl:::; Grove Roc-3d Property). Buyer 3flrees to repair any
ciarnaQ8 and/or to restore and rern~~;' :!isle) 3t Bu~!ers sole cost and expense., (3nV cOrlcHtlon
vvherein and \Nhereby the 10\ll/e1"-18\/1:::1 drivevva)/ and garagp o-r the VVIlHarns l~rove F~oarJ
P('ope;-ty is d{~rnaged as 2 direct result of 8n increase in the vo!urn8 and VE~focjty of vl/Clter-
Doudno onto the V\lilliaiTls Grove HoaG Propertv rssultantf:T];fi r3uvers cx ~1UY(TS aqent~:,
, '- '.J - ~ ~
construction activities in Phase ~ of Trinc1!e Station,
3. Buyer 89ree~.~ to use best efioris ('i) to eiiminate SE~!k~~r c:\s siC:(nato:y or
s!gnatories to the Land Devoiopment Improvernent Agreerneni" t-equired by j\/jonroc,
Township in conjunction vvithrJlDnroe TO\A/nship=s approval of Ph8S2 ! of Trindle Station: 0:-
(2) to cause the Land Develop;l'ient Improvement Agreement to be amcnd?d to iilcorpoi3te
by' reff3i-ence provisions of the S'torn-rNa-tef Easernent Agreement eXc;cuted by and bet\iveen
Seller and Buyer on Septenlber ,) 0,2004, Notvvithstanc!lng S';:11!er=2. }\best efforts@; if clnd
in the event the L_3nd Developrnent lrnprovernent Agi..eernent cannot be E)rnendecJ in
c3c.cordance \l1Jith either (1) or (2) tlboV8, Se!!et- shaH, upon
f"equ8st of Buyer, execute
the Land DevE-;iopnle-nt lrnpr-overnent AQreefl1ent
4. Seller and 8u}!er a~J;.'t:~e thElt the Property shed! bF~ de,'ve)o,L1ed substantia j'~
aCCOCdClrlC8 v\tith the Phase jj Gon::;eptual Plan dated October 28, 2004, ci cap\, of vvr-"Ilci.l
h8S been provided by Buyer to
, the receipt of 'vVhich is 2cknovviedgeci
8(:;:1s:-_
!\!oiwithstandinq such chang, es as may be reouired bv !'Jionroe Townshio 8U'J/8!" aOf8OS
'- J ~ ,,-~-,
th2t the rnaxlmum density o-f resiclr:;,ntia! units on the Property Shcll1 be one hundred SIi1Y
(160) units 'vvith a proposed c1ensit:y' tllix of one hundred (100) single-f2rrnj)y homes and sixty
(SO) to\!VnllofTJes and/or duplex un'its.
5. Sellf,!" shall pmvide financing to Buyer in the amount set fonh in the
Addendum. .At settlernent on the sale and purchase of thE, Property, Buy(~r shalJ e>::ecutE~
thE; ~jhJrtgage Note anci MOrl9age and Security /\f]reenlentl copies of vv'hich ;::Jre attc:}chcd
hereto 8S Exhibits p~ and B respectively. Seller 3cl<:no\.Ivfedges re\ijev~f and approval or
E.xhibits A and B.
(3. In conjunct\on with the sale and pun:hc!SF} the PrcJpsiiy, Euyer and
a'tF8e that Seiler sh2l) retain tJ;;6 stonE': farOlhouse, spi-jnghDuse 8Tid Slone
(RiJjjc)jn~v)
ancl 3 lot 8re8 surrounding the Buildings of not !ess -th8n ten (10) c!cres (Sf:~lk~rs F<etained
Property). Seller vvi!l allovv up to five (5) acres to be designated as open space or
conS~-3rv8tjon 8aSerr\ent if requJred by f\l)onroe TO\}VflShip,
i. ,AJ settlement, S(:;ller srlcdi executE: 8 stCJi-rnwat\3r 2aSernGnt, \.rvhich cJocunlent
shall bE: prepared at E3U)/8rs 2>ole cost And expense,. e:3tablishing 3 S1.0nnwater e;:3semenT
on SelLsr:::os Retained Prooe(iv substantJalhl in the location as reflected on the CO:"lC8Dtuai
, ~. J -' - , -
rJlan dated October 28, 2004, ,t~,i! costs associsted with instariation; rncl\ntenance, repciir Ol~
restoration of the STOnYIVv8te, eas'2rn'3nt shall be borne sole!y by 2'LIYc:r
BUVE_:r
~~ckno\MledQes that no portion G;~ retention pond or ch.~iGntion pond E!SSOci2ted vv'ith the
storrn\rvaier tTldnaf:j8f1lent SYStE"31Ti PhasE-: n of Tr-indie St;::yj-ion She])) 8;;ter-ld ontc~
P ..1......'" :J'I p,.. ^~,
,\8Lcdl tLe . i Ope! cY,
8.
Buyer shall retain 2n en:;iineer
',i'c; c:.:,':::.~ "~("S~' ~r'~\ e'vr.~n-''::::-' h'lt '~r"I'J-::I;>
~,_ _.,,~) ,_, '-J,-,,- _ Q l-,-, J!'\r)----- JJ',~ ,-..~_ I k.1 '- ~I'\/
acceptable to E--JLwer and Seller to inf)pect and dOcU1Tisnt thc---o condition of Sellers Retained
Property prior to COrnrTJenCernent of any bl8stjn[1: jf any, in conjunction \i\.fitrl t"~re consti-uction
of jillprovements in Phase 11 of Trindle Station. Buy'er or any assiS:JneE:; or succe~~.so( in
interest to Buyer shall assume full liability for allY and 21! damage c~"3used to Selier=:-,c:;
Retained Property 'vvtlich Tllay result from orl)t dis'furbances, trenl0rs or \f)brations
associated witil bl8stinQ or demolition \j\jithin Phase Ii of Trindie Station
9. ,L\t settlement on the Property, -SeHer and Buyer shall execute Cl ri9ht of'first
refusal to Selier to purchase Lot 7 ;:lS !~eflected on the Conceptual Plan dated ()ctober 28.
2004, vvhich Lot 7 S11811 b,g reconfi~Jured to be 3 rninirnunl of one-half (2) acre. Lot"? sh81l
2-
be reconfigured to 31l0\fV Tor construction of a horn€: v'v'h()sE-~ fC:Jtprint c:31lcJ\icls -rex c) minirnurn
'vvidth of one huneJrecl feet (1001) and depth of eight~/ feet (Ben BUYt-:;i- shall LE,e best efforts
to causo L.ot 7 to be exempt from payrTll3nt of any association fees reiated to the
developrnE:;nt of Phase II of Trlndle Stetion 2S a p\anrled conirnun\ty vvhi\(~ Lot? is o\N:-)ed
by SeHer or Se:l1ers heirs. l~ot 7 shan not be exernpt frorn any. applicablo rL!!f~s and
(egu)ations established by 8 hCliTi80vvners association fc)r PI-lase Ii of Tr'indle Station. If
such 8xenlption can be accornplished, such exenlption shaH terminate upon th1:; scde or
tr:::lnsfer of the Jot to .8 third party \:Jr parties other than Sellers heirs.
i O. Buyer shall provide a copy of any conceptual pian or othe,- plan tn St::lier prior
to said plan or plans being presf!nted to f\~or!roG Tovvnship for approval Df P1E1S8 Ii
Tlinene Station. Se/lei- shall have five (5) business days to r8\/i8\1\1 said 1-JLJn or pians c~ncJ
provicJs \.,vriHen cornrnent to Buyer. in ihE'; event Selier does not pro,/!(Js \lvritten C(Jrnrn0n~ to
Buyer vviU-!jn tl18 tlnle period specified herein, Seliefs 12\112\\/ shall be considered a
80TYTiVal of the olan or IJlans
r Fl' .
'I ,) . Buyer shall select thfJ nanl8S uf the thl~ee (3) proposed ~~tfeets \;\'ithin Phase II
of Trindle Station. Seller shall havE;> tile right to repiacs three (3) street narnes vvith narnes
it may chouse. Sellers narne shall be reasonably' satisfactory to Buyer.
'12 /-\t Buyers sole expen~3eJ Buyer shall have Buyers title conlpany corrl:':,ct Hl8
deed for 608 \/VilllarnsGrove Roac! and cornplete the deed fo;' the Property so th3! the'
deed is correctly \.vordecJ to convey a t\jt!o~thjrds (2/3) interest to John f\/fongelli and C;v~ren
~Jionge!JiJ !lusf)and and VI/ifs, and b_ one-third el/3) interest to Derek f\i!oJ1Cjelli and DE-;rlISC
Mongelli, husband and wife
L'
"\ ()_ Seller shaJ1 cOOP~~;(3j:E: \NjUl Buyer ]n exe::uting any ancl ail cloCLwnents as
Buyer may i-easonabJy request to "further ths: cievs:opnlent of F'h2se 11 of Trinclif.; Stc.Jtlo(j ::is
substantiaUy set forth in the Conceptual ~Jian dated October 28, 20D.<~..
"14 To the extent the h:;rrns and conditions of Ii-'le Agreement] /\cldencJl.Irn and ii'lis
Second j\dd(.=:nc!um are inconsJstGnt the Second /-\cicJendunl shall controL
IN VViTNESS WHEREOF, the parties have her-eunto set their hands and seeds
day and year first above written.
\/\/JTNESS:
,/ ~__ (tJ '" L // ;/-:/ {{ ". (><;~i
". . -7.---.,----~,--'-._---.---..--,
--Detek A Monggilli -
!_/'
Denise A Mongelli
r-~:{~~4f~=C~':~"'~
Fr2:nk Tamanini
"
'J
~xhI01+ F
December 23,2005
Dear Frank:
Please allow this letter to serve as confirmation of our previous discussions concerning
the status of the agreement of sale for 55 Sinclair Road, dated May 10, 2004 and the addendums
thereto.
Our position remains that as of December 10, 2005, the agreement of sale expired,
because (I) settlement had not occurred and (2) because paragraph nine (9) ofthe second
addendum to the sales agreement calling for a plan with Lot 7 (subsequently renumbered as Lot
6) to be approved by Monroe Township containing no less than one-half (Y2) of an acre and of
appropriate dimensions to accommodat", the construction of a home with a width of I 00 feet and
a depth of eighty (80) feet. These matters collectively render this agreement null and void
pursuant to paragraph 25, subparagraph (A)(3), of the May 10, 2004 agreement of sale,
As of December 10, 2005, you have not obtained Land Development Approval from the
Township and the sketch plan approval for conditional use does not depict the required lot size
for the above-referenced lot, of which we are to have the right offust refusal. Therefore, as
of that date, based upon your failure to present us with an approved plan containing the lot as
required by paragraph nine (9) of the second addendum to the agreement of sale, our agreement
to sell you this property no longer exists,
In an attempt to be agreeable in this matter, we are willing to provide you with an
opportunity to negotiate a new agreement of sale, However, be advised that we feel that some of
the terms of our original agreement must be re-negotiated. We have enclosed a document
presenting the new terms to which we would be agreeable. This information was, we believe,
supplied to you via electronic mail on December 21, 2005,
Weare willing to discuss these terms and negotiate with you, however, the window of
opportunity to do so is not unlimited.
You have ten (10) days from the date of this letter to indicate your willingness to
negotiate a new agreement with us. Thereafter, we will consider this already expired agreement
to be abandoned entirely and we will notify the Township that you are no longer the equitable
owner of the property.
We would very much like to avoid this result, but be aware that we are prepared to do so,
if necessary,
Sincerely,
/iJf:'/
~rl ."
The Mongellis
Enclosure
E;(~;0it G
From: DMongelli@hersheypa.com
To: frank@tarnanini.com
Cc: frankl0l@corncast.net
Subject: moving forward-Phase II Trindle Station
Date: Wed, 28 Dec 200515:01:12 +0000
12/28/2005
Dear Frank,
You are jeopardizing the business at hand by failing to communicate with
us, I can only excuse your anger and frustrations for so long, I wouid
have hoped that rational thoughts would have prevailed at this point,
Sticking your head in the sand and choosing to ignore the business at hand
will not alter the fact that your Sales Agreement is null and void. It
does not change that Lot 6 does not meet the specifications I required of
the addendum, Should you still wish to move forward with the project, we
will have to discuss terms that address the situation with the iot and are
agreeable to my Family, Again I must reiterate, should you elect not to
communicate, your inaction will speak for you. The null and void Sales
Agreement will be considered abandoned at midnight on January 2, 2006,
I have been patient and understanding as you have been working through your
emotions at the failure of your Engineer to follow through on your
direction coupled with the unpleasantness of recuperating from your foot
surgery. However, I have a fiduciary responsibility to my partnership and
will stay focused on the task at hand,
The courtesy of your response is expected.
- Derek
From 0 ~ta-'JJongg[ij@c.QmQ'st.net
To: frank(1iltamanini.com
Subject: Trindie Station Phase II
Date: Fri, 23 Dee 2005
Frankl
We have not heard from you as requested by today's date. I understand
your frustration, But I would hope that your business acumen wbuld not be
clouded by misdirected emotions over your Engineer failing to follow your
instruction that Lot 6 be reconfigured to meet the sales agreement. Let's
return to the point of business in front of us, Below is an electronic
version of a letter I delivered to your office today.
Enjoy the Holidays and I look forward to us getting together soon so that
we can reach an accord.
-Derek
December 23, 2005
Dear Frank:
Please allow this letter to serve as confirmation of our
previous discussions concerning the status of the agreement of sale for 55
Sinclair Road, dated May 10, 2004 and the addendums thereto,
Our position remains that as of December 10, 2005, the
agreement of sale expired, because (1) settlement had not occurred and (2)
because paragraph nine (9) of the second addendum to the saies agreement
calling for a plan with Lot 7 (subsequently renumbered as Lot 6) to be
approved by Monroe Township containing no less than one-half (A V2) of an
~
~ X~lb;t H
.
11/31/5
Tom, Gwen and Derek,
We are ready to settle the Monroe Township land at your convenience most
anytime after Wednesday December 7, 2005 except Friday the 9th.
Please find the following items for your review:
1, Approved Subdivision plan.
2. Storm water easement exhibit.
3, Legal description of Lot 1 to be conveyed and Lot 2 to be retained
by you,
4, Subordination agreement for Sovereign Bank,
5, DEP request for planning waiver.
Ric Martsolf is preparing the storm water easement agreement detailing
Trindle Station's responsibility for all costs associated with installation,
maintenance, repair or restoration. I will forward ASAP,
Tri County Abstract will prepare the deeds for Lot 1 to be conveyed to
Trindle Station, LLC as well as Lot 2 to be retained in the names of John
and Gwen Mongelli Husband and Wife two-thirds (2/3) interest, and Derek
Mongelli and Denise Mongelli husband and wife one third (1/3) interest. Tri
County will also write a deed for 608 Williams Grove Road correctly
worded as above.
Please let me know if you have any questions or comments,
Thank you,
Frank
.
.,
f Xh10}f L
.
DEPOSITS TO JOHN & GWENETH MONGELLI DATE PAID AMOUNT
5/10/04 10,000.00
12/6/04 5,000.00
5/2/05 5,000,00
6/9/05 20,000.00
TOTAL 40,000.00
LEGAL AND PROFESSIONAL FEES
SERRATELlI, SCHIFFMAN, BROWN & CALHOUN, PC 6/11/04 342,00
7/27/04 54,00
2/17105 2,041.00
3/17/05 100,00
4/1/05 1,140,00
5/20/05 640.00
6/17/05 280,00
7/19/05 200.00
8/25/05 60.00
10/4/05 1,260,00
11/3/05 1,480,00
12/20105 1,019.10
TOTAL 8,616.10
JOHNSON, DUFFIE, STEWART 9/13/04 1,944,44
10/18/04 1,609,32
7/26/05 550,50
TOTAL 4,104.26
ENVIRONMENTAL DESIGN 5/20/05 297,00
TOTAL 297.00
TOT ALL& P FEES 13,017.36
.
ENGINEERING
TOTAL ENGINEER COSTS
5/20/05 801,00
5/20/05 801.50
5120105 640,00
5/20/05 380.00
6/17105 240.00
6/17/05 550,50
6/30/05 500,00
6130/05 1,000,00
11/16/05 2,190.00
12/7/05 197.40
12/14/05 690,00
12/20/05 332.50
TOTAL 8,322.90
1/11/05 1,369,90
1/24/05 4,407.50
3/17/05 6,570.00
3117/05 3,649.06
5/9/05 7,687,78
6/6/05 6,012.50
6/17/05 4,087.50
8/2/05 6,535.19
9127/05 602,50
10/13/05 1,440.00
11/9/05 4,220.24
11/29/05 6,350.91
TOTAL 52,933.08
4/1/05 10,00
TOTAL 10.00
5/9105 4,328.48
5/9/05 1,248.07
5/20/05 3,261,73
7/26/05 855,10
8/25/05 1,253.88
9/27105 958,49
11/3/05 1,621,19
11/16/05 469,79
TOTAL 13,996.73
9130/05 3,922,50
TOTAL 3,922.50
75,262.71
MONROE TOWNSHIP
ALPHA
TRI COUNTY ABSTRACT
TRAFFIC PLANNING & DESIGN
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II
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FRANK P. TAMANINI,
Plaintiff
IN THE COURT OF
COMMON PLEAS
CUMBERLAND COUNTY, PA
vs.
JOHN T. MONGELLI,
GWENETH D, MONGELLI,
DEREK A. MONGELLI, and
DENISE A. MONGELLI,
Defendants
CIVIL ACTION
No. (J[> 6 toJ
JURY TRIAL DEMANDED
PRAECIPE FOR LIS PENDENS
TO THE PROTHONOTARY:
Please enter the above as a Lis Pendens against that
real property situate in Monroe Township, Cumberland
County, PA, known as 55 Sinclair Road and more
particularly described on Exhibit "A" attached hereto.
I certify that this action involves the specific
enforcement of an agreement to purchase the above
premises.
Respectfully submitted,
SAlOIS, SHUFF, FLOWER & LINDSAY
Date:
P -,)19-- ,II J-
(I,
By:
rian C, Caffrey, E
Attorney ID #42667
26 West High Street
Carlisle, PA 17013
Phone: 717.243.6222
Fax: 717.243.6510
Attorney for Plaintiff
LEGAL DESCRIPTION
LANDS OF MONGELLI TO BECOME LOT 1
MONROE TOWNSJIIP, CUMBERLAND COUNTY
BEGINNING at the southwest corner of Lot 14 of the Final Subdivision Plan for Trindle Station
as recorded in Plan Book 90 page 29 of the public records of Cumberland County, P A, said point
being located on the northern property line oflands now or formerly belonging to Samuel R. and
Laura A, Neely; thence along the northeqI property line of lands now or formerly belonging to
Samuel R. and Laura A, Neely and lands now or formerly belonging to E. Donald and Donna K.
Miller South 72 degrees 15 minutes 00 seconds West a distance of 1582.06 feet to a point on the
eastern right-of-way line of Sinclair Road as dedicated per the aforesaid Final Subdivision Plan
for Trindle Station; thence along the eastern right-of-way of Sinclair Road the following four (4)
courses:
1. Curve to the right having a radius of 589,36 feet, an arc length of 223,70 feet, a chord
bearing of North 29 degrees 41 minutes 22 seconds West and a chord length of 222.36
feet,
2, North 20 degrees 43 minutes 45 seconds West a distance of684.8l feet,
3, North 17 degrees 22 minutes 29 seconds West a distance of281.36 feet,
4, Curve to the left having a radius of 448,16 feet, an arc length of 111.49 feet, a chord
bearing of North 26 degrees 14 minutes 53 seconds West and a chord length of 111.20
feet;
Thence along the southern property line of proposed Lot 2 of the Final Subdivision Plan for
Mongelli and Stone Tracts as prepared by Alpha Consulting Engineers North 73 degrees 01
minutes 53 seconds East a distance of 379,09 feet; thence continuing along Lot 2 North 11
degrees 34 minutes 14 seconds East a distance of317.29 feet; thence along the same North 46
degrees 07 minutes 10 seconds West a <iistance of780,53 feet to a point on the southern property
line oflands now or formerly belonging to Rodger M, and Doris E. Jumper; thence along the
southern property line of lands now or fonllerly belonging to Rodger M. and Doris E, Jumper
South 88 degrees 12 minutes 25 seconds East a distance of134,79 feet; thence continuing along
lands now or formerly belonging to Rodger M. and Doris E. Jumper and along the southern
boundary of the Wertz Development South 73 degrees 27 minutes 25 seconds East a distance of
1555,76 feet; thence along the western property line oflands now or formerly belonging to Dale
E. and Patricia M, Elicker and along the western property line of lands now or fonnerly
belonging to Kenneth L Stone South 13 degrees 47 minutes 02 seconds East a distance of238,86
feet; thence continuing along lands now or formerly belonging to Kenneth L Stone North 73
degrees 06 minutes 56 seconds East a <iistance of201,09 feet; thence along the same North 63
degrees 43 minutes 21 seconds East a distance of 197,95 feet to the northwest comer of the
municipal boundary of Momoe Township and Upper Allen Township, said point also being the
northwest comer of the aforesaid Final Subdivision Plan for Trindle Station; thence along the
municipal boundary of Momoe Township and Upper Allen Township being the western
boundary line of the aforesaid Final S\lbdivision Plan for Trindle Station South 03 degrees 46
minutes 49 seconds East a distance of1151.47 feet to the point of beginning,
Containing 2,775,825 square feet or 63,72 acres,
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LEGAL DESCRIPTION
LOT 2 OF TRlNDLE STATION PHASE II
MONROE TOWNSHIP, CUMBERLAND COUNTY
BEGINNING at the southwest property comer of lands now or formerly belonging to Rodger M,
and Doris E, Jumper; thence along the ,outhern property line oflands now or formerly belonging
to Rodger M, and Doris E. Jumper South 88 degrees 12 minutes 25 seconds East a distance of
55.21 feet; thence along the western pr{)perty line of proposed Lot 1 of the Final Subdivision
Plan for Mongelli and Stone Tracts as prepared by Alpha Consulting Engineers South 46 degrees
07 minutes 10 seconds East a distance {)f 780,53 feet; thence continuing along proposed Lot 1 of
the aforesaid Final Subdivision Plan for Mongelli and Stone Tracts South 11 degrees 34 minutes
14 seconds West a distance of 317.29 feet; thence along the same South 73 degrees 01 minutes
53 seconds West a distance of379,09 feet to a point on the eastern right-of-way line of Sinclair
Road as dedicated per the Final Subdivision Plan for Trindle Station as recorded in Plan Book 90
page 29 ofthe public records of Cumberland County, P A; thence along the eastern right-of-way
of Sinclair Road the following five (5) 90urses:
1, Curve to the left having a radius of 448,16 feet, an arc length of76,06 feet, a chord
bearing of North 38 degrees 14 minutes 14 seconds West and a chord length of75.97
feet,
2, North 41 degrees 01 minutes 20 seconds West a distance of 179,02 feet,
3, Curve to the right having a radius of291.83 feet, an arc length of223,02 feet, a chord
bearing of North 24 degrees 46 minutes 39 seconds West and a chord length of217,63
feet,
4. North 08 degrees 00 minutes 07 seconds West a distance of 48,60 feet,
5, North 07 degrees 19 minutes 20 seconds West a distance of338,78 feet;
Thence along the eastern property line of lands now or formerly belonging to BP America, Inc,
North 31 degrees 17 minutes 35 seconds East a distance of219,73 feet to the point ofbeginnillg,
Containing 435,593 square feet or 10,00 acres,
Y :\03\230500 .aph\230500\documents\PHASE II\SUB!Jl\ASUBD IV-LOT2. doc
",' . ....
CERTIFICA TE OF SERVICE
I hereby certifY that on December 30, 2005 I served copies ofthe foregoing
praecipe upon Defendants by first-class mail, addressed as follows:
John T, Mongelli
Gweneth D, Mongelli
608 Williams Grove Road
Mechanicsburg, P A 17055
Derek A, Mongelli
Denise A Mongelli
915 Streamside Way
Marysville, P A 17053
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i
FRANK P. TAMANINI,
Plaintiff
IN THE COURT OF
COMMON PLEAS
CUMBERLAND COUNTY, PA
vs.
CIVIL ACTION
JOHN T. MONGELLI,
GWENETH D, MONGELLI,
DEREK A. MONGELLI, and
DENISE A. MONGELLI,
Defendants
No. i9r ~ 0fot
JURY TRIAL DEMANDED
NOTICE OF LIS PENDENS
To Defendants, and All Others Whom It May Concern:
NOTICE IS HEREBY GIVEN that an action has been
commenced and is now pending in the Court of Common Pleas
of Cumberland County, PA on the Complaint of the above-
named Plaintiff against the above-named Defendants at
2005-ICrOS'
Civil Action No,
for specific performance of a
contract for the sale by Defendants and purchase by
Plaintiff of real property in Monroe Township, Cumberland
County, PA, known as 55 Sinclair Road and more
particularly described on the attached Exhibit "A."
PROTHONOTARY OF
CUMBERLAND COUNTY, PA
( J. "l~ ('i, IVlra; .~
By: 11
Deputy Prothonotary
December 30, 2005
.
LEGAL DESCRIPTION
LANDS OF MONGELLI TO BECOME LOT 1
MONROE TOWNS]{IP, CUMBERLAND COUNTY
BEGINNING at the southwest corner of Lot 14 of the Final Subdivision Plan for Trindle Station
as recorded in Plan Book 90 page 29 of the public records of Cumberland COImty, P A, said point
being located on the northern property line of lands now or formerly belonging to Samuel R, and
Laura A Neely; thence along the northern property line of lands now or fonnerly belonging to
Samuel R. and Laura A. Neely and lands now or formerly belonging to E. Donald and Donna K.
Miller South 72 degrees 15 minutes 00 seconds West a distance of 1582,06 feet to a point on the
eastern right-of-way line of Sinclair Road as dedicated per the aforesaid Final Subdivision Plan
for Trindle Station; thence along the eastern right-of-way of Sinclair Road the following four (4)
courses:
1. Curve to the right having a radius of 589,36 feet, an arc length of 223,70 feet, a chord
bearing of North 29 degrees 41 minutes 22 seconds West and a chord length of222,36
feet,
2, North 20 degrees 43 minutes 45 seconds West a distance of684,81 feet,
3, North 17 degrees 22 minntes 29 seconds West a distance of281.36 feet,
4. Curve to the left having a radius of 448,16 feet, an arc length of 111.49 feet, a chord
bearing of North 26 degrees 14 minutes 53 seconds West and a chord length of 11 1.20
feet;
Thence along the soutl1ern property line of proposed Lot 2 of the Final Subdivision Plan for
Mongelli and Stone Tracts as prepared by Alpha Consulting Engineers North 73 degrees 01
minutes 53 seconds East a distance of379,09 feet; thence continuing along Lot 2 North 11
degrees 34 minutes 14 seconds East a distance of 317.29 feet; thence along the same North 46
degrees 07 minutes 10 seconds West a distance of 780,53 feet to a point on the southern property
line of lands now or formerly belonging to Rodger M, and Doris E, Jumper; thence along the
southern property line of lands now or formerly belonging to Rodger M, and Doris E, Jumper
South 88 degrees 12 minutes 25 seconds East a distance of 134,79 feet; thence continuing along
lands now or fOlmerly belonging to Rodger M, and Doris E. Jumper and along the southern
boundary of the Wertz Development South 73 degrees 27 minutes 25 seconds East a distance of
1555,76 feet; thence along the western property line oflands now or fonnerly belonging to Dale
E, and Patricia M, Elicker and along the western property line oflands now or fonnerly
belonging to Kenneth L Stone South 13 degrees 47 minutes 02 seconds East a distance of238,86
feet; thence continuing along lands now or formerly belonging to Kenneth L Stone North 73
degrees 06 minutes 56 seconds East a distance of201.09 feet; thence along the same North 63
degrees 43 minutes 21 seconds East a distance of 197,95 feet to the northwest comer of the
municipal boundary of Monroe Township and Upper Allen Township, said point also being the
northwest corner of the aforesaid Final Subdivision Plan for Trindle Station; thence along the
municipal boundary of Monroe Township and Upper Allen Township being the western
boundary line of the aforesaid Final Subdivision Plan for Trindle Station South 03 degrees 46
minutes 49 seconds East a distance of 1151.47 feet to the point ofbegirming.
Containing 2,775,825 square feet or 63,72 acres,
(',\c. ":1--
Y :\03\230500 _aph\230500\documents\PHASE I!\S lIBD IV\SUBDIV-LOT1 A doc
.
LEGAL DESCRIPTION
LOT 2 OF TRINDLE STATION PHASE II
MONROETOWNSH~,CUMBERLANDCOUNTY
BEGINNING at the southwest property corner of lands now or formerly belonging to Rodger M,
and Doris E. Jumper; thence along the southern property line of lands now or formerly belonging
to Rodger M, and Doris E, Jumper South 88 degrees 12 minutes 25 seconds East a distance of
55.21 feet; thence along the western property line of proposed Lot I of the Final Subdivision
Plan for Mongelli and Stone Tracts as prepared by Alpha Consulting Engineers South 46 degrees
07 minutes 10 seconds East a distance of 780,53 feet; thence continuing along proposed Lot 1 of
the aforesaid Final Subdivision Plan for Mongelli and Stone Tracts South 11 degrees 34 minutes
14 seconds West a distance of 317.29 feet; thence along the same South 73 degrees 01 minutes
53 seconds West a distance of379,09 feet to a point on the eastem right-of-way line of Sinclair
Road as dedicated per the Final Subdivision Plan for Trindle Station as recorded in Plan Book 90
page 29 of the public records of Cumberland County, PA; thence along the eastem right-of-way
of Sinclair Road the following five (5) courses:
L Curve to the left having a radius of 448,16 feet, an arc length of 76,06 feet, a chord
bearing of North 38 degrees 141l1inutes 14 seconds West and a chord length of 75,97
feet,
2, North 41 degrees 01 minutes 20 seconds West a distance of 1 79,02 feet,
3, Curve to the right having a radius of291.83 feet, an arc length of 223,02 feet, a chord
bearing of North 24 degrees 46 minutes 39 seconds West and a chord length of217,63
feet,
4, North 08 degrees 00 minutes 07 seconds West a distance of 48,60 feet,
5, North 07 degrees 19 minutes 20 seconds West a distance of338,78 feet;
Thence along the eastem property line of lands now or fornlerly belonging to BP i'\merica, lnc,
North 3 1 degrees 17 minutes 35 seconds East a distance of219,73 feetto the point of beginning,
Containing 435,593 square feet or 10,00 acres.
Y :\03\230500 _ 2ph \230500\d Qcuments\PHASE 11\8 U B OIV\S U SO IV-LO T2. d oc
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2005-06808 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
TAMANINI FRANK P
VS
MONGELLI JOHN T ET AL
R, Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
MONGELLI DEREK A
but was unable to locate Him
in his bailiwick. He therefore
deputized the sheriff of PERRY
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On January
17th, 2006 , this office was in receipt of the
attached return from PERRY
Sheriff's Costs:
Docketing
Out of County
Surcharge
DEP PERRY CO
6.00
9,00
10.00
51,80
.00
76.80
01/12/2006
SAIDIS, SHUFF,
So ans'tE;rs: . _'
.-..) ~. ,,:
/( .... ~...0y~--
r /??" ?
R'. Thomas Kline
Sheriff of Cumberland County
FLOWER, LINDSAY
Sworn and subscribed to before me
.... L)
this .;z:; ~ day of ;"",,,,,
I 1
1()f)~ A.D.
~//-<-- C1 ~:Oe,., #
Prothonotary ,
SHERIFF'S RETURN ~ OUT OF COUNTY
CASE NO: 2005~06808 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
TAMANINI FRANK P
VS
MONGELLI JOHN T ET AL
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
MONGELLI DENISE A
but was unable to locate Her
in his bailiwick. He therefore
deputized the sheriff of PERRY
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On January
17th, 2006 , this office was in receipt of the
attached return from PERRY
Sheriff's Costs:
Docketing
Out of County
Surcharge
So answers..:
6.00
.00
10,00
.00
.00
16.00
01/12/2006
SAIDIS, SHUFF,
"..).:~ ,- - ~<:>~.. ..~?
.~5-
- ~
(
R', Thomas Kline
Sheriff of Cumberland County
FLOWER, LINDSAY
Sworn and subscribed to before me
this
.v
;;'5-
day of h
,l(}(j(, A.D,
().r~ 0 ~b~Lu . f,
Prothonotary
SHERIFF'S RETURN - REGULAR
CASE NO: 2005-06808 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
TAMANINI FRANK P
VS
MONGELLI JOHN T ET AL
DOUGLAS RUZANSKI
, Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
MONGELLI JOHN T
the
DEFENDANT
at 1915:00 HOURS, on the 6th day of January , 2006
at 608 WILLIAMS GROVE ROAD
MECHANICSBURG, PA 17055
by handing to
JOHN T MONGELLI
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof,
Sheriff's Costs:
Docketing
Service
Postage
Surcharge
18.00
9.68
1.17
10.00
.00
38,85
So Answers:
~?lt~.;t'd.c~~R
.r //",.~ '1~'
R. Thomas Kline
01/12/2006
SAIDIS SHUFF FLOWER LINDSAY
.
Sworn and Subscribed to before
By:
/' (:;1 {#~/
De ty riff
me this .<<J'!!:' day of
(I.'Q '';;". A.D. _
~. }JA~/",,-, ~
thonotary ,
SHERIFF'S RETURN - REGULAR
CASE NO: 2005-06808 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
TAMANINI FRANK P
VS
MONGELLI JOHN T ET AL
DOUGLAS RUZANSKI
Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
MONGELLI GWENETH D
the
DEFENDANT
, at 1915:00 HOURS, on the 6th day of January ,2006
at 608 WILLIAMS GROVE ROAD
MECHANICSBURG, PA 17055
by handing to
GWENETH D MONGELLI
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
6.00
.00
.00
10.00
.00
16.00
,,"
R. Thomas Kline
.,' ..."jr
,,;<<,/.
".. ":"040-,-1&.('
, -
l
01/12/2006
SAIDIS SHUFF
Sworn and Subscribed to before
By:
FLOWER'lINDSA;f'
/J ~,j./
, /;(, /?' /
/'./ r.);, "I .i--l~.h-"'/
DeputyJSher '.
me this ).j'Ji.' day of
(),A'''~'J JOV~ A.D.
C LrLU {;1 h,:le,. ,#'
I Prothonotary (
In The Court of Common Pleas of Cumberland County, Pennsylvania
Frank P. Tamanini
VS.
John T. Mongelli et al
SERVE: Derek A. Mongelli
No.
05-6808 civil
Now,
January 4, 2006
, I, SHERIFF OF CUMBERLAND COUNTY, P A, do
hereby deputize the Sheriff of Perry
County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
.~i?6~~
Sheriff of Cum berland County, P A
Affidavit of Service
Now,
January 9,
20 06 at 10: 17 o'clock A M. served the
, -'
within Complaint
upon Derek A. -Mongelli
at 915 Streamside Way Marysville, PA 17053 ( Rye Township)
by handing to
Denise A. Mongelli, Def. Wife
a
True & Attested
copy of the original Complaint
and made known to
Her
the contents thereof.
So answers,
Aaron D. Richards
d-tt>>l/ ~. /l.;c1...N);;;
Deputy Sheriff of Perry County,PA
Sworn and subscribed before
me this ID-Lh day of .sa V!l{(fi ,20~
mal ':/ 'AJL'1' v
COSTS
SERVICE
MILEAGE
AFFIDAVIT
$
NOTARIAL sm
MARGARET F. FLICKINGER, NOTARY PUBLIC
8LOOMFIELO BORO., PERRY COUNTY
MY COMMISSION EXPIRES FEB, 16, 2008
$
In The Court of Common Pleas of Cumberland County, Pennsylvania
Frank P. Tamanini
VS.
John T. Mongelli et al
SERVE: Denise A. Mongelli
No.
05-6808 civil
Now,
January 4, 2006
, I, SHERIFF OF CUMBERLAND COUNTY, P A, do
hereby deputize the Sheriff of Perry
County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
'~~~/~R
Sheriff of Cumberland Couuty, P A
Affidavit of Service
Now,
January 9,
,20~, at 10: 17 o'clock A M, served the
within
Complaint
upon
Denise A. Mongelli
m 915 Streamside Way Marysville, PA 17053 (Rye Township)
by handing to
Denise A. Mongelli, Defendant
a True & Attested
copy of the original Complaint
and made known to
Her the contents thereof
So answers,
Aaron D. Richards
~.~t7Jov JJ" ;f:d/t t~
Deputy
Sheriff of Perry
County, P A
NOTARIAL SEAL
MARIlARfr F, FUCKINGER, NOTARY PUBUC
BlOOMFIElO BORO" PERRY COUNTY
MY COMMISSION EXPIRES FEB. 16,2008
COSTS
SERVICE
MILEAGE
AFFIDAVIT
$
Sworn and subscribed before
me this 11:JJlJ. day of....]Ce Ill<d (i
"!YJal ~tH '-I.
u
$
FRANK P. TAMANINI
Plaintiff,
v.
JOHN T. MONGELLI,
GWENE1HD. MONGElli,
DEREK A MONGELLI, and
DENISE A. MONGELLI
Defendants
To: Frank Tamanini
cI 0 Brian Caffrey
Saidis, Flower & Lindsay
26 West High Street
Carlisle, P A 17013
: IN 1BE CDURT OF CDMMON PLEAS
: OF CUMBERLAND CDUNIY, PENNSYL VANIA
: No: 2005-6808 Civil Term
: avrL ACTION - LAW
: JURy TRIAL DEMANDED
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.
Dated: February :z , 2006
WOLF & WOLF
FRANK P. TAMANINI
Plaintiff,
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
v.
: No: 2005-6808 Gvil Term
JOHN T. MONGELLI,
GWENETIID.MONGElli,
DEREK A MONGElli, and
DENISE A. MONGELLI
Defendants
: eVIL ACTION - LAW
: JURy TRIAL DEMANDED
ANSWERTOCOMPUUNT
AND NOW COME the defendants, John T. Mongelli, Gweneth D. Mongelli, Derek A.
Mongelli, and Denise A. Mongelli, by and through their counsel, Nathan C. Wolf, and present this
answer to the complaint by plaintiff, and in support thereof state the following:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted in part. Denied in part. It is admitted that both parties entered into said
agreement of sale for certain land known as 55 Sinclair Road, situated in Monroe Township,
Cumberland County, P A. Defendants specifically deny that they have agreed to the metes and
bounds of lot 2, exhibit B to the Plaintiff's complaint, which set forth the boundaries of an
eighteenth (18'h) century historic stone farmhouse and bank bam known as "55 Sinclair Road"
which property is to be retained by Defendants and referred to as "Seller's retained property". The
subdivision of said lots is not yet approved by the Board of Supervisors of Monroe Township,
Cumberland County.
5. Admitted.
6. Admitted.
7. Admitted in part. Denied in part. It is admitted that the plaintiff has incurred costs
in the development of a land development application for the design and acquisition of the property.
It is specifically denied that Plaintiff's expenditures were limited to the subject property. Bywayof
further response, Plaintiff incurred expense in acquisition cost and in design related to the
acquisition of the neighboring Stone property, which required redesign of aspects of the plan for the
property that is the subject of the instant litigation.
8. Admitted
9. Denied as stated. Defendants informed Plaintiff by way of letter that should the
Plaintiff refuse to communicate with Defendants concerning their offer to discuss the sale of the
property with Defendants, the Defendants would notify the township that the Plaintiff was no
longer the equitable owner of the Plan submitted to the township so that Plaintiff would not
continue to pursue governmental approvals without the entitlement to do so. It is specifically
denied that such communication constituted a threat.
10. Admitted in part. Denied in part. The electronic mail sent by Defendant Derek
Mongelli was notably sent on his behalf alone, and was not sent on behalf of all of the Defendants,
and any characterization to the contrary is specifically denied. The remaining allegations of
paragraph 10 are admitted.
11. Admitted in part. Denied in part. The electronic mail sent by Defendant Derek
Mongelli was notably sent on his behalf alone, and was not sent on behalf of all of the Defendants,
and any characterization to the contrary is specifically denied. The remaining allegations of
paragraph 11 are admitted.
12. Denied. The allegations contained in paragraph 12 constitute a conclusion of law to
which no response is required. To the extent a response is required, the characterizations of
Defendant Derek Mongelli constitute statements of fact, as the parties had an agreement as to the
2
terms under which settlement would be cons=ted. When Plaintiff failed to deliver according to
those terms, the contract for the sale of land ceased to exist, and Defendants, in good faith, notified
Plaintiff that they were willing to continue discussions for the sale of the property. Such actions do
not constitute a repudiation of the agreement after the agreement of sale has expired.
13. Denied.lt is specifically denied that the deadline for closing on the conveyance
contemplated in the agreements between the Plaintiff and Defendants has not yet arrived, and is
dependent on additional steps, fully contemplated and foreseen by the parties, in the process of
making the real estate suitable for development. On the contrary, the deadline for closing on the
conveyance was December 10, 2005, in accordance with the terms of the agreement of sale and the
addenda thereto executed by the parties. Byway of further response, Plaintiff failed to obtain
governmental approval for a land development plan which was in accordance with the terms of the
parties agreements, which step was necessary to bring the conveyance to closing by the deadline.
14. Denied. Defendants are without sufficient infonnation to form a belief as to the
truth of the allegation contained in paragraph 14. By way of further response, as the agreements
expired on December 10, 2005 any action of Defendants in regards to conveying the real estate
cannot be construed as a violation.
COUNT I - SPECIFIC PERFORMANCE
15. Defendants incotporate by reference their responses to paragraphs 1-14 herein, no
further response required.
16. Denied. Defendants specifically deny that Plaintiff performed his obligations under
the agreements in a timely and sufficient manner. On the contrary, Plaintiff failed to obtain
governmental approvals for a plan that was in accordance with the agreements of the parties, by the
deadline for closing, December 10, 2005, Byway of further response, Plaintiff repeatedly failed to
provide necessary agreements to Defendants, including failing to provide a written agreement which
3
entitled the Defendants to exercise a right of first refusal for the purchase of one lot to be developed
on the property. Rather, Plaintiff submitted an inaccurate document that failed to reflect the terms
of the parties' agreements, memorialized in the agreement of sale and the addenda thereto, executed
by the parties.
17. Denied. The averments of paragraph 17 are denied as a conclusion of law to which
no response is required. To the extent a response is required, the uniqueness of the property is not
germane to the issue of whether the agreement of sale had expired, due directly to the failures of
Plaintiff to meet the requirements of the agreement of the parties.
18. Denied. The averments of paragraph 18 are denied as a conclusion of law to which
no response is required. To the extent a response is required, any potential harm suffered by the
Plaintiff is limited to his investment in the property, and any additional harm is speculative in nature
and is related directly to the failures of Plaintiff to meet the requirements of the agreement of the
parties. Byway of further response, Plaintiff's right to enforcement lapsed when he failed to perform
under the contract within the provided time period.
19. Denied. The averments of paragraph 19 are denied as a conclusion of law to which
no response is required. To the extent a response is required, the Defendants submit that but for
the failures of Plaintiff to meet the requirements of the agreement of the parties, he would not be in
a position to suffer any losses or damages whatsoever. By way of further response, the Defendants
deny having repudiated the agreement between the parties. On the contrary, Plaintiff's right to
enforcement lapsed when he failed to perform under the contract within the provided time period.
20. Denied. The averments of paragraph 20 are denied as a conclusion of law to which
no response is required. To the extent that a response is required, Defendants submit that Plaintiff
should not be rewarded by limiting their abiliry to convey the property to another purchaser simply
because Plaintiff has failed to perform within the time provided under the contract.
4
WHEREFORE, Defendants respectfully pray that this Honorable Court issue an order in favor of
Defendants and against Plaintiff, denying the relief requested by the Plaintiff including: denying his
request to order perlormance of the agreements, denying his request for injunctive relief, and to
clismiss the complaint of the Plaintiff, and awarding the costs of this suit to the Defendants, along
with any additional relief that the Court may deem appropriate and just.
COUNT II - BREACH OF CONTRACT
21. Defendants incorporate by reference their responses to paragraphs 1-20 herein, no
further response required.
22. Admitted in part. Denied in part. It is admitted that the Plaintiff offered to sewe on
the conveyance contemplated by the parties' agreements. It is specifically denied that Plaintiff's
offer to sewe was valid, as Plaintiff could not have sewed without meeting specific conditions prior
to the conveyance being settled. By way of further response, Plaintiff did not comply with the terms
of the parties' agreements by December 10, 2005, and therefore was not entitled to sewe on the
conveyance.
23. Denied. It is denied that Defendants offered clisingenuous excuses why they would
not close on the conveyance. On the contrary, Defendants identified valid deficiencies in the plan
which did not comport with the requirements of the agreement of sale and its addenda, executed by
the parties. By way of further response, Defendants did not communicate their belief to the Plaintiff
that the agreement was null and void unti! after the contract had expired on December 10, 2005.
Moreover, Defendants did not, themselves, believe the agreement to be null and void until after
December 10, 2005 and did not communicate anything to the contrary to the Plaintiff unti! that date
had passed and sewement had not occurred because of the deficiencies in the plan.
24. Denied. Defendants would have closed on the conveyance if the Plaintiff had
satisfied his obligations under the agreement and its addenda prior to closing. Defendants could not
5
have evaded their obligations under the agreement, because Plaintiff had not satisfied his obligations
under the agreement within the given time period. Plaintiff is seeking to have unlimited time within
which to complete the plans and present those plans to Defendants and Plaintiff simply seeks to
extend his opportunity to satisfy his obligations under the agreements without providing any
additional remuneration to Defendants.
25. Denied. The averments of paragraph 25 are denied as a conclusion of law to which
no response is required. To the extent a response is required, it is specifically denied that
Defendants ever acted in bad faith, or acted intentionally, willfully and in derogation of Plaintiff's
rights.
26. Denied. The averments of paragraph 26 are denied as a conclusion of law to which
no response is required. To the extent a response is required, Plaintiff's expenses were not limited
to the development of this parcel alone, nor can Plaintiff claim not to have received nearly two years
to obtain his approvals and close on the conveyance. Plaintiff's expenses were assumed risks, which
Plaintiff now wishes to blame on Defendants. Furthermore, Plaintiff, acting solely within his
discretion and insistence, willfully elected to halt and to suspend the approval process for several
months.
27. Denied. Defendants are without sufficient infonnation as to ascertain the truth of
the allegations of Paragraph 27.
WHEREFORE, Defendants respectfully pray that this Honorable Court issue an order in favor of
Defendants and against Plaintiff, denying the relief requested by the Plaintiff including: denying his
request to order performance of the agreements, denying his request for injunctive relief, and to
dismiss the complaint of the Plaintiff, and awarding the costs of this suit to the Defendants, along
with any additional relief that the Court may deem appropriate and just.
6
NEW MATTER
28. The agreement of sale and the addenda thereto, executed by the parties, called for a
specific time period within which the parties could settle on the conveyance.
29. The original agreement of sale was signed on May 10, 2004, along with two addenda
executed the same date.
30. The addendum referred to as Exhibit "C' to Plaintiff's complaint contains a
paragraph setting forth the time periods within which certain events had to occur.
31. In that paragraph, Plaintiff was afforded thirty (30) days within which he was to do
due diligence in determining the suitability of the property for development, for which he agreed to
pay a certain sum of money, which period ended on or about June 10, 2004.
32. Following that initial due diligence period, the Plaintiff had an additional six (6)
months to obtain approvals on the development plan, and Plaintiff was required to pay an additional
sum of money to Defendants against the purchase price of the property to retain the option to
purchase the property, which period ended on or about December 10, 2004.
33. Following that initial six (6) month period, the Plaintiff had an additional six (6)
month period within which he could obtain approvals on the development plan, and Plaintiff was
required to pay an additional sum of money to Defendants against the purchase price of the
property to retain the option to purchase the property. Said period expired on or about June 10,
2005.
34. Finally, the Plaintiff had an additional six (6) month period within which he could
obtain approvals on the development plan, and Plaintiff was required to pay an additional sum of
money to Defendmts against the purchase price of the property to retain the option to purchase the
property. Said period expired on or about December 10, 2005.
7
35. The Defendants and the Plaintiff agreed to Defendants retaining a right of first
refusal on what was originally identified as Lot 5, then Lot 7, and later identified as Lot 6.
36. The Plaintiff submitted plans for the Defendants review and comment in August of
2005, which was prior to the expiration of the agreement of sale.
37. Defendants provided a written submission to Plaintiff of their review and comment
within the five daytime period as mandated by the terms of the contract, Defendant Derek Mongelli
informed Plaintiff, at that time, that Lot 6 on the plan was not adequate to meet the terms of the
agreement of sale which called for a minimum of a one- half acre of land.
38. Defendant Derek Mongelli told Plaintiff that the plan should show that a house
measuring 100 feet in length by 80 feet in depth to fit on Lot 6, as specified in the addendum to the
agreement of sale, identified as Exhibit E to Plaintiff's complaint.
39. Likewise, at that point Defendants notified Plaintiff that they did not agree that the
boundaries of a ten (10) acre historic farm tract to be retained by Defendants were depicted
correctly, which property was to be retained by Defendants, even if they had settled on the
conveyance of the balance of the tract to Plaintiff.
40. Furthermore, in their review and comment, Defendants notified Plaintiff that they
did not agree to the removal of a tree boundary or buffer between the farm tract to be retained by
Defendants and the proposed development.
41. Two weeks following the written comment submission, Plaintiff called for a meeting
among the Defendants, Plaintiff and Plaintiff's engineer to discuss points of the written comments.
Engineer was directed by Plaintiff to make changes on conceptual plan to meet the terms of the
agreement. Defendant Derek A. Mongelli offered to provide the engineer with plans of the
proposed house plan for Lot 6 along with the buildable dimensions required of the one-half (Y..)
acre lot.
8
42. In November of 2005, Plaintiff obtained Conditional Use Approval from Monroe
Township which included a depiction of Lot 6 that lacked the minimum acreage required.
43. Plaintiff's approval also showed the incorrect boundaries on the historic farm
property of which Defendants were retaining ownership, comprising 10 acres of land.
44. Plaintiff's approval also lacked the buffered area between the farm property and the
developed lots, as agreed to by the parties.
45. Plaintiff's approval depicted a series of townhouses on an adjacent tract, but which
would be developed in conjunction with Defendants' property.
46. The process of obtaining conditional use approval prevents the applicant from
changing the site plan submitted to the municipality without obtaining separate approval for those
changes.
47. Plaintiff could not guarantee that he could get approval to reconfigure lots or restore
the landscape buffers as per the agreements between the panies, because those approvals were out
of his direct control.
48. The townhouse component of the development showed all of the units on
Defendants' property and the total density of the development was limited to sixty (60) townhouses
or duplex (not condominium) units and one hundred (100) single family homes.
49. As a result of the change, which was incorporated into the conditional use approval,
the total number of units changed on the Defendants' property, and a significant number of
townhouses were moved to the Stone property. Furthermore, the maximum density of single family
homes was exceeded with one hundred and eleven (111) single family homes.
50. As a result of the change, the financing agreement between Defendants and Plaintiff
was implicated, yet no discussions of the change ever took place between the panies before the
approval took place.
9
51. Underthe agreements, Defendants were to hold $1.75 million in financing on the
project and as completed units sold, the Plaintiff would make installment payments without interest
to the Defendants until the obligation was satisfied.
52. In exchange for the Defendants foregoing interest on the financing, the Plaintiff was
to consult and include the Defendants in the development process, because they would be
continuing to reside on, or adjacent to, the property if the development was ever constructed.
53. Despite Plaintiff's agreement to do so, he repeatedly omiued telling Defendants
about changes to plans and failed to incOlporate their input and suggestions into his plans for
development.
54. Thereafter, on or about December 1, 2005, the Defendants received the notice from
the Plaintiff that he was prepared to settle on the conveyance.
55. Defendants then inquired of Plaintiff as to why the site plan, as approved, did not
reflect the correct lot size for lot 6, why the boundaries for the farm tract were misplaced, why the
landscape buffer was eliminated, and why Plaintiff had failed to reduce the total number of single
family units to reflect the tenus of the agreement.
56. Defendants likewise requested to have an opportunity to review the Stormwater
Easement agreement which controlled stormwater runoff from the development across the farm
tract that Defendants were retaining, before the parties settled on the conveyance.
57. Defendants also demanded to have an opportunity to review the Right of First
Refusal Agreement for the purchase of Lot 6, before the parties seuled on the conveyance.
58. Without delay, Defendants communicated those requests to Plaintiff upon receipt of
his correspondence of his readiness to seule on the conveyance.
10
59. In conjunction with his request to schedule seulement on the conveyance, Plaintiff
also requested that Defendants sign an agreement to subordinate their mortgage with Plaintiff to all
other liens required to develop the property.
60. On or about December 8th, 2005, Defendants were notified by Plaintiff that he
would contact the engineer and direct him to make changes in the plan to correct the problems with
Lot 6.
61. Plaintiff refused to discuss making changes to the farm boundaries, despite the fact
that he had previously agreed with Defendants to have the proposed boundaries marked and staked,
to allow Defendants to walk said boundaries before the subdivision plan was submiued.
62. Likewise, Plaintiff refused to discuss the boundaries of the single family lots shown
on the concept plan, and to reduce the maximum number of single family homes to reflect the terms
of the agreement.
63. Plaintiff did, however, indicate that he would generate the Stormwater Easement
agreement and the Right of First Refusal Agreement and that he would forward the same to
Defendants for their review.
64. On or about the evening of December 5, 2005, Defendants received the Stormwater
Easement Agreement and the Right of First Refusal Agreement.
65. The next meeting of the Board of Supervisors of Monroe Township, who issued the
wriuen O:mditional Use Approval transmiued by leuer dated November 17,2005, was scheduled
for January 3, 2006, as that Board of SupelVisors' meeting for December was the same night as the
Defendants received the draft documents.
66. As a result of the state of the approved plan, the Defendants were not comfortable
seuling on the conveyance without having Lot 6 depicted as per the parties' agreements on the
approved site plan.
11
67. When Defendants reviewed the Right of First Refusal agreement from Plaintiff, they
discovered that the terms of that agreement did not comport with the telTIlS set forth in the
agreement of sale and the addenda thereto, executed by the parties.
68. The Plaintiff had agreed to convey Lot 6 to Defendants Derek and Deruse Mongelli
for seventy-five percent (75%) of the market price for the lot, if an offer was received on the lot
from another buyer, as described in the addendum to the agreement of sale attached to Plaintiffs
complaint as Exhibit D.
69. In the agreement provided to the Defendants, Plaintiff had eliminated that provision
and required the full market price from Defendants.
70. When Defendants reviewed the Stormwater Easement agreement from Plaintiff, it
referred to different parties, lacked correct details and was missing important information.
71. When Defendants notified Plaintiff of these problems, Plaintiff drafted and
submitted to Defendants a document entitled "Third Addendum to Agreement of Sale", for their
review and signature. (A true and correct copy is attached hereto and incorporated herein as Exhibit
"A").
72. Said document was transmitted to Defendants on or about December 16, 2005.
73. Said agreement purports that the Stormwater Easement agreement and the Right of
First Refusal agreement were submitted to Defendants by Plaintiff, but Defendants had already
notified Plaintiff of the errors in said documents prior to the drafting of this "Third Addendum".
74. Said agreement did reveal, as Defendants allege, that the configuration of Lot 6 was
not previously approved by Defendants, and that the Stormwater Easement agreement was not
previously approved by Defendants because of deficiencies noted in each document and in the
actual subjects of said agreements.
12
75. In this "Third Addendum", Plaintiff acknowledges that the time period for
semement on the conveyance did have a time limit within which to reach said settlement.
76. Plaintiff now submits that December 10, 2005 was not the deadline for settlement.
77. Defendants did not inform Plaintiff that they believed the agreement was null and
void until on or after December 12, 2005.
78. Even after that date, Defendants were willing to continue to negotiate the
conveyance of the property to Plaintiff, despite his previous failures to perform his obligations.
79. Defendants were not prepared to agree to settle on the conveyance with Plaintiff
because of the specific deficiencies identified to Plaintiff and identified herein.
80. Not until Plaintiff refused to communicate further with Defendants did Defendants
author their correspondence to Plaintiff dated December 23,2005.
81. Defendants, at all times, acted in good faith, and in accordance with the terms of the
agreements between the parties.
82. Plaintiff failed to act in good faith and now seeks to be rewarded for such failures.
13
WHEREFORE, Defendants respectfully pray that this Honorable Court issue an order in favor of
Defendants and against Plaintiff, awarding Defendants the costs of this suit and issuing declaratory
relief such that the agreement of sale and its addenda are expired and that the parties have no
continuing obligations to one another, along with any additional relief that the Court may deem
appropriate and just.
Respectfully submitted,
WOLF & WOLF
Date: February 2, 2006
"
, s"quire
urt ID No. 87380
14
DEC. 15 2005 10:25AM
s. s ~, & c.
Hb g, r a, 1'1 I U
'lV, v, I L
rCLf.."<-(\ 12}/&/u'
'rHIRD ADDENDUM TO AGREEMENT Of SALE
THIS THIRD ADDE;NDUM TO AGREEMENT OF SAl.E ("Third Addendum") is made U1ls
_'. day of , 2005 by and between JOHN T. MONGELLI and GWENETH D,
MONGELLI, his wife, and DEREK A MONGELLI and DENIS'" A, MONGELLI, his wife
("Seller"); and FRANK TAMANIN1, an adult indiVidual, or aSSigns ("Buyer"),
BACKGROUND
A. Buyer and Seller entered Into an Agreement of Sale for the sale and purchase of
certain property located in Monroe Township, Cumberland County, Pennsylvania, commonlY
known as 55 Sinclair Road, comprising 74acffi\i more or lese ("Property"), 01'1 May 10, 2004
("Agreement"),
e, Seller and Buyer entered into two Addenda to Agreement of Sale on M!lY 10,
2004 ("Addenda").
C. Seller and Buyer entered into a Second Addendum to Agreement \If Sale on
March 25, 2005 ("Second Addendum").
D. Buyer wa:s prepared to close on the. purchase and sale of the Property within the
time pertod specified in the Addenda and, in conj\lnclion therewith, submitted to Seiler. for its
review and approval, the Right of First Refusal Agreement and stormwater Easement
Agreement required by the Second Addendum,
E. Seiler has requested and Buyer has agreed to extend the time period for elae:lng
to all\lw Seller time (1) to approve the design of the Stormwater Easement Faollltles which are
the subject matter of the stormwater Ellsement Agreement ("Seller Storrnwater EaSement
Facilities Approval"); and (2) to review and approve the configuration of Lot 6 which Is the
subject. matter of the Right of First Refusal Agreement ("Seller Lot Reconfiguratlon Approval"),
In consideration of the obligations and undertakings set forth herein, intending to be
legaily bound hereby, Seller and Buyer agre.. as follows:
1. The Background hereinabove set forth is incorporated herein by reference.
2. Closing on the Property shall occur on or before the expiration of six (6) months
from the date of this Third Addendum unless extended by Buyer, Notwithstanding the provision
of this paragraph. olosing shall occur within fifteen (15) business days of Seller's issuance in
writing of its Seller Stormwater Easement Facilities Approval and Seller Lot Reconfiguration
Approval. Seller'S written approval may include Seller's execution, If required, on any
preliminary and/or final subdivision plan for Phase II of Trimlle 3tation,
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3. Buyer shall coopel'atQ with Seller in providing Seller with such plans from time to
time as Seller may reasonably requ..st or require to a$$ls\ Seller in providing the Seller
Stor~ter Easelll",nt F"ilcll1tles Approval and Selllllr Lot Reconflgurl;l\ion Approval.
4. Seller Shall cooperate with Buyer in executing any and all documents as Buyer
may reasonably require to further the development/subdivision of Phase \I of Trindle Station as
substantially slOt forth in the Concept Plan for Trlndle Station Phase II ptepared by Alpha
Consulting Engineers. Inc. date<:! June 10, 2005.
5. To the extent the t"rms and conditions Of the Agreement, Addenda, Second
Addendum and tl1is Third AddendUm are Inconsistent, the Third Addendum shall control.
IN WITNESS WHEREOF. the parties have hereunto set their hands and seals the day
and year first above written.
WITNESS:
John T. Mongelli
Gw9neth D. Mongelli
Derek A, Mongelli
. Denise A. Mongelli
Frank ramanlni
2
VERIFICATION
I, the undersigned, hereby verify that I am a defendant in this action and that the facts stated
in the above Answers and New Matter are true and correct to the best of my information and belief.
I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section
4904, relating to unsworn falsification to authorities,
z
-1-,2006
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~rek A. Mo .
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Denise A. Mongelli
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FRANK P. TAMANINI
Plaintiff,
v.
JOHN T. MONGELli,
GWENETIID. MONGElli,
DEREK A MONGELli, and
DENISE A. MONGELli
Defendants
: INlHE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNIY, PENNSYLVANIA
: No: 2005-6808 Civil Term
: OVIL ACITON - LAW
: JURy TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Nathan C. Wolf, Esquire, certify that a copy of the foregoing Answer to Complaint has
been served on this date by first class mail upon the following individual:
Brian Caffrey, Esquire
Saidis, Flower & Lindsay
26 West High Street
Carlisle, P A 17013
Attorney for Plaintiff
Dated: February ~006
WOLF & WOLF
, Esquire
outh nover Street, Suites 201-202
. e, PA 17013
Supreme Court LD. No. 87380
(717) 241-4436
Attorneys for Appellants
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FLOWER &
LINDSAY
"TIORNEYS-AT.lAW
26 West High Street
Carlisle, PA
FRANK p, T AMANINI,
: IN THE COURT OF COMMON
: PLEAS
: CUMBERLAND COUNTY, P A
Plaintiff
vs.
: CIVIL ACTION
JOHN T, MONGELLI,
GWENETH D, MONGELLI,
DEREK A. MONGELLI, and
DENISE A, MONGELLI,
Defendants
: No, 05-6808 Civil Term
: JURY TRIAL DEMANDED
PLAINTIFF'S REPLY TO DEFENDANTS' NEW MATTER
28, Admitted in part and denied in part. The agreement of sale and the
addenda thereto (the "agreements") are in writing and speak for themselves. Plaintiff
denies that the agreements call for "a specific time period within which the parties
: could settle on the conveyance," There is not one specific, invariable time period
! within which the parties must settle, The time for closing is governed by, among other
provisions, paragraphs 4 and 5 of the first of the May 10, 2004 addenda (the "May 10
addenda"), Exhibit "c" to Plaintiffs complaint.
29. Admitted,
30, Denied as stated, Exhibit "c" to Plaintiffs complaint, the first of the
i May 10 addenda, contains several provisions relating to time periods, and Plaintiff
denies Defendants' characterization. Paragraph 28 set forth above is incorporated
herein by reference,
31.
Denied as stated, Defendants do not identify the paragraph to which
they refer, and Plaintiff denies Defendants' characterization. Paragraph 28 set forth
above is incorporated herein by reference, Paragraphs 2 and 4 of the first of the May
10 addenda do contain provisions relating to due diligence.
32, Plaintiff denies the characterizations set forth in paragraph 32. The first
of the May 10 addenda is a document in writing which speaks for itself. Paragraph 31
set forth above is incorporated herein by reference, The terms "development plan" and
"option" do not appear in paragraph 4 of the first of the May 10 addenda,
33, Plaintiff denies the characterizations set forth in paragraph 33, The first
of the May 10 addenda is a document in writing which speaks for itself. The terms
"development plan" and "option" do not appear in paragraph 4 of the first of the May
10 addenda,
34, Plaintiff denies the characterizations set forth in paragraph 34, The first
of the May 10 addenda is a document in writing which speaks for itself. The terms
"development plan" and "option" do not appear in paragraph 4 of the first of the May
10 addenda. Plaintiff denies that the agreements require closing on the conveyance by
December 10,2005.
35, Denied as stated, The agreements are documents in writing which
speak for themselves, and Plaintiff denies Defendants' characterization. Paragraph 4 of
the second of the May 10 addenda, Exhibit "D" to Plaintiff's complaint, provides as
follows:
The sellers have the right to purchase one lot of their choosing at 75 % of the
published price of the lot Sellers could also deduct the $17,500,00 due from
the Buyer under this agreement
SAIDIS,
FI.OWER & The "Second Addendum to Agreement of Sale, " Exhibit "E" to Plaintiff's complaint,
LINDSAY
ATIORNl1-S'AHAW
26 West High Street
Carlisle, PA
particularly paragraph 9 of that addendum, provides in part that "At settlement on the
Property, Seller and Buyer shall execute a right of first refusal to Seller to purchase
Lot 7", ,"
2
36, Plaintiff denies that he submitted the plans to Defendants in August,
2005; in fact, Plaintiff submitted the plans to Defendants in May, 2005,
37, Plaintiff denies that Defendants provided a written submission to
Plaintiff of their review and comment within the five-day period mandated by the terms
of the contract. Plaintiff denies that Defendant Derek Mongelli informed Plaintiff at
that time that Lot 6 was not adequate, On the contrary, Derek Mongelli indicated to
Plaintiff in May, 2005 that the design of Lot 6 was satisfactory,
38, Admitted in part and denied in part, Derek Mongelli did not make these
statements until August, 2005, In May, 2005 Derek Mongelli expressed to Plaintiff his
satisfaction with the size of Lot 6,
39, Plaintiff denies that Defendants notified Plaintiff that they did not agree
that the boundaries of the ten-acre historic farm tract were depicted correctly.
40, Admitted that Defendants so notified Plaintiff; however, there is no
provision in any of the agreements for any such tree boundary or buffer. Furthermore,
Defendants made this notification verbally, not in writing, and not within the five-day
period referred to in paragraph 37.
41. Admitted in part and denied in part. Plaintiff denies that there were any
written comments from Defendants, Plaintiff admits that he called for a meeting,
which occurred May 17, 2005, The other events described in paragraph 41 occurred in
SAlOIS,
FLOWER & August, 2005, Furthermore, a "conceptual plan" is not the equivalent of a final land
LINDSAY
ATIOIlNEYlMT.lAW
26 West High Street development plan.
Carlisle, PA
42, Admitted, In May, 2005, Derek Mongelli had expressed to Plaintiff his
satisfaction with Lot 6 as depicted on the plans that were to be submitted to the
3
i township, Furthermore, a "conceptual plan" is not the equivalent of a final land
development plan,
43, Plaintiff denies that "Plaintiff's approval" showed incorrect boundaries
on the lO-acre historic farm property,
44. Plaintiff admits that no buffered area between the fann property and
developed lots appears on the conditional use application, Paragraph 40 set forth
above is incorporated herein by reference,
45, Admitted, This fact, however, is irrelevant to the subject matter of the
instant lawsuit.
46, Paragraph 46 sets forth a legal conclusion to which no reply is required,
Plaintiff does not contend that he has the power to use land in any way he chooses,
regardless of approval by a municipality. The process of obtaining approval for the
development is ongoing, and consists of a number of stages,
47. Plaintiff admits that he could not "guarantee" that he could get approval
to reconfigure lots. However, with regard to the "landscape buffers," one cannot
"restore" something that was not there to begin with, There is no provision in any of
the agreements for any such tree boundary or buffer. Plaintiff denies that such matters
are entirely "out of his direct control," although of course Plaintiff cannot act for the
township or for the planning commission, Furthermore, a "conceptual plan" is not the
SAlOIS,
FLOWER & equivalent of a final land development plan.
UNDSAY
ATIORNI:YS'AHAW
26 West High Street
Carlisle, PA
48,
Plaintiff denies that the total density of the development was limited to
sixty townhouses or duplex (not condominium) units and one hundred single-family
homes. The pertinent provision, paragraph 4 of the Second Addendum to Agreement
4
SAIDIS,
FlOWER &
UNDSAY
ATIT)IlNEYSoAT.lAW
26 West High Street
Cadisle,PA
of Sale (Exhibit "E" to the complaint), in addition to providing that "the property shall
be developed substantially in accordance with the Phase II Conceptual Plan," also
provides in part that "the maximum density of residential units on the Property shall be
one hundred sixty (I60) units with a proposed densitv mix of one hundred (I 00) single-
family homes and sixty (60) townhomes and/or duplex units," (emphasis added,) In
fact, the density of the development has been decreased, Plaintiff consulted
Defendants and obtained their approval of this allocation, Furthermore, for purposes of
the parties' agreements, there is no practical difference between a condominium unit
and a duplex, the former creating less density than the latter, Additionally, single-
family homes result in less density than duplexes,
49. Plaintiff admits that townhouses were moved to the "Stone property,"
referring to the owner of the adjoining land; however the number of townhouses on the
Stone parcel has absolutely nothing to do with the agreements between the parties in
the instant case, Plaintiff admits that the total number of units intended to be built on
the property currently owned by Defendants changed, but not in any way as to violate
the parties' agreements. Plaintiff denies that there is any "maximum density of single-
family homes," Paragraph 48 set forth above is incorporated herein by reference,
Defendants' allegations in paragraph 49 are merely an excuse to try to force Plaintiff to
renegotiate the parties' agreements,
50,
Plaintiff denies that the financing agreement between the parties was
implicated and that no discussions of the change ever took place between the parties
before the approval took place,
5
II
51. Admitted in part and denied in part. The agreements between the
parties are documents in writing which speak for themselves. Financing is governed
by paragraph I of the first May addendum.
52. Plaintiff denies that in exchange for the Defendants foregoing interest
on the financing, the Plaintiff was to consult and include the Defendants in the
development process because they would be continuing to reside on, or adjacent to, the
property to be developed. There is no such provision in any of the parties' agreements.
Plaintiff also denies the suggestion that there was doubt as to whether the development
would be built.
53. Plaintiff denies that he repeatedly omitted telling Defendants about
changes to plans and failed to incorporate Defendants' input and suggestions into the
development plans. Plaintiff denies that he had any obligation to incorporate
Defendants' input and suggestions into his plans for the development. Plaintiff denies
Defendants' characterization of Plaintiffs obligations under the agreements. Plaintiff
complied with paragraph 10 of the "Second Addendum to Agreement of Sale."
Paragraph 52 set forth above is incorporated herein by reference.
54. Admitted. Exhibit "H" to the complaint is incorporated herein by
reference.
55. Plaintiff denies that Defendants then inquired of Plaintiff as to why the
SAIDIS,
FLOWER & site plan, as approved, did not reflect the correct lot size for Lot 6, why the boundaries
LINDSAY
ATIORNI,YS'AHAW
26 West High Street
Carlisle, PA
for the farm tract were misplaced, why the landscape buffer was eliminated, and why
Plaintiff had failed to reduce the total number of single family units to reflect the terms
of the agreement. Derek Mongelli responded to Plaintiff that Defendants couldn't
6
SAIDIS,
FLOWER &
LINDSAY
ATTORNEYS'AT-lAW
26 West High Street
Carlisle, PA
close the following week because Gweneth Mongelli was busy with work. Derek
Mongelli said he would get back to Plaintiff with "housekeeping issues." On
December 8, 2005 Defendants raised only the issue of the size of Lot 6 and the issue of
the buffer. The discussion described in paragraph 55 did not occur.
56. Admitted. Plaintiff gave Defendants the storm water easement drawing
on December 1, 2005, and draft language for the storm water easement agreement
shortly thereafter.
57. Admitted. Plaintiff had given Defendants the draft right-of-first-refusal
agreement prior to the December 8, 2005 meeting.
58. Plaintiff denies that without delay, Defendants communicated those
requests to Plaintiff upon receipt of his correspondence of his readiness to settle. It
was more than five days after receiving Plaintiff s correspondence when Defendants
communicated these requests. Gweneth Mongelli and Derek Mongelli stated at the
meeting on December 8, 2005 that the time for closing had expired. Plaintiff stated
that that was not the case, that the deadline for closing was thirty days after receipt of
all unappealable approvals and permits for the project and recording of the final
subdivision plan, as provided in paragraph 5 of the first May 10 addendum.
59. Admitted. This was already part of the parties' agreement.
60. Admitted.
61.
Plaintiff denies that he refused to discuss making changes to the farm
boundaries. Plaintiffs engineers did stake the farm lot, and Defendants agreed that the
marking was satisfactory. Defendants had ample opportunity to walk the boundaries of
7
SAIDIS,
FLOWER &
LINDSAY
ATIlJRNEYSoA1'I.AW
26 West High Street
CarJisJe,PA
II
II
I
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the farm lot. Plaintiff did what was required by paragraph 2 of the second May 10
addendum.
62. Plaintiff denies that he refused to discuss the boundaries of the single-
family lots shown on the concept plan and to reduce the maximum number of single-
family homes to reflect the terms of the agreement. No such requests were ever made
by Defendants. The number of single-family homes does not violate the parties'
agreement.
63. Admitted, except that it was December I, 2005 when Plaintiff did so.
64. Admitted.
65. It is admitted that the Monroe Township board of supervisors issued the
written conditional use approval by letter of November 17, 2005. Plaintiff admits that
board of supervisors meetings were scheduled for December 5, 2005 and January 3,
2005; however, Plaintiff did not have any business before those meetings and did not
attend them. Furthermore, the draft documents referred to were not on the agenda of
either meeting.
66. Plaintiff admits that on December 8, 2005 Defendants stated that they
wanted Lot 6 to consist of one-half acre. After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as to the truth of the
averment that this attitude resulted from the "state of the approved plan."
67.
Plaintiff denies that the draft right-of-first-refusal agreement did not
comport with the terms of the other agreements, except that, due to an inadvertent
omission, the draft did not include the provision relating to "75 % of the published
8
SAIDIS,
FLOWER &
LINDSAY
AIl'ORNEYS.AT.IAW
26 West High Street
Carlisle, PA
price" set forth in paragraph 4 of the second May 10 addendum. Plaintiff denies that
this draft constituted an "agreement"; rather, it was a draft only.
68. Plaintiff denies that he had agreed to convey Lot 6 to Defendants Derek
and Denise Mongelli for 75 % of the market price for the lot, if an offer was received
on the lot from another buyer, as described in the second May 10 addendum. The
governing provision, paragraph 4 of that addendum, is part of a document in writing
that speaks for itself.
69. Plaintiff denies that in the draft right-of-first-refusal agreement, he had
"eliminated" the provision referred to or "required the full market price" from
Defendants. The document was merely a draft, and there was no ultimatum on the part
of Plaintiff.
70. Plaintiff denies that the draft storm-water easement agreement referred
to di fferent parties, lacked correct details, and was missing important information. In
fact, the draft contained one typographical error. The document was merely a draft,
and the parties discussed it as such.
71. Denied as stated. In fact, Plaintiff prepared the draft at the Defendants'
request.
72. Admitted. Furthermore, Defendants knew that Plaintiff was having
surgery on his foot on December 9,2005 and would be off work for three weeks.
73. Plaintiff denies that the draft "Third Addendum" was an "agreement."
In fact, it was never executed by any of the parties. With regard to the "errors,"
Defendants had only notified Plaintiff of the typo in the storm-water agreement and the
need for Lot 6 to be half an acre.
9
SAIDIS,
FLOWER &
LINDSAY
ArlURNEYS'AT.LAW
26 West High Street
Carlisle,PA
I[
74. Paragraph 73 is incorporated herein by reference. Plaintiff denies that
the configuration of Lot 6 was not previously approved by Defendants, and that the
storm-water easement agreement was not previously approved by Defendants because
of deficiencies noted in each document and in the actual subjects of those draft
agreements.
75. Plaintiff denies that he acknowledged anything in the draft "Third
Addendum" which Defendants requested he prepare and which he did not sign or
otherwise adopt. Plaintiff denies that the deadline for closing was December 10, 2005.
The time for closing is governed by paragraph 5 of the first May 10 addendum.
76. Admitted. The time for closing is governed by paragraph 5 of the first
May 10 addendum.
77. Denied as stated. Defendants first asserted that the parties' agreements
were null and void on December 23,2005.
78. Plaintiff denies that after December 12,2005 Defendants were "willing
to continue to negotiate the conveyance of the property," which would be irrelevant in
any event. There is nothing to "negotiate." In fact, Defendants are remorseful over the
agreements they made, and now wish to renegotiate all of those agreements. Plaintiff
denies that he breached any of the parties' agreements. In fact, Plaintiff has performed
and continues to perform his obligations under the agreements.
79. Denied as stated. Paragraph 78 set forth above is incorporated herein by
reference. The "deficiencies" are merely pretexts for Defendants to attempt to avoid
performing their obligations.
10
SAIDIS,
FLOWER &
LINDSAY
AlTORNEYS.AT-lAW
26 West High Street
Carlislc,rA
80. Plaintiff denies that he refused to communicate with Defendants. As
Defendants knew full well, Plaintiff was recuperating from surgery, and was offwork
for three weeks. Plaintiff did, however, refuse to capitulate to Defendants' demands
that he re-write the parties' agreements.
81. Plaintiff denies that Defendants at all times acted in good faith and in
accordance with the terms of the agreements between the parties. It is not in
accordance with the terms of the parties' agreements to declare the agreements null and
void when the time for the performances on which the Defendants rely has not even
arrived, merely to attempt to force Plaintiff to renegotiate all ofthe parties' agreements.
82. Plaintiff denies that he has failed to act in good faith and now seeks to
be rewarded for such failure.
WHEREFORE, Plaintiff requests judgment in his favor and against Defendants,
as stated in his complaint.
Date: ;::; -.2 2 - ob
By:
II
vmUFICATION
I hCfl:by verify [Imt the facts sel forth in the foregoing Reply 10 Defendants' New
MattCratctJ11C atlllcOfTCCllO tile bCSH\f fit)' knowledge, iut'ormatitlO ,llld lx:lh~f. I
uuMrsmnd thm fl1l~c 5t.ltcmcnlS herein lire subject to the pcnaltic,~ of IS PlI.C.S.A.
~kClion 4904 relaling [0 unsworn tillsificmion to UllIhorilies.
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Frank 1'. l'mnanilli
12
SAIDIS,
FLOWER &
LINDSAY
A1IDRNEys.i\T.IAW
26 West High Sueet
Carlisle, PA
CERTIFICATE OF SERVICE
I hereby certify that on February 22, 2006 I served a copy of the foregoing
reply to new matter upon Nathan C. Wolf, Esquire, attorney for Defendants, by causing
same to be mailed to him by first-class U.S. Mail, addressed to his office at 37 S.
Hanover Street, Suites 201-202, Carlisle, P A 17013.
13
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26 West High Street
Carlisle, PA
II
FRANK P. TAMANINI,
: IN THE COURT OF COMMON
: PLEAS
: CUMBERLAND COUNTY, PA
Plaintiff
vs.
: CNIL ACTION
JOHN T. MONGELLI,
GWENETH D. MONGELLI,
DEREK A. MONGELLI, and
DENISE A. MONGELLI,
Defendants
: No. 05-6808 Civil Term
/
:nlRYTRlALDEMANDED
JOHN T. MONGELLI and
GWENETH D. MONGELLI,
Husband and wife, and
DEREK A. MONGELLI and
DENISE A. MONGELLI,
Husband and wife,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PA
: No. 06-1908 Civil Term
: nlRY TRIAL DEMANDED
vs.
TRINDLE STATION, LLC and
FRANK P. T AMANINI, individually and as :
Agent for TRINDLE STATION, LLC,
Defendants
MOTION TO CONSOLIDATE
COME NOW, Frank P. Tamanini ("Tamanini") and Trindle Station, LLC
("Trindle Station"), through their attorneys, Saidis, Flower & Lindsay, pursuant to
Pa.R.C.P. No. 213 (a), and in support of their motion aver the following:
1. Tamanini commenced Civil Action No. 05-6808 in this Court (the
"Tamanini action") on December 30, 2005 to specifically enforce an agreement for the
sale by Defendants in that action, John Mongelli, Gweneth Mongelli, Derek Mongelli and
'" .
SAlOIS,
FLOWER &
LINDSAY
ATIOIINE\'SoATolAW
26 West High Street
Carlisle, PA
Denise Mongelli ("Mongellis"), and the purchase by Tamanini, of real estate in
Cumberland County to be known as "Trindle Station, Phase II."
2. The Mongellis commenced Civil Action No. 06-1908 (the "Mongelli
action") on April 3, 2006 to specifically enforce an agreement for the sale by the
Mongellis and purchase by Tamanini and Trindle Station of land in Cumberland County,
adjoining the Trindle Station Phase II land, known as "Trindle Station, Phase 1." The
Mongellis in that action also requested an injunction to prevent Tamanini and Trindle
Station from conveying any lots in Trindle Station Phase I until various alleged
obligations under the Phase I agreement were carried out.
3. The two cases involve, for the most part, the same parties. Tamanini is the
sole member and manager of Trindle Station, LLC.
4. The two cases involve common questions oflaw and fact. For example,
the question of why the Mongellis declared the Phase II agreement null and void was the
subject oftestimony in the hearing on the Mongellis' motion for injunctive relief in the
Mongelli action; the same question is central to the Tamanini action.
5. The consolidation of the two cases would promote judicial economy.
6. The Honorable Judge M. L. Ebert, Jr. has presided in the Mongelli action,
No. 06-1908.
7. Undersigned counsel spoke to Nathan Wolf, attorney for the Mongellis to
seek his concurrence in the instant motion. Attorney Wolf has not responded to counsel's
request within the time he promised to do so. Consequently, undersigned counsel has
been unable to find out whether attorney Wolf concurs or does not concur in the instant
motion.
2
" .
SAlOIS,
FLOWER &
LINDSAY
~IDIlNEY!loAT.lAW
26 West High Street
Carlisle, PA
II
WHEREFORE, Tamanini and Trindle Station respectfully request the Court grant
their motion and order that the above-captioned cases be consolidated for all purposes.
Respectfully submitted,
Saidis, Flower & Lindsay
Date: ~.;2'. Z-Ot} b
rl-.
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rian C. Caffrey, Esquire
Attorney ill #42667
26 West High Street
Carlisle, PA 17013
Phone: 717.243.6222
Fax: 717.243.6510
Attorney for Frank P. Tamanini and
Trindle Station, LLC
3
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SAlOIS,
FLOWER &
LINDSAY
~AT'IAW
26 West High Stteet
Carlisle. PA
,-
CERTIFICATE OF SERVICE
I hereby certify that on August 2-( , 2006 I served a copy of the foregoing
Motion upon Nathan C. Wolf, Esquire, attorney for John Mongelli, Gweneth Mongelli,
Derek Mongelli and Denise Mongelli, by mailing it to his office at lOWest High Street,
Carlisle, PA 17013.
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RECEIVED
AWi 3 0 2006
BY:
FRANK P. TAMANlNI,
: IN THE COURT OF COMMON
: PLEAS
: CUMBERLAND COUNTY, PA
Plaintiff
vs.
JOHN T, MONGELLI,
GWENETH D. MONGELLL
DEREK A, MONGELLI, and
DENISE A. MONGELLI,
Defendants
: CNIL ACTION
~ NO~6808 Civil T=
: JURY TRIAL DEMANDED
JOHN T.MONGELLI and
GWENETH D. MONGELLI,
Husband and wife, and
DEREK A. MONGELLI and
DENISE A. MONGELLI,
Husband and wife,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PA
: No. 06-1908 Civil Term
: JURY TRIAL DEMANDED
vs.
TRINDLE STATION, LLC and
FRANK P. TAMANINI, individually and as:
Agent for TRINDLE STATION, LLC,
Defendants
ORDER
AND NOW, this \S"'(
s~ te.1lI\ bU"
day of
, 2006, upon
consideration of the motion of Frank P. Tamanini and Trind1e Station, LLC to
consolidate the above-captioned cases, a rule is hereby issued upon John Mongelli,
Gweneth Mongelli, Derek Mongelli and Denise Mongelli, to show cause why the prayer
.
,
of the motion should not be granted. Rule returnable
').Q
service of this Order.
BY THE COURT:
'''l
Brian C. Caffrey, Esq.
26 W, High Street
Carlisle, P A 17013
Nathan C. Wolf. Esq,
lOW. High Street
Carlisle, P A 17013
2
days after the date of
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NATHAN C. WOLF, ESQUIRE
ATTORNEY In NO. 87380
10 WEST HIGH STREET
CARLISLE PA 17013
(717) 241-4436
ATTORNEY FOR RESPONDENTS
FRANK P. TAMANINI,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
vs.
JOHN T. MONGELLI,
GWENETH D. MONGELLI,
DEREKA. MONGELLI and
DENISE A. MONGELLI,
: CIVIL ACTION
~ No.: 05-6808 Civil Term /
: JURY TRIAL DEMANDED
Defendants
JOHN T. MONGELLI and
GWENETH D. MONGELLI,
Husband and wife, and
DEREK A. MONGELLI and
DENISE A. MONGELLI,
Husband and wife,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: No.: 06-1908 Civil Term
: JURY TRIAL DEMANDED
Plaintiffs
vs.
TRINDLE STATION, LLC and
FRANK P. T AMANINI, individually,
and as Agent for TRINDLE
STATION, LLC,
Defendants
CERTIFICATE OF CONCURRENCE
AND NOW come the respondents, John T. Mongelli, Gweneth D. Mongelli, Derek A. Mongelli
and Denise A Mongelli, by and through their attorney, Nathan C. Wolf, Esquire, and hereby cenify they
~.
concur in the relief requested in the Movant's Motion to Consolidate, provided Respondents are not
prejudiced by such consolidation concerning the entry of an Order for Injunctive Relief.
Dated: September 29,2006
N an C.
10 West
Cadis A 17013
Supreme Court LD. No. 87380
(717) 241-4436
Attorney for Respondents
.
- "
NATHAN C. WOLF, ESQUIRE
ATTORNEY In NO. 87380
10 WEST HIGH STREET
CARLISLE PA 17013
(717) 241-4436
ATTORNEY FOR RESPONDENTS
FRANK P. TAMANINI,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
vs.
: CIVIL ACTION
JOHN T. MONGELLI,
GWENETH D. MONGELLI,
DEREKA. MONGELLI and
DENISE A. MONGELLI,
: No.: 05-6808 Civil Term
: JURY TRIAL DEMANDED
Defendants
JOHN T. MONGELLI and
GWENETH D. MONGELLI,
Husband and wife, and
DEREK A. MONGELLI and
DENISE A. MONGELLI,
Husband and wife,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: No.: 06-1908 Civil Term
: JURY TRIAL DEMANDED
Plaintiffs
vs.
TRINDLE STATION, LLC and
FRANK P. TAMANINI, individually,
and as Agent for TRINDLE
STATION, LLC,
Defendants
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on the date indicated below, I caused a true and correct copy
of the foregoing Certificate of Concurrence to be hand-delivered to the below-listed party, in the
instant matter, addressed as follows:
Dated: September 29,2006
Brian Caffrey, Esquire
Saidis Flower & Lindsay, P.C.
26 West High Street
Carlisle, PA 17013
olf, Esquire
or Respondents
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FRANK P. TAMAN1til,
PLAIN/TIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
JOHN T. MONGELL'I,
GWENETH D. MaN ELLI,
DEREK A. MONGE LI AND
DENISE A. MONGE L1,
DEF NDANTS
NO. 05-6808 CIVIL
JOHN 1. MaNGEL I AND
GWENETH D. MO GELLI,
Husband and Wife, nd
DEREK A. MONGE LI AND
DENISE A. MONG LLI,
Husband and Wife,
PLAINTIFFS
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
TRINDLE STATION, LLC AND
FRANK P. TAMANINI, individually,
And as Agent for I
TRINDLE STATIO~, LLC,
DEFENDANTS : NO. 06-1908 CIVIL
ORDER OF COURT
I
AND NOW, ~his 4th day of October, 2006, upon consideration of the Motion of
Frank P. Tamanini fnd Trindle Station, LLC to consolidate the above captioned cases
I
and upon receipt of It he Certificate of Concurrence filed by the attorney for the
respondents, IT IS ~EREBY ORDERED AND DIRECTED that the above captioned
cases are consolid~ted for all purposes.
By the Court,
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J.
M. L. Ebert, Jr.,
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~rian C. Caffrey, Esquire
Attorney for Frank Tarllanini and
Trindle Station, LLC
tfJathan Wolf, Esquire
Attorney for the Resp~ndents
i
I
,
bas
SAIDIS,
ROWER &
LINDSAY
A1'RJRNEYSoAX.I.AW
26 West High Street
Carlisle, P A
"
Frank P. Tamanini,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
John T. Mongelli,
Gweneth D. Mongelli,
Derek A. Mongelli and
Denise A. Mongelli,
Defendants
NO. 05-6808 CIVIL /
John T. Mongelli and
Gweneth D. Mongelli,
Husband and Wife, and
Derek A. Mongelli and
Denise A. Mongelli,
Husband and Wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
Trindle Station, LLC and
Frank P. Tamanini, individually
And as Agent for
Trindle Station, LLC,
Defendants
NO. 06-1908 CIVIL
PRAECIPE TO SETTLE AND DISCONTINUE
TO THE PROTHONOTARY:
Please mark the above captioned actions settled and discontinued, with prejudice, as to all
claims and counterclaims.
Date: C2/9 h7
.
Saidis, Flower & Lindsay
<:..~'~ EYf I . (" -J'
i;~ ~~ ID
Suz e C. Hixenbaugh, Esqui
A orneyID #91641
Robert C. Saidis, Esquire
AttorneyID #21458
26 West High Street
Carlisle, P A 17013
Phone: 717-243-6222
Attorneys for Plaintiff and Defendant
Dale: z-4k 1
!
olf, Esquire
o y ID #87380
est High Street
Carlisle, PA 17013
Phone: 717-241-4436
Attorneys for Plaintiff and Defendant
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