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Home My WebLink About06-3074 COURT OF COMMON PLEAS COMMONWEALTH OF PENNSYLVANIA Claimant, ME No.: IAL!) DAVID NEUMAN, v. TARGET CORPORATION, Owner. MECHANICS' LIEN CLAIM 'ef: r- $', 5etbot,l.r'f\ .01)' 1. Claimant, DAVID NEUMAN, , files this claim against the improvements and property at Carlisle Crossing Westminster Drive, Carlisle, Pennsylvania 17013, for the payment ofa debt due to cl imant as a subcontractor for labor, skills and superintendence furnished by c aimant in the erection and construction of the improvements, and in support makes the llowing statement: 2. The Owner of the property is Target Corporation with usiness address at Westminster Drive, Carlisle, Pennsylvania I7013. The improve ents and the property which are subject to the claim are located at 32 I York Road and airview Street, Carlisle, Pennsylvania in South Middletown Township, Cumberland Coun y, Pennsylvania and more particularly described in the Deed arnIexed hereto as Exhibi "A". 3. The Claimant contracted with AFC Washco-Carlisle C ossing, LP ("contractor"), who contracted directly with the Owner. 4. The labor, skills and superintendence hereinafter refe ed to were furnished pursuant to an oral contract entered into with contractor on the 24 day of January, 2005, wherein the claimant agreed to furnish certain labor, skills and su rintendence, an itemized statement of which is attached as Exhibit "B" and the co tractor agreed to pay for such services and work. 5. The labor, skills and superintendence were furnished i and about the erection and construction of Carlisle Crossing, a shopping center located i South Middleton Township, Cumberland County, Pennsylvania. 6. The amount claimed to be still due and chargeable ag nst the property is $405,500, being the agreed-on contract price. The claimant has n note or other collateral security for his claim. 7. The claimant began working on the Carlisle Crossing January 24, 2005, and the last day claimant provided labor, skills the Carlisle Crossing project was January 31, 2006, roject on or about d superintendence on , 8. Written notice of the Intention to file this claim was ly served on the Owner on April 17, 2006, by First Class Certified Mail Return Receipt equested, as follows: Steve Houser New Store Construction Target Corporation 1000 Nicolett Mall, TRTK 740 Minneapolis, Minnesota 55403 Craig Davenport Target Corporation 21 Cottonwood Court Hurdyston, New Jersey 07460 David Lima Target Corporation 1000 Nicolett Mall Minneapolis, Minnesota 55403 9. This lien is claimed from January 24, 2005, and agai t the fee simple interest of the owner in the property. VERIFICATION STATE OF NEW YORK ) ): SS. CITY OF ONONDAGA ) David Neuman, being duly sworn according to law depos s and says that he is the claimant herein and that the facts set forth in the foregoing Mech ics Lien are true and d and sworn to before me d y,2006. . ,1')...0 Fa.yc.+ correct upon personal knowledge. S~NORA J. S~BOURIN Notary PubliC State Of New Yol1c No. 02SA5008258 Oualllled In Onondaga CouarrtyJ<} Commission Expires February 1 '.2u.L.j LK~)b/f A- . J" " /; ." '7'\ . , I '2>aLo\ . ~~ ~ v.....c ~;:~~cr,T r. :;~GLE _ ,.,:,~:.:":::~:_1 :,"F f.lr~':; .;. ,'\ I'" '. MADE TIlE '/JP-- day of (L~tfMO fll'1 9 ~6 ~J ,2005. BETWEEN ALBERT JOHN BLAIR III and ED STANTON BLACKSMITII, Successor Trustees of the BLACKSMITH LIVIN TRUST dated November 7, 1991 and ALBERT JOHN BLAIR 111, ED D STANTON BLACKSMITH, GARY LIST BLACKSMITH JR. and 10 MICHAEL BLACKSMITII, as legal title holders, and W ASHCO - CARLIS E CROSSING, LLC, of Me.. Y"'rk, Me.... lI'lllk,as equitable title holder, hereinaft r referred to as: Grantors, and TARGET CORPORATION, a Minnesota Corporation, th its principal office at 1000 Nicolett Mall, Minneapolis, Minnesota 55403, herei after referred to as: Grantee, In consideration of One Dollar ($1.00), the receipt wh acknowledged, the Grantors do hereby grant and convey to the Grant and/or assigns: ALL those certain 2 tracts or parcels of land situate in South Middl Cumberland County, Pennsylvania, located along Interstate 81 (So American Legion Memorial Highway) said tracts being as shown "PreliminarylFinal Subdivision Plan for Carlisle Crossing" as pre Herbert, Rowland and Grubic, Inc. dated 8/2104 and more fully bo described as follows: TRACT I: BEGINNING on the western Right-of-Way Line ofIntc:rstate Rout 81 (S.R. 0081 American Legion Memorial Highway) and the intersection of the . iding line between Lots 2 and 3 of the aforementioned plan; thence oontinuin along the same the following thirteen (13) courses and distances, (1) South 5 degrees 27 minutes 38 seconds East 531.70 feet, (2) South 31 degrees 32 minu s 25 seconds West 31.21 feet, (3) South 58 degrees 27 minutes 38 seconds East 1 6.34 feet, (4) North 3 I degrees 32 minutes 27 seconds East 7.90 feet, (5) South 5 degrees 27 . ., T-l6 minutes 35 seconds East 88,33 feet, (6) North 31 degrees 32 minu es 22 seconds East 59,70 feet, (7) South 58 degrees 27 minutes 38 seconds East 41.50 feet, (8) South 31 degrees 32 minutes 25 seconds West 525.11 feet, (9) No 58 degrees 27 minutes 38 seconds West 396.17 feet, (10) South 31 degrees 3 minutes 25 seconds West 28.27 feet, (II) North 58 degrees 27 minutes 38 s nds West 220.44 feet, (12) North 31 degrees 32 minutes 22 seconds East 18. feet, (13) North 58 degrees 27 minutes 38 seconds West 530.26 feet, to the estern Right- of-Way Line ofInterstate Route 81 (S.R. 0081 American Legion emorial Highway) and the intersection of the dividing line between Lots 2 d 3 of the aforementioned plan; thence continuing along the western Right-o -Way Line of Interstate Route 81 (S.R. 0081 American Legion Memorial High y) the following four (4) courses and distances, (1) by a curve to the left ving a radius of4673,75 feet and an arc length of60.36 feet and a chord of No 31 degrees 19 minutes 14 seconds East 60.36 feet, (2) South 59 degrees 02 minut s 58 seconds East 15.98 feet, (3) by a curve to the right having a radius of 460. feet and an arc length of287.78 feet and a chord of North 48 degrees 52 miuut 23 seconds East 283,11 feet, (4) North 66 degrees 47 minutes 44 seconds East 05..98 feet being the place of BEGINNING, Containing 12,209 acres. Tract #2 BEGINNING at II 5/8" Iron Pin (found), being South 60 degrees 15 min 58 seconds East 0001.27 feet from II PK Nail (found) on the southeasterly Right-o Way line of Fairfield Street (f-515); thenceaiong lands noworfonnerlyofLce H. orrison, WIlliam H. Bixler, Sr., Robert L.. Rose, and William E. Albert North 36 54 minutes 01 seconds East 615,91 fuet to a in" Iron Pipe (found), aco oflands now or formerly of Paul E. Rice; thence along the same North 40 degrees 07 . utes 29 seconds East 100.00 feet to a 1/2" Iron Pin (found), a comer of lands now or r. y ofJackD. Bailey; thence along the same and lands now or fonnerly of Robert E. North 37 degrees 13 minutes 07 seconds East 416.54 fuetto a I" Iron Pipe (found) on the westerly Right-of-Way line of American Legion Memorial Highway, !nterstate R ute 81, S.R. 0081; thence along the same the fuUowing five (5) courses lIlId . (1) South 09 degrees 50 minutes 56 seconds West 264.89 feet to a 518" Iron Pin (fa , (2) by a curve to the right having a radius of915.37 feet, lIlId arc distance of356, feel, and a chord of South 2i degrees 01 minutes 01 seconds West 354.59 feet, (3) uth 57 degrees 48 minutes 54 seconds East 16..00 feet, (4) by II curve to the right having a radius of4,493.75 feet, and arc distanceof565.67 feet, and a chord of South 35 grees47 minutes 28 seconds West 565.30 feel, (5) North 50 degrees 36 minutes 1 seconds West 16.00 feet to an Iron Pin (found), a comer oflands IWW or fonnerly ofLo 2, Tract 2, th= along the same North 51 degrees 11 minutes 49 seconds West 23 .49 feet to a 5/8" Iron Pin (found), the place of beginning. Containing 5.025 Acres 6QOK2G8 ~Lf2384 " UNDER AND SUBJECT to tenns and conditions of the ubdivision and Land Development Plan for Carlisle Crossing, South Middl ton Township, Cumberland COWlty, Pennsylvania dated ~,bc.: 27 , and recorded ,4-f4'L fa/hi., in Plan Book 2{L, Page/Qfi. UNDER AND SUBJECT to South Middleton Township/W for Final Approval between the Township of South Middleton and ashco-Carlisle LLC dated February 9, 2005 and recorded February 10,2005 in Cum land County, Pennsylvania Misc. Book 715 Page 659. BEING part of the same premises which Dr. Gary L. Blac Successor Trustee of the Blacksmith Living Trust, by his deed date August 2, 1993 and recorded in Cumberland County, Pennsylvania, Deed B k 101, Page 939, granted and conveyed unto Trust B of the Blacksmith Living rust, Grantor herein. The said Dr. Gary L. Blacksmith, Sr.. having died October I , 199&, Albert John Blair III and EdmWld Stanton Blacksmith, succeeded as Suc sor Trustees. Albert John Blair III, Edmund Stanton Blacksmith, Gary List B1ac ith Jr. and John Michael Blacksmith join herein as Grantors in their capacities the sole beneficiaries of the Blacksmith Living Trust. AND the said Grantors hereby covenant and agree that they will warrant specially the property hereby conveyed. IN WITNESS WHEREOF, said Grantor has hereunto set his hand seal the day and year first above written. (SEAL) th individually and SIGNED SEALED AND DELNERED IN mE PRESENCE OF: By: Albert John Blai as Trustee By: Edmund Stanton individually and as T (SEAL) - both , (SEAL) BOOK 2 PACt~ 385 ) (SEAL) President The spouses of Grantors Edmund Stanton Blacksmith and Gary Li t Blacksmith Jr. join in this conveyance to release whatever rights they may be construed to have. SIGNED SEALED AND DELIVERED IN THE PRESENCE OF: lal (SEAL) COMMONWEALTH OF PENNSYLVANIA ) ): 5S. COUNTY OF CU ) On this, the y of 5. before a Notary Public. the undersigned officer, personally ap ed , Who acknowledged mselfto be a Member of Washco - Carlisle Crossing, LLC, t he as such Member bein authorized to do so, executed the foregoing instrume rthe p s therein contained by si lhe name of the said Washco - Carlisle Crcs . LC by himself as su ember. IN WI~ WHEREOF. I hereunto set my hail (SEAL) NotaI)' Public BOOK PACf~ d36 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND On this the 15th day of April, 2005, before me, a Notary Pub' in and for the Commonwealth of Pennsylvania, personally appeared Arthur Feffe an who acknowledged himself to be the PreSident of APC Carlisle, LLC, aN w Jersey Limited Liability Company. sole Member of APC Washco-Carlisle Crossing. LLC, a Pennsylvania Limited Company, and that as such President being orized to do so, executed the foregoing instrument on behalf of such Limited Liabilit Company for the purposes therein contained and in the capacity therein stated. IN WITNESS WHEREOF, I hereunto set my ""'" ;""H1f9~8:-- ffll'll'l ~l'11"l ",'::J" ... C"') (""lI,"~(!::""~"'" ;:..,.~ l"'t" _. o_-fCQl:.'I j;~;!..~k-X'" =-=~ j :Z::::J: I I .. .---.3: :.::a:. F;!:J (J.l "Ii 5.......3> H_;:'~~ ~..:' ,-,,:;>;:1<::' _c.:J..."",,_~ f;:: .P <: """ ~ ::r: ::z j2 -I =: :;,-:> ~2'i~~...... ,...,r""'t"" ':f:i ul' .,,~L aa>> !;.;,. i! gl $ .. :c =-: - .': $ e;g trI "" ~ =r;:it ;:It. 0".1 C").--1 .... X> _-4~ ~q- ;5-;(-:1 -"JOt;\' ~.,._.....~ -I!......~::; ,....-..-t..::. ~:??. 0;;;:;8;0 ""'9.511:"il __5':09 ,..., ~~~~~~,?~~~?.. ;:- ~_ c. :;:. ~ .0 c> 00 c.<1 .0 00 .0 5:!! ~ ~OOC> <:> C>~ e..<r.:> C)<.~_~_ ~} r? ~ -< '" i9' ~, _ ""T,," g"" ~ .. :!: ~ ... ., S' .... .~ ~ - ,~ 8 '.n , ::: ,~ "J ~, ...- ~ - t..,). 8 "', ,.., ~ [..j N .;:I;l .. ~, ~, ~ ,~. - n ~ m ~ - ,. ~ 5~g "'. ~- ......;::i ~q ,\I "" ~ m ~I-' .., ~~ ;::;~ sr .., '0 '" .,. a Boi 268 fAGEZJtl7 ,-" ~ _0 t:i - COMMONWEALTH OF PENNSYLV ANIA ) ): ss. COUNTY OF CUMBERLAND ) On this, the /.JJlJ...... day of I1~L ,2005, before me, e undersigned officer, personally appeared Albert John Blair, Ill, both individually and as T ee, known to me or satisfactorily proven to be the person whose name is sllbSCIibed to the . thin instrwnent, and acknowledged that he executed the same for the purposes therein con . ed and in the capacity therein stated. IN WITNESS WHEREOF, I hereunto set my hand and (SEAL) COMMONWEALTH OF PENNSYLVANIA ) ): 55. COUNTY OF CUMBERLAND ) On this, the / J fl...- day of 11 A, : ) , 2005, before me, personally appeared Edmund Stanton Blac~ both individually and as satisfactorily proven to be the person whose name is subscribed to the . thin illStrWnent, and acknowledged that he executed the same for the purposes therein contain d and in the capacity therein stated. IN WITNESS WHEREOF, I hereunto set my hand and (SEAL) " Notary Public ) ): as. COUNTY OF CUMBERLAND ) On this, the 13 'If..... day of ~L ,2005, before me, th undetSigned. officer, personally appeared CiaIy List BlacksmitH, Jr., known to me or satisfactorily roven to be the person whose name is subscribed to the within instrument, and acknowledged that h executed the same for the purposes therein contained. NOTARIAL SEAL CTORIA L. ono NOTARY PUBLIC CA lISl~ 90110" CUNBEIl1.ANO COUNT"( COMMISSION txl'IRES OEC. 2 2006 COMMONWEALTH OF PENNSYLVANIA IN WITNESS WHEREOf, I hereunto set my hand an t (SEAL) 800K ,',. , COMMONWEAL TIf OF PENNSYLVANIA } ): 55. COUNTY OF CUMBERLAND ) On this, the /3fJ- day of I1~L ,2005, before me, e undersigned officer, personally appeared John Michael Blacksmith, known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument, and acknowledged that executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand HCia1 seal ;;j~. Notary Public (SEAL) COMMONWEAL TIf OF PENNSYL VANIA ) ): 5S. COUNTY OF CUMBERLAND } On this, the j(]{A. day of ;JW!.- ,2005, before me, personally appeared Margaret A. Blacksmith. known to me or satisfactorily whose name is subscribed to the within instrument, and acknowledged that the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand ~cial seal. Lk Notary Public undersigned officer, roven to be the person executed the same for IN WITNESS WHEREOF, I hereunto set my hand (SEAL) COMMONWEAL TIf OF PENNSYLVANIA ) }; ss.. COUNTY OF CUMBERLAND ) On this. the j?-- day of ;2jtU L . 2005, before me, personally appeared Eldora A. Blacksmith, known to me or satisfactorily whose name is subscribed to the within instrument, and acknowledged that h the purposes therein contained, undersigned officer, ven to be the person executed the same for (SEAL) NOTARIAl. SEAL VI ORIA l. OTIO. NOTARY PUBLIC CAR SLE 80R~" CUMBERLARCO C02UOKIY06 MY OMMlSSlu. EXPIRl:S DE , eool( PAtE2389 .;, ,".'" I hereby certify that the precise residence and complete post offi Grantee is ~ Mninistratim. 1l!rget: O:>rp:Jraticn, 1000 Ni<x>llet, Iotl 55403. address of the within 1, n>&-315S, ~lis, sq. eO(Jl( P.Ald!~ . . ..:.... . ~~u}d.rJlt. . . OF ~~)a..........c..-. COUNTY OF r ~b"....Cl7'-of.. On this ~ day of.LkJ. . 2005, before me, the unders gned officer, personally appeared Albert JOM Blair, III, Trustee of the Blacksmith iving Trust, known to me or satisfactorily proven to be the person described in the oregoing instrument, and acknowledged that he executed the same in the capaci therein stated and for the purposes therein contained. IN WITNESS __,I b."''''''r c;' Notary Public ~~Ad-1~~ . STATE OF t/tl.'"fo,A. "-' COUNTY OF fL- U~ Onthis 1:Jt" dayof L),v.;O 2005. before me, theundersi edofficer, personally appeared Edmund~ksmith, Trustee of the Blac mith Living Trust, known to me or satisfactorily proven to be the person described i the foregoing instrument, and acknowledged that he executed the same in the capaci therein stated and for the purposes therein contained. IN WITNESS WHEREO_, I h_~ "':2A: offici<!"". Notary Public N TARlAl SEAL VICTORIA L ono H01A1!Y PUBLIC CARLISLE 80R . cUMBERlANO COUNTY /off MMISSI N EXPIRES OEC 2 2 6 \ (alif)" this to be recorded , ('ul,\u~r1and County PA , . .,_,.::.,A....:T"" 1'" :J ~ . 1..... Recorder of Deeds ~~o(, 68 PAGE2391 '.,. . . ~\iIEX":wr .. RECORDER'S USE ()NL Y -... COMMOtMtEAt'n-l Of' PENNSYLVANIA. CS'AFmtENf OF RE'VEHLIe BURE.W OfIHDMDUAL TAXES DEPT.:ze0e03 HAARtS8UAG, PA 111.2B00603 REAL TV TRANSFER TAX STATEMENT 01= VALUE a.deN Pogo See Reverse for Instructions A NlITlO Robort C. Saidis. Esq, 717 243-6222 Zip Code CIty 26 We.Uf Street, Carlisle. PA 17013 B TRANSFER DATA I nee men Blacksmith Livln Trust c/o Iil2ruro S. Blacksnith Pro rt Administration 222 Scuth GJadalupe .4 . 1000 Nirollet Mall 'IPS 315 ~ ~e Code ~ &Bdl. CA 90277 C PROPERlY LOCATION s I>tl 5403 ~, cugh South Middleton T ownshi ox . Lot 3 I'relimlFinal Sub Plan for Carlisle Crossing CwnberlandCoun 5:luth Midiletcn l'alt of 40 oe 0575 001 0 VALUATION DATA ideratiCn obi $2,000.000.00 + $2. 0.000.00 . 6, man "' actor .. IU. X E X MPTION DATA I, "" ... 0\ 100\ 2. Check Approprt.Y Box Below for Exemption Claimed o V\4II or Intestate suooession o Tran_lo Industri.1 Development Agency, o TiansIer II> a lNot. (AtIach oomplele t:opy of WSlagrHment Idemilylng all beneficiaries,) o Transl1lr between ...inc:i~al and agent. (A\tacl1 oomplete copy o~ agency/slraw P3:t/ agreemenl.) o Ttanofenllo the Comm~, the Un'eeI States ard InstrumentalItIeS by gill. dedication, condom (~eondemna1lon or In lieu of condemnation, attach copy of resolutlo,,) o TnmsN:r from mortgagor to a holder of a mortgage in default. Mongage BooK Number o COrrec:tiYe or <:orl!lnnatooy deed. (Attach complet. copy of the prior deed being corrected or conft (Name of Oe<odt., (E. Fl. """'*1 tion or in Heu of ccndemnatlof\. - Page Number o Statutory corporate consoUdation. merger or division. (Alt8ch copy of artides.) o 0tr'Ier (Pfease explain exemption claimed, if other than "steel above.) . Under penalties of laW, I dedare that I have examined this St:JJ"'te,\t, including accompanying informatl n, and to the best of mv knowledge and belief. it is true, correct and eomplete. .,/ Jf'IlUrc OI'1"CSporl 0 esportSl il Party c:ae. i."-- TO RECORD TIlE DEED. . LXhlh;+ 13 . . , . , EXHIBIT "B" LABORlMATERIALS DATE FURNISHED V <\L UE/COST FURNISHED Negotiate and finalize December 2003 to January $36 000 contracts for civil 2004. engineering (HRG) and architecture (Dal-Pos) Supervise change in February 2004 to $12 ,000 pavement design, materials September 2004 to be utilized, lighting, landscaping and irrigation. Oversee and supervise submittal for Highway Occupancy Permit. Coordination and oversight of building design, including, but not limited to, foundations, structures, roof slopes, elevations, material for construction, mechanical electrical, plumbing, sprinkler, steel and storefronts. Oversee negotiations with Anchor stores to finalize architectural building and pylon design. Complete site development agreements for construction of Kohl's and Target stores, including site development reimbursements from Kohl's and Target. Negotiate and finalize site I 0/04-12/04 $54 000 and building construction contracts with Granger Construction Oversee and manage 01/05-6/05 $10 ,000 construction, including but not limited to, store layouts, floor finishes, sprinkler, loading, electrical, HV AC requirements, bathrooms, stockrooms, storefronts and approval for signage and . . . . . . i pylon panel location and I size for various tenants. Direct and manage 07/05-10/05 $90 000 finalization of construction of small tenant spaces, coordination with Dal-Pos and Granger Construction for delivery of small tenant spaces Direct and oversee 12/04-1/31/06 $54 000 construction of on-site and off-site improvements and building to maintain overall schedule of delivery to Anchor and category killer stores. Oversee and supervise delivery and acceptance of building pads to Anchor stores. Oversee and manage construction details to ensure compliance with construction schedule for on-site and off-site improvements to meet opening schedule, Oversee and manage construction details to ensure all conditions are met for Landlord's timely delivery to small tenants for fixture and merchandising for opening. Supervise finalization of construction change orders . , ~~~ ~~ 'f;--J _ ~ a\ ~ t ~ c;.-\ ~ t;;- ~ ~ -, ) ~ I. _ C1 C r-' ~..~ .~~'_'.~1 . ~,... ;:r: -.:: ~;:'- (,.) Q o -n ~~ r:1 ~~..c ,- -0 h'l --'10 L U -ri ~-~: .:'~,~ L)(n --I ~,-" ~J:J "" 7:'~ -' c,'l. , . ......< Gzdldb~f.cr Se~ J T7V{.f Index #: 06/3074 rJ Date Purchased: 05/30/06 Court of C,<l"" ,",0 VI P!e....s County of CUWlbifl",,,,J Plaintiff Defendant David Neuman vs Target Corporation County of _~~e..pi,J :ss: , being duly sworn deposes and says over t e age of eighteen years and resides 'uJ(!t.! deponent is not a p~rty in the State of I--lJ. I\l ",{}o 70 That on ~-/;{-00 at J...c-O-S-/lm at deponent served the w1thin Mecha010S' L1en on Target corporation defendant therein named. INDIVIDUAL AD CORPORATION B~ Suitable age Person Co Affixing to Door, etc. DO Mailing use with C or D E 0 Use with D FO VOID w/o Description Use with A,B & C Notary--> By Personally delivering to and leaving with said and that he knew the person to be the person mentioned and descr1bed 10 sa1d '\G, CO ~(L ~ h\ jJ ~tL( {,lZ- t' A/ e to e t e , Service was made in the following manner after your deponent was unable with due diligence to serve the defendant in person: By delivering a true copy thereof to and leaving with a person of suitable age and discretion at the said premises being the defendants - respondents (dwelling place) (usual place of abode) (place of business) within the State of By affixing a true copy thereof to the door of said premises. The same being the defendant I S (dwelling place) (usual place of abode) (place of business) within the State of Deponent completed service under the last two sections by depositing a coPY of the in a ~ostpaid, properly addressed envelope in an off~cial exclus~ve care and custody of the United States Post Office on the legend personal and cont1dent1al. depos~tory under the in the State of in an envelope bear1ng Previous Attempts Deponent had previously attempted to serve the above named defendant/respondent. A Description of the defendant or other person served o{9behalf of the defendant is as follows: A4__ t? Approx Age ~~ ...;APprox Weight l/r Approx Height t,o / ". Sex ~ Color of Sk~n h,'~ Color of Ha~r ~~~ Other /' /---) Deponent asked the person spoken to whether the defendant was presently in the military. se~~s~~~ Unit~~rStates Government or on active duty in the military service in the State of New York and was i.nformed ~e _ was ,riot. Your deponent further says that he/she knew the person so served to be the person me~~~d'an~;~cribed in said papers defendant/respondent therein. Your deponent is over the age of 18 years and ~~ot a,~~y to thi~action. / . ,/ / scon AGRNI -...- tlllFinlttDto Sworn to before me this e..e 371 Merri 225 Broadway SUPREME JUDICIAL SERVICES, INC. #202 - Rockville entre! N.Y. 11570 - (516) 825-7600 York, N..Y. 10007 - (212) 319-7171 FAX (516) 568-0812 " ',>' i,,;,J.'\ ~y,~\<"."t .i n' 0 ~, (,) ,;,:",? ~i, ~-''-:':) -'fi 0-' 1",' U) -n c.,(; ::2 ii'" ! -;, . . . t' rf'lM'" DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3073 MECHANICS' LIEN KOHL'S PENNSYL VANIA, INC., Owner DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3074 MECHANICS' LIEN TARGET CORPORATION, Owner DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3075 MECHANICS' LIEN AFC WASHCO-CARLISLE CROSSING,LP, Owner PETITION FOR DISCHARGE OF MECHANICS' LIEN UPON ENTRY OF SECURITY Petitioners, AFC WASHCO-CARLISLE CROSSING, LP, KOHL'S PENNSYLVANIA, INC., aDd TARGET CORPORATION, by their attorneys, Broujos & Gilroy, P.C., set forth the following: 1. The above three Mechanics' Liens have all been fded pro se by Claimant David Neuman (Neuman). 2. Examination of the three Mechanics' Liens captioned above indicates that all three Liens are based upon an allegation that Neuman contracted with AFC Washco- Carlisle Crossing, LP (AFe) (see paragraph 3 of all three Mechanics' Liens). - 1 - 3. Neuman further alleges in each Mechanics' Lien that has been filed that he provided various superintendence and certain labor and skills in superintendence based upon a contract entered into with AFC on January 24, 200S (see paragraphs 4 of each Mechanics' Lien). 4. All three Liens further allege that the work Neuman performed was furnished for the erection and construction ofthe Carlisle Crossing Shopping Center (Carlisle Crossing) located in South Middleton Township, Cumberland County, Pennsylvania (see paragraph S of all three Mechanics' Liens). S. Neuman claims that he is owed $40S,SOO.00 for his work performed and has flied a separate Mechanics' Lien against a parcel owned by Target Corporation (Target) at Carlisle Crossing, a separate parcel owned by Kohl's Pennsylvania, Inc. (Kohl's) at Carlisle Crossing and a separate parcel owned by AFC. 6. Neuman alleges that he began working on the Carlisle Crossing project on or about January 24, 200S and provided work through January 31, 2006 (see paragraph 7 of each Mechanics' Lien). 7. Although Neuman has flied a Mechanics' Lien against three separate properties in the amount of$40S,SOO.00 for each property, the Liens themselves confirm that Neuman's total claim is only $40S,SOO.00. 8. Neuman has no contractual relationship with Kohl's or with Target Corporation. 9. Neuman's only alleged contractual relationship is with AFC, which allegation AFC vigorously denies. 10. Pennsylvania Law at 49.P.S. Section IS10 allows for the discharge of Mechanics' Lien upon payment into Court ofthe amount ofthe claim or upon entry ofsecurity. -2- 11. AFC on behalf of itself and on behalf of Target and Kohl's desires to have all three Mechanics' Liens discharged upon the posting of security with the Court by AFC as set forth below. 12. Petitioner AFC desires to use Citizens Bank of Pennsylvania to post a Letter of Credit for security in order to discharge the three Liens that have been filed. Citizens Bank has previously on behalf of AFC posted Letters of Credit with South Middleton Township in excess of $2,200,000.00 and with Penn DOT in excess of $1,300,000.00 relating to the Carlisle Crossing project, said Letters of Credit having since been significantly reduced based upon work performed at Carlisle Crossing by AFC. 13. Petitioner AFC desires the Court to accept a Letter of Credit as security posted by Citizens Bank in the amount of $200,000.00 and to provide for the discharge of all three Liens upon the posting of said Letter of Credit. 14. Although the claim fIled by Neuman totals $40S,SOO.OO, Petitioner suggests that a lesser amount of $200,000.00 is authorized pursuant to 49 P.S. Section ISI0(D) and based upon the following factors which are of record in the three Liens fIled in this case: a. Neuman asserts at paragraph 7 of all three Mechanics' Liens the following: The Claimant began working on the Carlisle Crossing project on or about January 24, 200S, and the last day Claimant provided labor, skills and Superintendence on the Carlisle Crossing project was January 31, 2006. b. Neuman alleges in paragraph 4 of all three Mechanics' Liens that he entered into a contract with AFC on January 24, 200S for the performance of saidservices. -3- c. Paragraph 4 of all three Mechanics' Liens incorporates a document designated as Exhibit 'B' that suggests it is an "itemized statement" of the work performed and the amounts agreed to be paid. A copy of said Exhibit 'B' is attached hereto and marked Exhibit 'A' for this Petition. d. Examination ofthe deeds into AFC, Target and Kohl's (said deeds are attached as Exhibit 'A' to each Mechanics' Lien) reveals that neither Kohl's, Target or AFC became owner of the subject properties until April 2005. Furthermore, any work done by Neuman prior to April, 2005 was done on his own behalf because Neuman was an equitable owner ofthe property prior to April of 2005. e. Exhibit 'B' of each Mechanic Lien specifically describes the labors and materials furnished along with the dates furnished and values/costs. The fignres on Exhibit 'B' only verify a claim in the amount of $252,000.00 for work performed from January 5, 2005 with Neuman claiming the contract was entered into with AFC on January 24, 2005. There is no basis in the claim as rtled for compensation to Neuman for any work allegedly performed prior to January 24, 2005, and the documentation provided only purports to substantiate a claim in the amount of $252,000.00 for work from January 5, 2005. f. There is no written documentation in the nature of a written contract confirming any agreement between Neuman and AFC as alleged in the Mechanics' Lien claim s filed in these three cases. g. Neuman suggests in paragraph 4 of each Mechanics' Lien that the work was performed pursuant to an "oral contract". h. Neuman never submitted any invoices to AFC making claim for any of the alleged monies owing as claimed under the three Mechanics' Liens. -4- i. AFC never received from Neuman or any legal counsel for Neuman a detailed statement outlining work performed or a written demand for payment of a specific sum in connection with work allegedly performed by Neuman on Carlisle Crossing. j. AFC vigorously asserts that there was never any written or oral agreement with Neuman for the payment to Neuman for any work performed in connection with the Carlisle Crossing project that would form the basis of Mechanics' Lien. k. Neuman has named Target and Kohl's in the Mechanics' Liens merely in an effort to interfere with contractual relationships that AFC enjoys with Target and Kohl's. 15. ~itizens Bank is prepared to post a Letter of Credit in the amount of $200,000.00 (see txhibit 'B' attached) as security for discharge of the three Liens in question, and AFC $uggests that said Letter of Credit is satisfactory security for Neuman pending resolution ofthe meritless claims that Neuman asserts in this matter. 16. Vpon the posting of security by AFC as set forth herein, AFC requests this Honorable Court to order the posting of the security identified above contingent upon Neuman ,roceeding with initiating litigation against AFC with the f"tling of a complaint within ~irty days of AFC's posting of said security, and to further order that upon Neuman's ~ure to file said complaint within this time frame said security shall be released. , 17. the claims Neuman has asserted in the Mechanics' Liens and any ultimate claims *euman would assert in litigation against AFC on this matter are arbitrary and are Iberitless claims advanced only in bad faith by Neuman, and said claims will subject Nfeuman to the assessment of attorneys fees incurred by AFC, Kohl's and Target ~ursuant to 42 P A.C.S.A. Section 2503(9). -5- WHEREFORE, Petitioners request your Honorable Court to schedule a hearing to address the entry of security for the discharge of the three Mechanics' Liens referenced above. Date: ~uly 18, 2006 Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. Attorney 10. No. 29943 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 Attorney for Petitioners -6- i LABORIMATERlALS I FURNISHED Negotiate and finalize contracts for civil engineering (HRG) and architecture aI-Pos I Supervise change in pavement design, materials to be utilized, lighting, landscaping and irrigation. Oversee and supervise submittal for Highway ccupancy Permit. oordination and oversight f building design, ncluding, but not limited 0, foundations, structures, oaf slopes, elevations, terial for construction, echanical electrical, lumbing, sprinkler, steel d storefronts. Oversee egotiations with Anchor tores to fmalize hitectural building and ylon design. Complete site evelopment agreements for onstruction ofKobl's and arget stores, including site evelopment imbursements from obi's and T ct. egotiate and finalize site d building construction ontracts with Granger onstruction versee and manage c nstruction, including but t limited to, store layouts, oor finishes, sprinkler, I ading, electrical, HV AC r uirements, bathrooms, s ockrooms, storefronts and roval for si e and EXHIBIT "B" DATE FURNISHED December 2003 to January 2004. February 2004 to September 2004 10/04-12104 01105-6/05 EXHIBIT fA $12 ,000 $54 $10 ,000 pylon panel location and size for various tenants. Direct and manage 07/05-10/05 finalization of construction of small tenant spaces, coordination with DaI-Pos and Granger Construction for delivery of small tenant s ces Direct and oversee 12104-1/31106 construction of on-site and off-site improvements and uilding to maintain overall chedule of delivery to hor and category killer tores. Oversee and upervise delivery and ceptance of building pads Anchor stores. Oversee d manage construction etails to ensure compliance . th construction schedule or on-site and off-site provements to meet pening schedule. Oversee d manage construction etails to ensure all onditions are met for andlord's timely delivery t small tenants for fixture d merchandising for pening. Supervise ization of construction e orders $90 000 $54 000 ~~~IDJ, ~~ Citizens Bank 341 Science Park RJad, ~;ui1e 201 State College, PA 15803 Ju Y 13, 2006 H bert X. Gilroy, Esquire B oujos & Gilroy, P.C. 4 orth Hanover Street C lisle, PA 17013 Cit'zens Bank is prepared to post a Letter of Credit ("LaC") on behalf of Washco-Carlisle Crossing, LP ("AFC") in the amount of $200,000.00 in order to e the discharge of Mechanics' Liens filed against properties owned by AFC, Target oration and Kohl's Pennsylvania, Inc. located at Carlisle Crossing, South Middleton To ship, Cumberland County, PA.. The LaC will be subject to the terms and co ditions of a Court Order issued by the Cumberland County Court at docket numbers 06- 073,06-3074 & 06-3075. Sin erely, E~ EXHIBIT l:lRBS f B ~ ?,,', -.",,~ -~ --'^ ,,,'._ ,'",......,--.._..'_......'".'..-.., '''''''''''...':''' ,....._, w.",.,,,,,,,,~""".: '.' .'-' 4 NORTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013 717-243-4574 766-1690 .. ....~ ' DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3073 V MECHANICS' LIEN v JUll 8 2~rI"'" IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA :~~~ MECHANICS' LIEN KOHL'S PENNSYL VANIA, INC., Owner DAVID NEUMAN, Claimant TARGET CORPORATION, Owner DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3075 MECHANICS' LIEN AFC W ASHCO-CARLISLE CROSSING,LP, Owner COURT ORDER AND NOW, this 10/:J.. day of July, 2006, upon consideration of the attached Petition for Discharge of Lien Upon Entry of Security, a hearing is scheduled in Court Room No. .;1. of the C~mberland County Courthouse on the () stt day of 911 0 '0 ,2006 at \ \ . 0:) Gt. m., at which time matters raised in this Petition shall be Cll " Judge cc: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.c. 4 North Hanover Street Carlisle, P A 17013 cc: Mr. David Neuman 712 Thorntree Hill Drive Fayetteville, NY 13066 DAVID NEUMAN, Claiinant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA \. v No. 06-3073 MECHANICS' LIEN KOHL'S PENNSYLVANIA, INC., Owner DAVID NEUMAN, Claimant v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 06-3074 / MECHANICS' LIEN TARGET CORPORATION, Owner DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3075 MECHANICS' LIEN AFC W ASHCO-CARLISLE CROSSING, LP, Owner ORDER OF COURT AND NOW, this '271-- day of Stipulation of the parties as set forth in the attached Exhibit A, it I follows: 2006, upon rdered and directed as 1. AFC Washco-Carlisle Crossing, LP, shall me with the Cumberland County Prothonotary at Docket No. 06-3075 a Letter of Credit from Citizen's Bank in the amount of Three Hundred Thousand Dollars ($300,000.00) in the form as set forth on the attached Exhibit B. This Letter of Credit shall act as security for payment of funds owing, if any, pursuant to the three Mechanics' Liens referenced above. 2. Upon the posting of said Letter of Credit with the Cumberland County Prothonotary, all three MechaJlics' Liens filed above shall be discharged as liens against the properties involved in the Mechanics' Liens pursuant to 49 P.S. ~1510. Upon the posting of said Letter of Credit with Prothonotary and upon relation of that filing to the Court, the Court will enter an Order in the form as set forth in the attached Exhibit C. 3. Within thirty (30) days of the posting of said Letter of Credit with the Prothonotary, Claimant David Neuman shall proceed with the filing of a Complaint on the claim he is asserting in accordance with 49 P.S. ~1701. If said Complaint is not med within thirty (30) days, the Letter of Credit posted will be discharged and there will be no further obligation for AFC Washco-Carlisle Crossing, LP, to post any security relative to the Mechanics' Liens filed above. In the event said Complaint is filed within said thirty (30) day time frame, the Letter of Credit posted with the Cumberland County Prothonotary shall remain in place pending resolution of the claim med by David Neuman. Said Letter of Credit shall continue as security for payment of the claim, and this Court shall retain jurisdiction over said Letter of Credit and the claim filed by David Neuman. 4. Nothing in this Order shall in any way limit the amount of a claim that David Neuman may assert against AFC Washco-Carlisle Crossing, LP, nor shall this Order in any way be construed as an admission of any liability by AFC Washco- Carlisle Crossing, LP, relative to the claims asserted by David N Edgar B. Bayley, J " Cc: Hubert X. Gilroy, Esquire Ivo V. Otto, In, Esquire Cofl~.t rf'P ~~JzLly 9(~ "I/;22/DI. ~ , . / {~ /I'~ ~\)\g J ~ tf.i:\&; d-~~' # DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3073 MECHANICS' LIEN KOHL'S PENNSYL VANIA, INC., Owner DA VI>> NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3074 MECHANICS' LIEN TARGET CORPORATION, Owner DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3075 MECHANICS' LIEN AFC W ASHCO-CARLISLE CROSSING,LP, Owner STIPULATION The undersigned, Hubert X. Gilroy, Esquire, as counsel for Kohl's Pennsylvania, Inc., Target Corporation, and AFC Washco-Carlisle Crossing, LP, and Ivo V. Otto, III, Esquire as counsel for Claimant David Neuman hereby agree and stipulate that this Court may enter the attached Order. Date: 1)- ~?- 0 ft1 Date: 7- d-! - 0 l;1 ~~ Ivo V. Otto,III, Esquire EXHIBIT A CITIZENS BANK Irrevocable Credit Number Issuing Bank: Citizens Bank of Pennsylvania International Department 20 Cabot Road, MIS MMF470 Medford, MA 02155 U.S.A. Place and Date of Issue: Medford, P A July _, 2006 Place and Date of Expiry: At our counters July _, 2006 Beneficiary: Court of Common Pleas of Cumberland County c/o Cumberland County Prothonotary Curtis R. Long, Esquire Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Applicant: AFC-Washco-Carlisle Crossing, LP 111 West 157lb Street, Suite 520 New York, NY 10019 Up to an Aggregate Amount thereof: USD 300,000.00 Credit Available with: Citizens Bank of Pennsylvania International Department 20 Cabot Road, MIS MMF470 Medford, MA 02155 U.S.A. Against Presentation of Documents as detailed herein. Drafts at Sight Drawn on: Citizens Bank of Pennsylvania At the request of AFC-Washco-Carlisle Crossing, LP (hereinafter called "Washco") we hereby issue this Irrevocable Letter of Credit effective this date. in favor of the Cumberland County Court of Common Pleas (hereinafter called "Court") in the amount of $300,000.00 on account of Wash co. EXHIBIT I B This Irrevocable Letter of Credit has been issued pursuant to Order of Court of the Court of Common Pleas of Cumberland County Pennsylvania at Docket Nos. 06- 3073,06-3074 and 06-3075. Funds under this Irrevocable Letter of Credit are available to the Court by means of specific Orders of Court at the above mentioned Cumberland County Docket and Term Nos., which said Court Orders shall specify that funds shall be made available pursuant to said Order to secure a claim filed by David Neuman (hereinafter referred to as "Neuman) against Washco, and which is currently being litigated in the Court. Such Court Order or Orders must indicate the amount payable from the account of Washco and any drafts issued pursuant to a Court Order must be marked "Drawn under Citizens Bank of Pennsylvania Letter of Credit No. , dated July --,2006". Payment of this Irrevocable Letter of Credit shall be made without determination of condition or facts pertaining to any matter between Wash co and Neuman. We specifically agree that payments will be honored pursuant to Court Order regardless of any objection made by Washco or any third party. In the event we refuse or fail to honor any Court Order in violation of the foregoing, we will be responsible for reasonable attorney fees incurred by Neuman in enforcing his rights to payment under the terms hereof. The expiration date noted above shall be automatically extended without amendment hereto for an additional period of one year from the expiration date and for additional periods of one year from each anniversary of the expiration date unless at least sixty days prior to the expiration date or each anniversary of the anniversary date, as the case may be, we notify Neuman in writing that we elect not to extend this letter of credit. Such notice will be sent via by Certified Mail Return Recepit Requested, or overnight currier service, addressed to Neuman as follows: Mr. David Neuman 712 Thorn Tree Hill Drive Fayetteville, P A 13066 with a copy to: Ivo V. Otto, III, Esquire Martson Deardorff Williams & Otto 10 East High Street Carlisle, P A 17013 If we give such Notice of Termination, this Letter of Credit shall expire and be considered cancelled on the expiration date or the anniversary of the expiration date, whichever the case may be, subject, however, to further payment on the Letter of Credit within said sixty day Notice in accordance with any Court Order issued within said time frame. This Irrevocable Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits (1996 Revision) International Chamber of Commerce Publication No. 500. We specifically agree that the laws of the Commonwealth of Pennsylvania shall control any and all claims arising hereunder. We further agree to jurisdiction in Cumberland County Pennsylvania and the Appellate Courts of the Commonwealth of Pennsylvania. Intending to be legally bound hereby, this Irrevocable Letter of Credit has been executed by a duly authorized officer of the undersigned bank. Any and all correspondence regarding this Letter of Credit shall be addressed to Citizens Bank of Pennsylvania, 20 Cabot Road, Mail Stop MMF470, Medford, MA 02155 ATTN: Teresa Martin, Bank Officer, Tel. 7841-655-4242. Authorized Signature Authorized Signature DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3073 MECHANICS' LIEN KOHL'S PENNSYLVANIA, INC., Owner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID NEUMAN, Claimant v No. 06-3074 MECHANICS' LIEN TARGET CORPORATION, Owner DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3075 MECHANICS' LIEN AFC W ASHCO-CARLISLE CROSSING, LP, Owner ORDER OF COURT AND NOW, this day of , 2006, it appearing that the Letter of Credit as contemplated by Paragraph 2 of this Court's prior Order of , 2006, has been f"tIed with the Cumberland County Prothonotary, it is hereby ordered that the above three Mechanics' Liens shall be discharged as liens against the real estate pursuant to 49 P.S. ~1510. The Cumberland County Prothonotary is directed to discharge and satisfy on its records any lien or encumbrance placed against the property of Kohl's Pennsylvania, Inc., at Docket No. 06- 3073, against the property of Target Corporation at Docket No. 06-3074, and the property of AFC Washco-Carlisle Crossing, LP, at Docket No. 06-3075. BY THE COURT: EXHIBIT dgar B. Bayley, Judge Cc: Hubert X. Gilroy, Esquire Ivo V. Otto, III, Esquire I ( 0/ DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3073 MECHANICS' LIEN KOHL'S PENNSYLVANIA, INC., Owner v IN THE CO~ ~~ON PLEAS OF CUMBERL/~.,. . , PENNSYLVANIA No. 06-3074 MECHANICS' LIEN DAVID NEUMAN, Claimant TARGET CORPORATION, Owner DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3075 MECHANICS' LIEN AFC W ASHCO-CARLISLE CROSSING, LP, Owner PRAECIPE TO THE PROTHONOTARY: Consistent with the Order of Court issued on July 27, 2006 in the above cases, please accept for ming a Letter of Credit from Citizens Bank in the amount of 5300,000.00. Respectfully submitted, (") c <" -oF ITlr"t /"" ~; I"~ Cr.} .- ~( ~::,: J ~~~~' Z :::;J, "" = = "'"' ". c:: G? N o.D -0 -- ...... ~ :e n,.:.n :urn ,.Ii? .:~() ~;:.-r, ''")'' ~}'~(,5 den :.t;! ~ ~ :- o.D , ~~ Citizens Bank International Division 20 Cabot Road Medford. MA 0215S USA 888868.0212 tel SWIFT: CTZIUS33 TELEX 211047 CTZINTL IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER S903755 ISSUING BANK: CITIZENS BANK OF PENNSYLVANIA INTERNATIONAL TRADE DEPT. 20 CABOT ROAD, Mis MMF470 MEDFORD, MA 02155 U.S.A PLACE AND DATE OF ISSUE: MEDFORD, MA AUGUST 17, 2006 PLACE AND DATE OF EXPIRY: AT OUR COUNTERS JULY 28, 2007 BENEFICIARY: COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ONE COURTHOUSE SQUARE FULL NAME AND ADDRESS AS LISTED... CARLISLE, PA 17013 APPLICANT: AFC WASHCO-CARLISLE CROSSING, LP III WEST 57TH STREET, SUITE 520 NEW YORK, NY 10019 UP TO AN AGGREGATE AMOUNT THEREOF: USD 300,000.00 PARTIAL DRAWINGS: PARTIAL DRAWINGS ARE ALLOWED CREDIT AVAILABLE WITH: CITIZENS BANK OF PENNSYLVANIA INTERNATIONAL TRADE DEPT. 20 CABOT ROAD, Mis MMF470 MEDFORD, MA 02155 U.S.A AGAINST PRESENTATION OF DOCUMENTS AS DETAILED HEREIN. DRAFTS: AT SIGHT DRAWN ON:CITIZENS BANK OF PENNSYLVANIA FULL NAME AND ADDRESS OF BENEFICIARY: COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Clo CUMBERLAND COUNTY PROTHONOTARY CURTIS R. LONG ESQ. CUMBERLAND COUNTY COURTHOUSE ONE COURTHOUSE SQUARE CARLISLE, PA 17013 CONTINUED ON NEXT PAGE aRBS " ~~ Citizens Bank International Division 20 Ca bot Road Medford, MA 021S5 USA 888 868.0212 tel SWIFT: CTZIUS33 TELEX 211047 CTZINTL OUR REFERENCE NUMBER S903755 PAGE 2 AT THE REQUEST OF AFC-WASHCO-CARLISLE CROSSING, LP (HEREINAFTER CALLED "WASHCO") WE HEREBY ISSUE THIS IRREVOCABLE LETTER OF CREDIT EFFECTIVE THIS DATE IN FAVOR OF THE CUMBERLAND COUNTY COURT OF COMMON PLEAS (HEREINAFTER CALLED "COURT") IN THE AMOUNT OF $300,000.00 ON ACCOUNT OF WASHCO. THIS IRREVOCABLE LETTER OF CREDIT HAS BEEN ISSUED PURSUANT TO ORDER OF THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA AT DOCKET NOS. 06-3073, 06-3074 AND 06-3075. FUNDS UNDER THIS IRREVOCABLE LETTER OF CREDIT ARE AVAILABLE TO THE COURT BY MEANS OF SPECIFIC ORDERS OF COURT AT THE ABOVE MENTIONED CUMBERLAND COUNTY DOCKET AND TERM NOS., WHICH SAID COURT ORDERS SHALL SPECIFY THAT FUNDS SHALL BE MADE AVAILABLE PURSUANT TO SAID ORDER TO SECURE A CLAIM FILED BY DAVID NEUMAN (HEREINAFTER REFERRED TO AS "NEUMAN") AGAINST WASHCO, AND WHICH IS CURRENTLY BEING LITIGATED IN THE COURT. SUCH COURT ORDER OR ORDERS MUST INDICATE THE AMOUNT PAYABLE FROM THE ACCOUNT OF WASHCO AND ANY DRAFTS ISSUED PURSUANT TO A COURT ORDER MUST BE MARKED "DRAWN UNDER CITIZENS BANK OF PENNSYLVANIA LETTER OF CREDIT NO. S903755, DATED AUGUST 17, 2006". PAYMENT OF THIS IRREVOCABLE LETTER OF CREDIT SHALL BE MADE WITHOUT DETERMINATION OF CONDITION OR FACTS PERTAINING TO ANY MATTER BETWEEN WASHCO AND NEUMAN. WE SPECIFICALLY AGREE THAT PAYMENTS WILL BE HONORED PURSUANT TO COURT ORDER REGARDLESS OF ANY OBJECTION MADE BY WASHCO OR ANY THIRD PARTY. IN THE EVENT WE REFUSE OR FAIL TO HONOR ANY COURT ORDER IN VIOLATION OF THE FOREGOING, WE WILL BE RESPONSIBLE FOR REASONABLE ATTORNEY FEES INCURRED BY NEUMAN IN ENFORCING HIS RIGHTS TO PAYMENT UNDER THE TERMS HEREOF. THE EXPIRATION DATE NOTED ABOVE SHALL BE AUTOMATICALLY EXTENDED WITHOUT AMENDMENT HERETO FOR AN ADDITIONAL PERIOD OF ONE YEAR FROM THE EXPIRATION DATE AND FOR ADDITIONAL PERIODS OF ONE YEAR FROM EACH ANNIVERSARY OF THE EXPIRATION DATE UNLESS AT LEAST SIXTY DAYS PRIOR TO THE EXPIRATION DATE OR EACH ANNIVERSARY OF THE EXPIRATION DATE, AS THE CASE MAY BE, WE NOTIFY NEUMAN IN WRITING THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT. SUCH NOTICE WILL BE SENT VIA BY CERTIFIED MAIL RETURN RECEPIT REQUESTED, OR OVERNIGHT CURRIER SERVICE, ADDRESSED TO NEUMAN AS FOLLOWS: CONTINUED ON NEXT PAGE ~RBS " . ~~ Citizens Bank International Division 20 Cabot Road Medford, MA 0215S USA 888 868.0212 tel SWIFT: CTZIUS33 TELEX 211047 CTZINTL OUR REFERENCE NUMBER S903755 PAGE 3 MR. DAVID NEUMAN 712 THORN TREE HILL DRIVE FAYETTEVILLE, PA 13066 WITH A COPY TO: IVO V. OTTO, III, ESQUIRE MARTSON DEARDORFF WILLIAMS & OTTO 10 EAST HIGH STREET CARLISLE, PA 17013 IF WE GIVE SUCH NOTICE OF TERMINATION, THIS LETTER OF CREDIT SHALL EXPIRE AND BE CONSIDERED CANCELLED ON THE EXPIRATION DATE OR THE ANNIVERSARY OF THE EXPIRATION DATE, WHICHEVER THE CASE MAY BE, SUBJECT, HOWEVER, TO FURTHER PAYMENT ON THE LETTER OF CREDIT WITHIN SAID SIXTY DAY NOTICE IN ACCORDANCE WITH ANY COURT ORDER ISSUED WITHIN SAID TIME FRAME. THIS IRREVOCABLE LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION) INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 500. WE SPECIFICALLY AGREE THAT THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA SHALL CONTROL ANY AND ALL CLAIMS ARISING HEREUNDER. WE FURTHER AGREE TO JURISDICTION IN CUMBERLAND COUNTY PENNSYLVANIA AND THE APPELLATE COURTS OF THE COMMONWEALTH OF PENNSYLVANIA. INTENDING TO BE LEGALLY BOUND HEREBY, THIS IRREVOCABLE LETTER OF CREDIT HAS BEEN EXECUTED BY A DULY AUTHORIZED OFFICER OF THE UNDERSIGNED BANK. ANY AND ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT SHALL BE ADDRESSED TO CITIZENS BANK OF PENNSYLVANIA, 20 CABOT ROAD, MAIL STOP MMF470, MEDFORD, MA 02155 ATTN: ROBERT MARSHALL, OFFICER, TEL. (781) 655-4238. ..(J AUTHORIZED SIGNATURE aRBS 6 DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3073 MECHANICS' LIEN KOHL'S PENNSYLVANIA, INC., Owner DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3074/ MECHANICS' LIEN TARGET CORPORATION, Owner DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3075 MECHANICS' LIEN AFC W ASHCO-CARLISLE CROSSING, LP, Owner ORDER OF COURT AND NOW, this 30 day of , 2006, it appearing that the Letter of Credit as contemplated by aragraph 2 of this Court's prior Order of July 27, 2006, has been med with the Cumberland County Prothonotary, it is hereby ordered that the above three Mechanics' Liens shall be discharged as liens against the real estate pursuant to 49 P.S. ~1510. The Cumberland County Prothonotary is directed to discharge and satisfy on its records any lien or encumbrance plaeed against the property of Kohl's Pennsylvania, Inc., at Docket No. 06-3073, against the property of Target Corporation at Docket No. 06-3074, and the property of AFC Washco-Carlisle Crossing, LP, at Docket No. 06-3075. BY THE COURT: Cc: -Hubert X. Gilroy, Esquire -l Ueorge B. Faller, Jr., Esquire , 'L(\ ',l' .. y,-4 tp-fl' ~ '" /&' .j;y ~'(; y' ~ '0'" I>~ '6 0 "'~'\ \ fIe.. '!f .> ~?\ .p, ()~ \Y" ~ , DAVID NEUMAN, Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 06-3073 MLD KOHL'S PENNSYLVANIA, INC., Owner MECHANIC'S LIEN DAVID NEUMAN, Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-3074 Ml,D / TARGET CORPORATION, Owner MECHANIC'S I"IEN DAVID NEUMAN, Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-3075 MLD AFC W ASHCO-CARLISLE CROSSING, LP, MECHANIC'S LIEN Owner NOTICE TO PLEAD TO: DAVID NEUMAN c/o: George B. Faller, Jr., Esquire Michael J. Collins, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, P A 17013 Kenneth M. Alweis, Esquire Goldberg Segalla, LLP 5789 Widewaters Parkway Syracuse, NY 13214 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS AND MOTION WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Dated: October ~, 2006 Hubert X. Gilroy, 1. D. No. 29943 Broujos & Gilroy, PC 4 North Hanover Street Carlisle, P A 17013 Telephone: (717) 243-4574 (Attorney for Owners) DAVID NEUMAN, Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-3073 MLD KOHL'S PENNSYLVANIA, INC., Owner MECHANIC'S LIEN DAVID NEUMAN, Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-3074 MLD TARGET CORPORATION, Owner MECHANIC'S LIEN DAVID NEUMAN, Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-3075 MLD AFC W ASHCO-CARLISLE CROSSING, LP, MECHANIC'S LIEN Owner DEFENDANT'S PRELIMINARY OBJECTIONS TO CLAIMANT'S MECHANIC'S LIEN CLAIM AND MOTION FOR RELEASE OF SECURITY Kohl's Pennsylvania, Inc. ("Kohl's), Target Corporation ("Target"), and APC Washco- Carlisle Crossing, LP, ( "Washco" and collectively with Kohl's and Target, "Owners"), by and through counsel, Broujos & Gilroy, P.C., file Preliminary Objections to Claimant David Neuman's ("Claimant" or "Neuman") Mechanic's Lien Claim and Petition for Release of Security pursuant to 49 P .S. ~ 1505, and in support thereof, aver the following: 1. On May 30, 2006, Claimant commenced the above-captioned actions by the filing of three mechanic's lien claims at each of the above-captioned dockets. 2. The three above-captioned mechanic's lien claims are in the same amount, that is, 2 the sum of $405,500.00. 3. The three above-captioned mechanic's lien claims are based upon the same alleged (and disputed) oral contract with Washco and the same labor allegedly provided by Claimant. 4. On July 18, 2006, a Petition for Discharge of Mechanic's Lien Upon Entry of Security was filed at the three above-captioned dockets on behalf of the Owners. 5. The aforesaid petition alleged, inter alia, that the amount of Claimant's mechanic's lien claim was excessive, as a significant portion ofthe work alleged to be performed by Claimant was also alleged by Claimant to have occurred prior to the date of Claimant's alleged oral contract with Washco. 6. By Order dated July 27, 2006, upon consideration ofthe aforesaid petition and by stipulation of the parties, this Court, inter alia, allowed Washco to post security in the reduced amount of $300,000.00 and, in exchange, the properties subject to the instant liens would be released from the liens. 7. On August 15,2006, Neuman commenced an action against Washco and other defendants at Civil Docket No. 06-4691 by the filing of a complaint ("the Complaint"). 8. The Complaint contained 5 counts, one of which was an action upon the instant mechanic's lien claim against Washco. A true and correct copy of the Complaint is attached hereto, marked as Exhibit "A", and incorporated herein. 9. On or about August 29, 2006, Washco posted security in the form of a letter of credit in the amount of $300,000.00. 10. Upon posting of the aforesaid security, by Order dated August 30, 2006, this Court discharged the instant three liens. 3 11. On September 21,2006, Washco, et ai, filed preliminary objections to the Complaint, which are pending before this Court. I. Owners' Preliminary Obiections to Mechanic's Lien Claims for Lack of Conformity to Mechanic's Lien Law Pursuant to 49 P.S. ~ 1505 a) Failure to Apportion Claims 12. Paragraphs 1 through 11, above, are incorporated herein by reference as though textually set forth at length. 13. The cost oflabor allegedly provided by Claimant and allegedly unpaid, ostensibly forming the basis for the instant mechanic's lien claims totals $ 405,500.00. 14. The Mechanic's Lien Law requires that a claimant providing labor or materials for work on several different improvements not forming all or part of a single business plant to file separate claims as to each improvement, with the amount of each claim determined by apportionment of the total debt to the several improvements. (49 P.S. S 1306(b).) 15. The properties subject to the three instant mechanic's lien claims, namely, the Kohl's property, the Target property, and the Washco property are each separate improvements and business plants, as evidence by the three separate and distinct deed and legal descriptions attached to and annexed in each of the three instant mechanic's lien claims filed by Claimant. 16. While Claimant filed three separate claims, one each for each of the three several improvements, Claimant made no effort whatsoever to apportion his alleged claim among the three separate and distinct improvements for which Claimant allegedly provided labor. Instead, Claimant filed mechanic's lien claims in the same total un-apportioned amount against each and all three said properties, in plain violation of the mandate of 49 P.S. S 1306(b ). 4 17. The Mechanic's Lien Law is to be strictly construed, and Claimant's failure to comply with the law's statutory requirements mandates striking of each and every one of the three instant mechanic's lien claims. WHEREFORE, Owner respectfully request that this Honorable Court strike Claimant's mechanic's lien claims, with prejudice, and order release of the security posted by Washco, without restriction, and, further, award Owners any other relief the Court deems just and which is allowable by law. b) Failure to Distinl!uish Nonlienable Work in Claim 18. Paragraphs 1 through 17, above, are incorporated herein by reference as though textually set forth at length. 19. Claimant bases his mechanic's lien claims on allegedly providing labor in the nature of superintendence, including but not limited to: "Oversee[ing] negotiations with Anchor stores to finalize architectural building and pylon design. Complete site development agreements for construction of Kohl's and Target stores, including site development reimbursements from Kohl's and Target." (See Mechanic's Lien Claims at Exhibit "B".) 20. Assuming arguendo that any work alleged by Claimant is lienable (which Owners dispute), certain work specified in Claimant's claims, including but not necessarily limited to that aforesaid, is plainly, and by its very nature, nonlienable and should not be included as part of Claimant's mechanic's lien claims. 21. As Claimant has included nonlienable work in his mechanic's lien claims or, at minimum, failed to distinguish the nonlienable work from the alleged lienable work, Claimant's mechanic's lien claims should be stricken, as it is in derogation of the law. WHEREFORE, Owners respectfully request that this Honorable Court strike Claimant's 5 mechanic's lien claims, with prejudice, and order release of the security posted by Washco, without restriction, and, further, award Owners any other relief the Court deems just and which is allowable by law. c) No Lien Permitted bv Persons Other than Contractor or Subcontractor 22. Paragraphs I through 21, above, are incorporated herein by reference as though textually set forth at length. 23. In the Complaint at Paragraph 7, Claimant avers that, prior to January, 2005, Claimant was an owner of Carlisle Crossing. 24. At the time that Claimant alleges himself to be the an owner of Carlisle Crossing, Carlisle Crossing was composed ofthe three instant subject properties, as subdivision and separate deeds had not yet been conveyed for each of the three said properties. 25. In the Washco mechanic's lien claim, Claimant avers that the "labor, skills and superintendence for which the debt is due were furnished pursuant to an oral agreement with owner, entered into on or about January 24,2005[.]" (Washco Mechanic's Lien Clam at ~ 3.) 26. Transfer ofthe subject property to Owner occurred on April 13, 2005. (Mechanic's Lien Claims at Exhibit "A".) 27. Claimant allegedly remained an equitable owner of the subject properties until April 13,2005. 28. It is clear from Claimant's mechanic's lien claims that $216,000.00 of the labor and materials Claimant allegedly provided and forming part of the claims, was allegedly performed at a time that Claimant was allegedly the owner of the subject properties and before the aforesaid alleged oral agreement to do so. (Mechanic's Lien Claims at Exhibit "B".) 29. Additionally, while the specific amount is not readily ascertainable from 6 Claimant's three identical Exhibit B's, it is clear from the three Exhibit B's that at least part of the remaining amount claimed to be due by Claimant was performed before January 24,2005, the date of the alleged oral agreement. 30. Also patently clear from Claimant's claims is that an additional $54,000.00 of the labor and materials was allegedly performed or supplied at the time that Claimant remained an equitable owner ofthe subject properties. (Mechanic's Lien Claims at Exhibit "B".) 31. In each of the mechanic's lien claims, Claimant also avers that he, inter alia, "coordinate[ ed] with Dal-Pos and Granger Construction for delivery of small tenant spaces[.]" (Mechanic's Lien Claims at Exhibit "B".) 32. The Complaint avers that Neuman is a co-owner of the subject properties. (Complaint at ~ 14.) 33. Moreover, much, ifnot all, of the labor Claimant alleges is that ofa go-between, or agent, of the owner, and not that of a "contractor" or "subcontractor", as defined by the Mechanic's Lien Law. 34. Even viewing Claimant's averments in their most favorable light, and notwithstanding the fact that Claimant avers that he was a contractor in the Washco mechanic's lien claim and subcontractor in the Kohl's and Target mechanic's lien claims, Claimant is not a "contractor" or "subcontractor" as defined by the Mechanic's Lien Law at 49 P.S. ~ 1201(4) & (5). 35. Claimant's mechanic's lien claim must be stricken pursuant to 49 P.S. ~ 1303(a), as no mechanic's lien claim is permitted except as to contractors and subcontractors, as defined by the Mechanic's Lien Law. WHEREFORE, Owners respectfully request that this Honorable Court strike Claimant's 7 mechanic's lien claims, with prejudice, and order release of the security posted by Washco, without restriction, and, further, or in the alternative, award Owners any other relief the Court deems just and which is allowable by law. II. Owner's Motion for Release of Security 36. Paragraphs 1 through 35, above, are incorporated herein by reference as though textually set forth at length. 37. Claimant failed to comply with the requirements of the Mechanic's Lien Law, as aforesaid, and Claimant's three instant mechanic's lien claims should therefore be stricken and the security posted by Washco released without restriction. WHEREFORE, Owners respectfully request this Honorable Court order release of the securi ty posted by Washco and, further, award Owners any other relief the Court deems just and which is allowable by law. Respectfully Submitted, BROUJOS & GILROY, P.c. October ~, 2006 BY: Hubert X. Gil , Esquire (Attorney DOwners) 1. D. No. 29943 4 North Hanover Street Carlisle, PA 17013 Telephone: (717) 243-4574 8 DAVID NEUMAN, Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-3073 MLD KOHL'S PENNSYLVANIA, INC., Owner MECHANIC'S LIEN DAVID NEUMAN, Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-3074 MLD TARGET CORPORATION, Owner MECHANIC'S LIEN DAVID NEUMAN, Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-3075 MLD AFC W ASHCO-CARLISLE CROSSING, LP, MECHANIC'S LIEN Owner CERTIFICATE OF SERVICE I hereby certify that, on this date, I am serving a true and correct copy of the foregoing Preliminary Objections upon the following persons by U.S. Mail, First Class, postage prepaid, which service satisfies Pa.R.c.P. 440: George B. Faller, Jr., Esquire Michael J. Collins, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, P A 17013 (Attorney [Dr Claimant) Kenneth M. Alweis, Esquire Goldberg Segalla, LLP 5789 Widewaters Parkway Syracuse, NY 13214 (Attorney for Claimant) October Q, 2006 Hubert X. Gilroy, E uire Broujos & Gilroy, .C. 4 North Hanover treet Carlisle, P A 17013 (Attorney for Owners) 9 -,~ 1 .- C) r::~ ~_.;~ (-) ~ o (j --I =r: :iJ ;- j" r--- ~ri :~~; w --"';"" ,-~ '-.--." ~~ r:..;~ [',) c: .".1 -<;:3 :< DAVID NEUMAN, Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-3073 MLD KOHL'S PENNSYLVANIA, INC., Owner MECHANIC'S LIEN DAVID NEUMAN, Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 06-3074 MLD TARGET CORPORATION, Owner MECHANIC'S LIEN DA VID NEUMAN, Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 06-3075 MLD AFC WASH CO-CARLISLE CROSSING, LP, MECHANIC'S LIEN Owner OWNERS' MOTION FOR IMMEDIATE RELEASE OF SECURITY Kohl's Pennsylvania, Inc. ("Kohl's), Target Corporation ("Target"), and AFC Washco- Carlisle Crossing, LP, ("Washco" and collectively with Kohl's and Target, "Owners"), by and through counsel, Broujos & Gilroy, P.C., file this Motion for Immediate Release of Security as follows: 1. On May 30, 2006, Claimant commenced the instant actions by the filing of mechanic's lien claims to each of the three above-captioned dockets, all in the same amount ($405,500.00); all three based upon the same alleged (and disputed) oral contract with Washco; and all three for the same labor allegedly provided by Claimant. 2. On July 18,2006, a Petition for Discharge of Mechanic's Lien Upon Entry of . Security was filed at the three above-captioned dockets on behalf of the Owners, alleging, inter alia, that the amount of Claimant's mechanic's lien claim was excessive, as a significant portion of the work alleged to be performed by Claimant was also alleged by Claimant to have occurred prior to the date of Claimant's alleged oral contract with Washco. 3. Upon consideration of the aforesaid petition and by stipulation of the parties, this Court by Order dated July 27,2006, inter alia, allowed the Washco to post security in the reduced amount of $300,000.00 and, in exchange, the properties subject to the instant liens would be released from the liens. 4. On August 15, 2006, Neuman commenced an action, based upon the same alleged facts allegedly supporting the instant Mechanic's Liens, against Washco and other defendants at Civil Docket No. 06-4691. 5. On or about August 29, 2006, Washco posted security in the form of a letter of credit in the amount of $300,000.00, after which, the Court discharged the three parcels of real estate from the operation of the instant Mechanic's Liens 6. On October 13,2006, Owners filed Preliminary Objections to Claimant's Mechanic's Lien Claim and Motion for Release of Security. 7. The Preliminary Objections to Claimant's Mechanic's Lien Claim and Motion for Release of Security were endorsed with a Notice to Plead within twenty (20) days, and were duly served upon Claimant by First Class Mail to both local and New York counsel on October 13, 2006. 8. By letter dated November 17, 2006, counsel for Owners granted Claimant until December 7,2006 to file an answer to the Preliminary Objections and Motion for Release of Security. A true and correct copy of said letter is attached hereto and marked as Exhibit "A". 9. As of the date of this Motion, Claimant has failed to serve Owners with an answer . to the Preliminary Objections and Motion for Release of Security. 10. As of the date of this Motion, Claimant, through counsel, has not given undersigned counsel any reason, much less good reason, for the failure to plead. 11. Claimant's failure to answer the Preliminary Objections and Motion for Release of Security is without excuse and with no reasonable basis. 12. Claimant's failure to answer the Preliminary Objections and Motion for Release of Security serves to delay disposition of the matter, which works to the prejudice and harm of Wascho, as the security posted by Washco is causing Washco to incur significant costs and expenses in the nature of ongoing fees and interest. 13. Grant of this Motion will not impair Claimant's substantive rights, as said action at Civil Docket No. 06-4691, as well as, the actions at the above captioned dockets remain pending for disposition. WHEREFORE, Owners respectfully request this Honorable Court order immediate release of the security posted by Washco and, further, award Owners any other relief which the Court deems just and which is allowable by law. Respectfully Submitted, BROUJOS & GILROY, P.C. December 8, 2006 BY: ubert X. ilroy, Esquire (Attorney or Owners) I. D. No. 29943 4 North Hanover Street Carlisle, P A 17013 Telephone: (717) 243-4574 . ~ DAVID NEUMAN, Claimant v. KOHL'S PENNSYLVANIA, INC., Owner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA NO. 06-3073 MLD MECHANIC'S LIEN DAVID NEUMAN, Claimant v. TARGET CORPORATION, Owner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-3074 MLD MECHANIC'S LIEN DA VID NEUMAN, Claimant v. AFC W ASHCO-CARLISLE CROSSING, LP, Owner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-3075 MLD MECHANIC'S LIEN CERTIFICATE OF SERVICE I hereby certify that, on this date, I am serving a true and correct copy of the foregoing Motion upon the following persons by U.S. Mail, First Class, postage prepaid, which service satisfies Pa.R.c.P. 440: George B. Faller, Jr., Esquire Michael J. Collins, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 (Attorney for Claimant) December 8, 2006 Kenneth M. Alweis, Esquire Goldberg Segalla, LLP 5789 Widewaters Parkway Syracuse, NY 13214 (Attorney for Claimant) Hubert X. Gilroy squire Broujos & Gilr , P.C. 4 North Hanover Street Carlisle, PA 17013 (Attorney for Owners) ~ c . .. JOHN H. BROUJOS HUBEIn' X. GILROY BROUJOS & GILROY, P.C. ATrORNEYS AT LAW 4 NOR'lH HANOVER STREET CARUSLE, PENNSYLVANIA 17013 TELEPHONE: (717) 243-4574 FACSIMILE: (717) 243-8227 jbroujosObroujosgilroy.com hgilroyObro~josgilroy.com November 17, 2006 NON-ToLL FOR HAluusBURG AREA 717-766-1690 George B. Faller Jr. Esquire Martson Deardorff Williams & Otto 10 East High Street Carlisle, P A 17013 RE: Neuman v AFC Washeo et ale Dear George: We need to move this case along. My clients are incurring expense with the Letter of Credit for the security, and I believe it is clear in this case that this security should be released at this point. To date, I have given you an extension to file a response to our Preliminary Objections and Motion for Release of Security. I ask that you get an Answer filed within twenty days of the date of this letter. You may have a further extension to respond to the Preliminary Objections if you agree at this point to release the security. Our position and request does not undermine your client's ability to pursue the basic claim which he has set forth in his Complaint. The only issue we are litigating at this time is the propriety of the filing of the Mechanic's Lien and the security we posted to bave the Mechanic's Liens released. It is clear to us based upon the allegations of the Complaint that the Mechanic's Lien claim itself must fail and, correspondingly, the security should be released. Again, this does not negatively impact your client's ability to pursue the claims set forth in the Complaint and, quite frankly, I would suggest that your client should recognize that there is no need for security to be posted in this matter. The expenditure of attorney's fees by both parties on this issue of the posting of security does appear to make much sense. srb cc: Mitchell S. Berkey, Esquire This corresDondence is beinI! transmitted via facsimile EXHIBIT j j A o 1'"' ~- """..:t c= c::> 0-' C) r'I c-J I c:J ::-~ -,ii- o -n -i ffl~ r-- -c,en ~(IC f ~:.~.~ ~.~? ...~., '-::; (-) om ---I JO ::< N N - Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA DAVID NEUMAN, v. NO. 06-3073 MLD DEe 0 8 200~ KOHL'S PENNSYLVANIA, INC., Owner MECHANIC'S LIEN Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DA VID NEUMAN, v. NO. 06-3074 MLD TARGET CORPORATION, Owner MECHANIC'S LIEN Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DAVID NEUMAN, v. NO. 06-3075 MLD AFC W ASHCO-CARLISLE CROSSING, LP, MECHANIC'S LIEN Owner RULE AND NOW, this L day of ~ ,2007, upon consideration of ....... the within motion and for good cause shown, a Rule is HEREBY ISSUED upon Claimant, David Neuman, to show cause, if any exists, why the requested relief should not be granted. Rule returnable by answer filed with the Court and served upon counsel for Owners within ten (10) days from the date hereof. BY THE COURT: Copies: George B. Faller, Esquire ! Kenneth M. Alweis, Esquire '/).- -8 '(fc, Hubert X. Gilroy, Esquire ~~~ ..o1f' v'4 :0 .Me}' tJc f\~ ~or ..\~p -0(; ~ Of ' OI.P n\l- C'b i\{;c-, {' ff\ g v ~v' o ()~ \)~ . Ill. . It" ~<, DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3073 MECHANICS' LIEN KOHL'S PENNSYL VANIA, INC., Owner DAVID NEUMAN, Claimant v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 06-3074/ MECHANICS' LIEN TARGET CORPORATION, Owner DA VIDNEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3075 MECHANICS' LIEN AFC W ASHCO-CARLISLE CROSSING, LP, Owner COURT ORDER AND NOW, this ~ day of December, 2006, upon consideration of the attached Stipulation, it is ordered and directed as follows: 1. The Letter of Credit in the amount of $300,000.00 posted by AFC Washco-Carlisle Crossing, LP, at Docket No. 06-3075 above is hereby released, and the Owners in the above three referenced cases shall no longer have any requirement to post security for payment of funds owing, if any, pursuant to the three Mechanics' Liens referenced above. 2. Citizen's Bank. of Pennsylvania, which posted the Letter of Credit on behalf of AFC Washeo-Carlisle Crossing, LP, is hereby released from any obligation with respect to said Letter of Credit, and the Cumberland County Prothonotary is authorized to return to legal counsel for AFC Washco the original Letter of Credit which has been posted in this matter. .11 ?-- 't', 3. This Order should not in any way limit the amount of a claim, if any, that David Neumann may assert against AFC Washco-Carlisle Crossing, LP, at the above Docket No. or at Docket No. 06-4691. -- cc: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, P A 17013 cc: George B. Faller, Jr., Esquire Martson Deardorff Willia.ms & Otto 10EastffighStreet () -{t -0(0 ~ ~ Carlisle, PA 17013 / Kenneth M. AIweis, Esquire Goldberg, SegaIIa, LLP 5789 Widewaters Parkway Syracuse, NY 13214 cc: rRUE copy fl1lHvl "t:COR~ f\ T""" whereOf, I t!~re unto set my ... .. .. II said Court at c...... PI. ~~ ,.,;.~& ~~ J t- . . ' .... '. DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3073 MECHANICS' LIEN KOHL'S PENNSYLVANIA, INC., Owner DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3074 MECHANICS' LIEN TARGET CORPORATION, Owner DAVID NEUMAN, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v No. 06-3075 MECHANICS' LIEN AFC W ASHCO-CARLISLE CROSSING, LP, Owner STIPULATION Legal counsel for the parties hereby Agree and Stipulate that the attached Order may be entered by the Court. Decemberl~, 2006 BY: George B. Faller, Jr., Esquire (Attorney for Claimant) Martson Deardorff Williams & Otto 10 East High Street Carlisle, P A 17013 Telephone: (717) 243-1850 December I ~ , 2006 #4 ~~ t,J> f~ ~ ~tl- , ~f; ~.\ ~~ ~ rl '}oo\J CY \ II (3 r:I' 0.,r rID . I \ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated infull) DA VID NEUMAN, Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 06-3073 MLD : CIVIL ACTION - LAW KOHL'S PENNSYLVANIA, INC., Owner : MECHANICS LIEN DAVID NEUMAN, Claimant v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-3074 MLD /' : CIVIL ACTION - LAW TARGET CORPORATION, Owner : MECHANICS LIEN DAVID NEUMAN, Claimant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 06-3075 MLD : CIVIL ACTION - LAW AFC W ASH CO-CARLISLE CROSSING, LP, Owner : MECHANICS LIEN 1. State matter to be argued (Le., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Obiections to Claimants Mechanics Lien Claim and Motion for Release of Security' J By Order of Court dated December 18,2006, the Court approved the parties' Stipulation to release security. The underlying mechanics' lien, and the Owners Preliminary Objections to the same continue to remain outstanding in this matter. , j ~ 2. Identify counsel who will argue cases: (a) for plaintiff: (Claimant) George B. Faller, Jr., Esq. and Michae 1. Collins, Esq., Martson Law Offices, 10 East (Name and Address) High Street, Carlisle, P A 17013 and Kenneth M. Alweis, Esq., Goldberg Segalla, LLP. 5789 Widewaters Parkway, Syracuse, NY 13214 (admitted Pro Hac Vice) (b) for defendant: (Owners) Paige Macdonald-Matthes, Esquire, Serratelli. Schiffman, Brown & Calhoon, P.c., (Name and Address) 2080 Linglestown Road, Suite 201, Harrisburg, P A 17110 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 28, 2007 ~~ "--\J'-1(,~~~~~ Signature Paige Macdonald-Matthes, Esquire Print your name Date: 01/30/07 Attorney for Owners (Defendants) ,....., c::::> r~ --.J ~':-" "",_,.1'" -,,:-,.0 ....... o ., ::;:l n1:D ,- ~ rr-: ~J)o c:.'i (~) c_r2~r_; _---,rn --.J :-:-,; ~D -< w ::;? o (,,0 .,. .... .... DAVID NEUMAN, Claimant v I I KOHL'S PENNSYLVANIA, I~C . , Owner I i I I DAVID NEUMAN, , Claimant v TARGET CORPORATION, Owner DAVID NEUMAN, Claimant v AFC WASHCO-CARLISLE CROSSING, LP, Owner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-3073 MLD CIVIL ACTION - LAW MECHANICS LIEN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-3074 MLD CIVIL ACTION - LAW ./ MECHANICS LIEN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-3075 MLD CIVIL ACTION - LAW MECHANICS LIEN PRAECIPE FOR W THDRAWAL AND ENTRY OF APPEARANCE Please withdraw I I tht I fot i I I appearance of Hubert X. Gilroy, Esquire, as attorney the Owners in the above-captioned matters. ~,e--o "7 HU~Oi~Y' Esquire Martson, Deardorff, Williams Otto, Gilroy & Faller 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dated: lRUI COP\' FROM RECORD "ft ,..IIt.- ..... I here unto lit mr ,.~ ........ '" of said Court at CarlIle. PI. ~~1~~ ~ r- " Please enter the appearance of Paige Macdonald-Matthes, Esquire, as attorney for the Owners in the above-captioned Matters. Da ted: _!~.l'51 0'1 ~u4~ ~~-.J}Jr..hf1t\C4 paige Macdonald-Matthes, Esquire Atty ID No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road Suite 201 Harrisburg, PA 17110 (717) 540-9170 Flte'IJ OFPI8; or- 111. 1'b;~IJO""JeY ciDo7 Feb IOlI'I.f /:.Ilt{ (!1Ut/oC1, PA .drd ,..; ",' .' DA VID NEUMAN, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Claimant, v. : NO.: 06-3073 MLD KOHL'S PENNSYLVANIA, INC. Owner. : CIVIL ACTION - LAW : MECHANICS LIEN DA VID NEUMAN, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ~ NO.: 06,,3074 MLD / Claimant, v. TARGET CORPORATION, Owner. : CIVIL ACTION - LAW : MECHANICS LIEN DA VID NEUMAN, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Claimant, v. : NO.: 06-3075 MLD AFC W ASHCO-CARLISLE CROSSING, LP, Owner. : CIVIL ACTION - LA W : MECHANICS LIEN PRAECIPE FOR WITHDRAWAL AND ENTRY OF APPEARANCE Please withdraw the appearance of George B. Faller, Esquire and Michael J. Collins, Esquire, of MARTS ON DEARDORFF WILLIAMS & OTTO, as attorneys for the Claimant in the above-captioned matter. ~~~ J.D. No.. 49813 . MARTS ON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, P A 17013 (717) 2433341 Dated: 2... I " a.7 .' Dated: 2-- {to --6t Michael 1. Collins, Esqu e J.D. No.: 200427 MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, P A 17013 (717) 2433341 Please enter the appearance of Henry J. Noye, Esquire, of GOLDBERG SEGALLA, LLP, as attorney for the Plaintiff in the above-captioned matter. Dated: Z - 70- 01- l~~. rIp- Henry 1. No e, EsqUire J.D. No.: 82495 GOLDBERG SEGALLA, LLP United Plaza 30 South 17th Street, Suite 1800 Philadelphia, Pennsylvania 19103-4005 (215) 284-4501 o ~ <.. -JtJ) O;Jrr z u~ r;. (~ <-- );: (: ~~c. >.~~ ~ -< f"-,) = = --' ""'f1 rr1 CO N -1 o '"" -I :r:" rn- Fn :gy :~~ <)C') :'<;;'rn u --\ "'r:;.. ~ :PO :2: - .. \.0 16 David Neuman v. Target Corporation : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA : NO. 06-3074 CIVIL TERM ORDER OF COURT AND NOW, March 1,2007, by agreement of counsel, the above-captioned matter is continued from the February 28, 2007 Argument Court list. Counsel is directed to relist the case when ready. 4'orge B. Faller, Jr., Esquire For the Plaintiff ~ Macdonald-Matthes, Esquire For the Defendant Court Administrator kam ,'" 00 :1 Hd Z-llVW LOOZ t ;'l\.,'! 0'" :;\. I ; i~" _:,1 "":;)LI1 JO Au v..... ; ...',~..- \ 'L~\...J~l'''.J r :J 38\J:i()-03ll.::I DAVID NEUMAN, Claimant, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v. TARGET CORPORATION, : NO.: 06-3074 MLD Owner. : CIVIL ACTION - LAW : MECHANICS LIEN PRAECIPE TO WITHDRAW MECHANIC'S LIEN David Neuman, by and through his undersigned counsel, Henry 1. Noye of Goldberg Segalla, LLP, hereby requests that the Mechanic's Lien in the above-captioned matter be withdrawn. Dated: -MM.A l.'tl 'Z OO':}- I~.~- Henry 1. oy, Esquire lD. No.: 82495 GOLDBERGSEGALLA,LLP United Plaza 30 South 17th Street, Suite 1800 Philadelphia, Pennsylvania 19103-4005 (215) 284-4501 CERTIFICATE OF SERVICE I, Henry J. Noye, do hereby certify that I served a true and correct copy of the above Praecipe to Withdraw on the 22nd day of March, 2007, to the individual listed below by United States mail, postage pre-paid. Paige Macdonald-Matthes, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. 20890 Linglestown Road, Suite 201 Harrisburg, P A 17110-9670 Attorney for Defendants AFC Washco-Carlisle Crossing, LP Washco-Carlisle Crossing, LLC and AFC Carlisle Limited Partner, LP \~~. ~l- Henry . Noye Dated: , [1, UB:.. 300573.1 ~ ~ C> 0- " ~ --u ~ ~ F ~ ~J t A:) ~ \ (") S -:1 fr:~ rnrT *"':7'#; ~i-' ~~ :):~-. <C ~i: f~.; :r~' (~ ~ ,..", = <;;:;) ....... :J: ::;> :;;0 N 0"\ -0 ::i: ~ ~ m~ -n... m6 -'J C~.) :::::1,. :;~::n ~.,..C) 0[71 :r;! ~ .r::- .. o VI