HomeMy WebLinkAbout06-3073
COURT OF COMMON PLEAS
COMMONWEALTH OF PENNSYLVANIA
CUMBERLtND COUNTY
DAVID NEUMAN,
Claimant,
ME HANICS' LIEN
No.: :(,- 307~
IACD
v.
KOHL'S PENNSYLVANIA, INC.
Owner.
MECHANICS' LIEN CLAIM (t:'~
~e,$". S,",b~VI l:/>~'
I. Claimant, DAVID NEUMAN, , files this
claim against the improvements and property at Carlisle Crossing Westminster Drive,
Carlisle, Pennsylvania 17013, for the payment of a 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 Kohl's Pennsylvania, Inc with business address
at 226 Westminster Drive, Carlisle, Pennsylvania 17013. The im rovements and the
property which are subject to the claim are located at 321 York R ad and Fairview Street,
Carlisle, Pennsylvania in South Middletown Township, Cumberl d County,
Pennsylvania and more particularly described in the Deed annexe hereto as Exhibit "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 h day of January, 2005,
wherein the claimant agreed to furnish certain labor, skills and su erintendence, 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 aga 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 d Iy served on the Owner
on April 17, 2006, by First Class Certified Mail Return Receipt equested as follows:
Bashar W. Ayoub
Manager of Construction
Kohl's Dept. Stores, Inc.
N56 WI 7000 Ridgewood Drive
Menomonee Falls, WI 53051
Ms. Donna Capichano
Director of Real Estate Eastern Region
Kohl's Dept. Stores, Inc.
N56 Wl7000 Ridgewood Drive
Memomonee Falls, WI 53051
9. This lien is claimed from January 24, 2005, and again 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 . cs Lien are true and
Neuman
hcr,...{ru:. fl. (I P,.
"flk tJ V (10~~
correct upon personal knowledge.
SubscrilJ.ed and sworn to before me
this lP''l1ay of May, 2006.
~.
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SANDRA J. SABOURIN
Notary Public, Stata Of New York
No. 02SA5008258
Qualified In Onondaga County In
Commission Expires February 16. Z02J
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2G~5 APR 20 RPI 9 36
DEED
MADE THE
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/<.-1 day of
,2005.
to/"'-L
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K-47
BETWEEN ALBERT JOHN BLAIR m andEDMUN STANTON
BLACKSMITH, Successor Trustees of the BLACKSMITH LIVIN TRUST dated
November 7, 1991 and ALBERT JOHN BLAIR Ill, ED STANTON
BLACKSMITH, GARY LIST BLACKSMITH JR. and JO MICHAEL
BLACKSMITH, as legal title holders, and W ASHCO - CARLIS E CROSSING,
LLC, ofY~w Y6:tl<, New York., as equitable title holder, here' rreferred to as:
Grantors,
and KOHL'S PENNSYLVANIA, INC., a Pennsylvania Co
principal office at N 56 W 17000 Ridgewood Drive, Memomonee
hereinafter referred to as ~
Grantee,
ration, with its
ails, WI 53051.
In consideration of One Dollar ($1.00), the receipt reof is hereby
acknowledged, the Grantors do hereby grant and convey to the Grant , its successors
and/or assigns:
ALL THAT CERTAIN tract of land situate on the wester y side of Wood
Lane, T -685 and the easterly side of American Legion Memorial Hi way, Interstate
Route 81, S.R. 0081, in South Middleton Township, Cwn rland County,
Pennsylvania, shown as Lot 4 on the "PreliminarylFina1 Subdivisio Plan for Carlisle
Crossing" as prepared by Herbert, Rowland and Grubic, Inc. dated -2-04 and more
fully bounded and described as follows:
BEGINNING at a 5/8" Iron Pin (found) on the westerly Ri t-of- Way line of
Wood Lane, T"685 and lands now or fonnerly of Charles M. Zimm rman, thence by
lands of same, North 60 degrees 43 minutes 39 minutes West 24867 feet to a 5/8'
Iron Pin (found); thence by lands of same South 38 degrees 51 mi utes 48 seconds
West 148.96 feet. to a comer of Lot 5 of the aforementioned plan; by the same
North 51 degrees 08 minutes 12 seconds West 207.20 feet; thence the same South
62 degrees 43 minutes 12 seconds West 109.17 feel to the Right- f-Way Line of a
proposed cul-de"sac; thence by continuing along the same, the f< Howing two (2)
e00~ 268 f',\Gc2J93
courses and distances; (I) by a curve to the left having a radius of 7 .00 feet and an
arc length of 206.64 feet and a chord of North 80 degrees 54 min es 00 seconds
West 139.37 feet, (2) by a curve to the right havingaradius of 50.00 feet and an arc
length of37.54 feet and a chord of g:.uth 36 degrees 02 minutes 3 seconds West
36.67 feet to a comer of Lot 7 of the aforementioned plan; thence by North 47
degrees 44 minutes 49 seconds West 357.09 feetto Lot 2 of the afore entioned plan,
thence by continuing along the same, the following seven (7) course and distances;
(1) North 31 degrees 24 mioutes 19 seconds East 153.75 feet; (2) N rth 47 degrees
44 mioutes49 seconds West 121.89 feet; (3) North 58 degrees 51 min tes 56 seconds
West 356.78 feet; (4) North 31 degrees 32 minutes 22 seconds East 50.41 feet; (5)
South 58 degrees 27 minutes 38 seconds East 313.95 feet; (6) No 31 degrees 32
minutes 22 seconds East 35.33 feet; (7) South 58 degrees 27 minutes 8 seconds East
842.10 feet to lands now or formerly of Eugene K. Settel; thence by ntinuing along
the same, the following two (2) courses and distances; (I) South 00 degrees 21
minutes 18 seconds East 124.71 feetto a Fence Post (found)(2) Sou 28 degrees 42
minutes 53 seconds East 315.43 feet, passing through a Fence Post d a' 5/8" Iron
Pin (found) to a 5/8" Iron Pin (found) on the westerly Right of-Wa line of Wood
Lane T-685; thence by same South 39 degrees 28 minutes 17 seco ds West 49.78
feet, passing through a 5/8" Iron Pin (found) to a 518" Iron Pin (fo ), the place of
beginning.
Containing 13.882 acres.
UNDER AND SUBJECT to tenns and conditions of the S bdivision and
Land Development Plan for Carlisle Crossing, South Middle n Township,
Cumberland County, Pennsylvania dater 27. 2004 d recorded
-+~IL. /~ Jb1( in Plan Book~, Page
UNDER AND SUBJECT to South Middleton TownshipIW
for Final Approval between the Township of South Middleton and ashco-<:arlisle
LLC dated February 9, 2005 and recorded February 10,2005 in Cum
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 dat
1993 and recorded in Cumberland County, Pennsylvania, Deed B
939, granted and conveyed unto Trust B of the Blacksmith Living
herein. The said Dr. Gary 1. Blacksmith, Sr. having died October I
John Blair m and EdmWld Stanton Blacksmith, succeeded as Succ
Albert John Blair III, EdmWld Stanton Blacksmith, Gary List Blac mith Jr. and
John Michael Blacksmith join herein as Grantors in their capacities
beneficiaries of the Blacksmith Living Trust.
AND the said Grantors hereby covenant and agree that they will warrant specially the
property hereby conveyed.
OOOK 268 PACf2394
IN WITNESS WHEREOF, said Grantor has hereunto set his hand
first above written.
seal the day and year
SIGNED SEALED AND DELNERED
IN THE PRESENCE OF:
i
BLACKSMITIi LIV~G TRUST
By:
Albert John Bl
as Trustee
(SEAL)
both individually and
By:
Edmund Stanton
individually and as T
(SEAL)
lacksmith - both
stee
(SEAL)
By:
Gary List Blacksmith Jr.
(SEAL)
By:
(SEAL)
President
The spouses of Grantors Edmund Stanton Blacksmith and Gary Lis Blacksmith Jr. join in
this conveyance to release whstever rights they may be construed to have.
SIGNED SEALED AND DELIVERED
IN THE PRESENCE OF:
)
(SEAL)
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
On this the 15th day of April, 2005, before me, a Notary Public in and for the
Commonwealth of Pennsylvania, personally appeared Arthur Fefferm who
acknowledged himself to be the President of AFC Carlisle, LLC, a Ne Jersey Limited
Liability Company, sole Member of AFC Washco-carlisle Crossing, LC, a
Pennsylvania Limited Company, and that as such President being auth rized to do so,
executed the foregoing instrument on behalf of such Limited Liability ompany for the
purposes therein contained and in the capacity therein stated.
IN WTINESS WHEREOF, I hereunto set my hand d offici seal.
..._ NOTARIAl. SEAl.
CAiiUiii L !-ENUR. NOTM\'
MYCOMM/~
BOOK 2
PAGE2396
COMMONWEALTH OF PENNSYLVANIA )
): ss.
COUNTY OF CUMBERLAND )
On this, the day of " ~fore
undersigned officer, personally appeared _______ , who ackno
Member of Wash co - Carlisle Crossing, LLC that he as such Member
executed the foregoing instrument for oses therein contained by si
Washco - Carlisle Crossing, LLC . self as such Member.
F, I hereunto set my hand and official seal
a Notary Public, the
ledged himself to be a
g authorized to do so,
g the name of the said
(SEAL)
Notary Public
COMMONWEALTHOFPENNSYLVANIA )
): ss.
COUNTY OF CUMBERLAND )
On this, the /.JI-t... day of )J~L ,2005, before me,
personally appeared Albert John Blair, ill, both individually and as T
satisfactorily proven to be the person whose name is subscribed to the
acknowledged that he executed the same for the purposes therein oontai
therein stated.
e undersigned officer,
ee, known to me or
. thin instrument, and
d and in the capacity
TN WI1NESS WHEREOF, I hereunto set my hand an1':cial seal
jeL
Notary Public
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COMMONWEAL 1H OF PENNSYLVANIA )
): ss.
COUNTY OF CUMBERLAND )
On this, the /J;J.. day of ~J ' , 2005, before me, e undersigned officer,
personally appeared Edmund Stanton Blacksmith, both individually and as rustee, known to me or
satisfactorily proven to be the person whose name is subscribed to the .thin instrument, and
acknowledged that he executed the same for the purposes therein con . ,ed and in the caplWity
therein stated.
IN WITNESS WHEREOF, r hereunto set my hand and
(SEAL)
COMMONWEAL 1H OF PENNSYLVANIA )
): ss.
COUNTY OF CUMBERLAND )
On this, the ~day of 4d-, 2005, before me, e undersigned officer,
personally appeared Gary List Blacksmith, Jr., known to me or satisfactorily proven to be the person
whose name is subscribed to the within instrument, and lWknowledged that e executed the same for
the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and~ial seal
'0c.k'
Notary Public
(SEAL)
COMMONWEAL 1H OF PENNSYLVANIA }
); 55.
COUNTY OF CUMBERLAND }
On this, the I1tLday of f)"...:. L , 2005, before me,
personally appeared John Michael Blac'htith, known to me or satisfactoril
whose name is subscribed to the within instrument, and acknowledged that
the purposes therein contained.
IN WITNESS WHEREOF, r hereunto set my hand
e undersigned officer,
proven to be the person
e executed the same for
(SEAL)
Notary Public
NOTARIAL SEAl.
Y CTORtA l. OTTO. NOTARY PUBUC
CA ISLE BORO" CUMBERLAND COUIlTY
MY COMMISSIOn EXPIR OfC. 2 20 6
tJ00t 268 ~ CE2398
. '.
COMMONWEALTH OF PENNSYLVANIA )
): 5S.
COUNTY OF CUMBERLAND )
On this, the /J~A...... day of /lr1 ,2005, before me, e undersigned officer,
personally appeared Margaret A. Blacksmith, known to me or satisfactorily roven to be the person
whose name is subscribed to the within instrument, and acknowledged that e executed the same for
the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand an 0 cia! se
'Itk
Notary Public
(SEAL)
COMMONWEALTH OF PENNSYLVANIA
NOTARiAl sEAl
VIet A l.. orro, <<orARY PUBLIC
CARlIS f BORa. CUI.l8ERUND COUNTY
EXl'1 0 22006
)
): ss.
COUNTY OF CUMBERLAND )
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On this, the JJ day of l"'f,J.A-<...f. , 2005, before me,
personally appeared Eldora A. Blacksmith, known to me or satisfactorily
whose name is subscribed to the within instrument, and acknowledged that
the purposes therein contained.
e undersigned officer,
roven to be the person
e executed the same for
IN WITNESS WHEREOF, I hereunto set my hand and
Ie
Notary Public
(SEAL)
I hereby certify that the precise residence and complete post offi address of the within
Grantee is N 56 W17000. Ridgewood Drive, Menomonee, WI 53051.
Esq.
J Certify this to be recorded
fn Cumberland Co nty PA
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BOO' PACE2399
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REV-liUEll(U8)
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RECOROER' us ONt y
fa...
COMMONWEAlTkOF PENNS"flVAH....
oePMTMEHTOF RE\e4VE
BUREAU OfINDlVlOt.JAL TAXES
OEPT.210803
HARfIlISBUA.G. PA 17128-01i03
REALTY TRANSFER TAX.
STATEMENT OF VALUE
BlIdNl.Wt\l:laI'
-..........
See Reverse for Instructions
C<lmjlIIlII_ _ ond fiIo in duplicsta \Mth Recaftler 01 DMda when (1) tI18 fUI valUelc.onsk!eration is net t forth in tI18 _, (2) when the deed
IIVI'ithol.tOQll Ilellmen, or by gift. or (3).tax exemptim isdaimed. A Statement of Value is not required if transfer Is wholly exempt from tax
t.Hd on: 1 flmi rei' . or bfic uti easement If more is neecleld attach additional sh s .
A CORRESPONDENT - All in be directed to the followin rson:
Nome Telephone N ber.
RobertC. Saidis, Esq, AreoCoder 1717 1243-6222
SlIIel_ City State .1 Zip~
26 West Hi Street, Carlisle, PA 17013
B TRANSFER DATA
eo
. .
Kohl's Pennsylvania, Inc.
Bbd<smilb Living Trost c/o mn.ro S. Bladcsnith
222 S. QJadalupo i4
RedctlI:Xl Bead> 0\
C PROPERTY LOCATION
N 56 W 17000 .
llri
rp
WI
S30S1
Lot 4 PrelimlFinal Sub Plan for Carlisle Crossin
nct
. OIWlShip, ough
South Middleton Township
ax
Cumberland Coun Sa.Jt:b Mid:lJ.et:on Part of 40 08 0575 00 1
0 VALUATION DATA
n lOll
1,500,000.00 + 1500000
I"" on no . r .lIr ue
X -
E X MPTION DATA
.. lint nter. n
0% 100%
2. Check Approprlata Box Below for Exempt10n Claimed
o WII or intestate succession
o T_..,.lo industrial DelHOlopnentAgency.
o Tronsfer to a trust (Attach complete copy 01 trust agreement idontlfying an beneficiaries.)
(Nameof~
FloIlurOllll
o TransleJ between principai and agent. (1\IIaeh complete copy of agencylstr..... party agroernent.)
o TransleJs 10 tho Commonwealth, the Un~ed States and Instrumontalities by gill. dedication, condom
(If c:ondernnation or in lieu of ccodemnation, attach COf1II of resolution.)
o Transfer from mortgagor to a holder of a mortgage in default Mortgage Book Number
o Correcttve or confirmatory deed. {Attach complete copy of the prior deed ~lng corrected or conti
o Statutory corporate consolidation, merger or dIvision. (Attach copy of artides.)
o Other (PIeaH explain exemption claimed. if other than listed above_) .
Of kllieu of condemnation.
. Page Numbor
Under penaw.. of law, I declare that I have examined thls State
WId belief. it is true, correct and complete.
arw:ure 0 0 espoOSI ~ rty
-I ). .~
. . eluding accompanying Inform on, and to the best of my 1f.nowledge
<.: Roboft
TO RECORD lHE DEED.
BOOK 26B PACf2fO.O
Exh, bit B
.
. .
EXHIBIT "B"
LABORIMA TERIALS
DATE FURNISHED
V~LUE/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 Kobl's and
Target stores, including site
development
reimbursements from
Kohl's and Target.
Negotiate and finalize site 10/04-12/04 $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
annroval for si<ma"e and
pylon panel location and
size for various tenants.
Direct and manage 07/05-10/05 $90jOOO
finalization of construction
of small tenant spaces,
coordination with Dal-Pos
and Granger Construction
for delivery of small tenant
soaces
Direct and oversee 12/04-1/31106 $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
chanl!e orders
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STATE OF PENNSYLVANIA
ORfGINAl:
AFFIDAVIT OF CORPORATE SERVICE
COUNTY OF CUMBERLAND
COURTDATE
CASE NUMBER ~3 073
PLAINTIFF: DAVID NEUMAN
VS.
DEFENDANT: KOHLS PENNSYLVANIA INC
I, the undersigned am an adult resident of the state and not a party to the action. I hereby
certify that on 06/12/06 at 10:20 AM I duly served the defendant
by serving, SUSAN MARIN, LEGAL ADMIN ASST
at, N56 W17000 RIDGEWOOD DR (Employment)
in the city ofMENOMONEE FALLS, county ofWAUKESHA, State of WI.
At the time of service the server knew the person so served to be the named because it was so
stated by the individual. I did place upon it the date, time, manner, and my name leaving a true and
correct copy of this: .J'.-lI....~c.~o.(\.\c..~, L, e.~
Service attempts:
Description of person served:
Gender=F Race=Caucasian Age=30's Height=5ft 7in Weight = 150-175
Hair = Brown Eyes=Brown ,GLASSES
,
Server's Name TOBY M. ffiEBER
Signature
ClientATI'Y. <O~\'e.~ .:s:~,c.,o..\. "5.e\I.S\ce.~ -rY\.c.
File number 79470
FEES: Service $45 = Total Service Fee 45.00
Subscribed and sworn tq beftJt~ ~ this 15 day of June, 2006
"'O~:~ANI\t",
.' !'- .... ... .
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.
BADGER PROCESS SERVICE. INC.
P.O. BOX 302
WAUKESHA. WI 53187-0302
262-544-5450
Notary blic, S . clUllftn. : ~ :
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My Commission ;~ir~; '8~'?.J!:.b g
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docID:210178 ...-4 iE 01'..,.'
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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
PETITION FOR DISCHARGE OF MECHANICS' LIEN UPON ENTRY OF SECURITY
Petitioners, AFC WASHCO-CARLISLE CROSSING, LP, KOHL'S PENNSYLVANIA,
INC., and TARGET CORPORATION, by their attorneys, Broujos & Gilroy, P.C., set forth
the following:
1. The above three Mechanics' Liens have all been med 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, 2005 (see paragraphs 4 of each
Mechanics' Lien).
4. All three Liens further allege that the work Neuman performed was furnished for the
erection and constrnction ofthe Carlisle Crossing Shopping Center (Carlisle Crossing)
located in South Middleton Township, Cumberland County, Pennsylvania (see
paragraph 5 of all three Mechanics' Liens).
5. Neuman claims that he is owed $405,500.00 for his work performed and has f"tled 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, 2005 and provided work through January 31, 2006 (see paragraph 7 of
each Mechanics' Lien).
7. Although Neuman has f"tIed a Mechanics' Lien against three separate properties in the
amount of $405,500.00 for each property, the Liens themselves confirm that Neuman's
total claim is only $405,500.00.
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 1510 allows for the discharge of Mechanics' Lien
upon payment into Court of the amount of the claim or upon entry of security.
-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 $405,500.00, Petitioner suggests that a
lesser amount of $200,000.00 is authorized pursuant to 49 P.S. Section 1510(0) and
based upon the following factors which are of record in the three Liens med 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, 2005, 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, 2005 for the performance of said
services.
-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 of the 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
f"tIed 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 f"tled 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. Citizens Bank is prepared to post a Letter of Credit in the amount of $200,000.00 (see
Exhibit 'B' attached) as security for discharge ofthe three Liens in question, and AFC
suggests that said Letter of Credit is satisfactory security for Neuman pending
resolution ofthe meritless claims that Neuman asserts in this matter.
16. Upon 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
proceeding with initiating litigation against AFC with the fIling of a complaint within
thirty days of AFC's posting of said security, and to further order that upon Neuman's
failure 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
Neuman would assert in litigation against AFC on this matter are arbitrary and are
meritless claims advanced only in bad faith by Neuman, and said claims will subject
Neuman to the assessment of attorneys fees incurred by AFC, Kohl's and Target
pursuant 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: July 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-
EXHIBIT "B"
LABORIMATERlALS DATE FURNISHED V f\LVElCOST
FURNISHED
Negotiate and finalize December 2003 to January $36 000
contracts for civil 2004.
engineering (HRG) and
architecture IDaI-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 fmalize
architectural building and
pylon design. Complete site
development agreements for
construction ofKobl's and
Target stores, including site
development
reimbursements from
Kohl's and Target.
Negotiate and finalize site 10/04-12104 $54 po<>
and building construction
contracts with Granger
Construction
Oversee and manage 01105-6/05 $10 ,000
construction, including but
not linlited to, store layouts,
floor finishes, sprinkler,
loading, electrical, HV AC
requirements, bathrooms,
stockrooms, storefronts and
approval for signage and
EXHIBIT
fA
pylon panel location and ,
size for various tenants.
Direct and manage 07/05-10/05 $90 000
fmalization of construction
of small tenant spaces,
coordination with DaI-Pos
and Granger Construction
for delivery of small tenant
spaces
Direct and oversee 12104-1/31106 $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
lID~~~@i
~~ Citizens Bank
341 Science Park RJad, SIJ 'e 21)1
State College, PA 16803
July 13, 2006
Hubert X. Gilroy, Esquire
Buoujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, P A 17013
Dear Mr. Gilroy:
Citizens Bank is prepared to post a Letter of Credit ("LOC") on behalf of
APC Washco-Carlisle Crossing, LP ("APC") in the amount of $200,000,00 in order to
secure the discharge of Mechanics' Liens filed against properties owned by APC, Target
Corporation and Kohl's Pennsylvania, Inc. located at Carlisle Crossing, South Middleton
Township, Cumberland County, PA.. The LOC will be subject to the terms and
conditions of a Court Order issued by the Cumberland County Court at docket numbers
06-3073,06-3074 & 06-3075,
Sincerely,
~f~
Gregory E. Dreibelbis
Vice President
Commercial Real Estate
EXHIBIT
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DAVID NEUMAN,
Claimant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
No. 06-3073 V
MECHANICS' LIEN
KOHL'S PENNSYLVANIA, INC.,
Owner
JUL182~
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
COURT ORDER
AND NOW, this 1f{;1: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. ~ of
the C~mberland County Courthouse on the J):1J- day Of~' , Q'0 .2006
at ,\. ~ ~ m., at which time matters raised in this Petition shall be c!)
Judge
cc: Hubert X. Gilroy, Esquire
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, P A 17013
cc: Mr. David Neuman
712 Thomtree Hill Drive
Fayetteville, NY 13066
A.!..I'"
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DAVID NEUMAN,
Claimant
'-
v
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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 W ASHCO-CARLISLE
CROSSING,LP,
Owner
ORDER OF COURT
AND NOW, this '271- day of , 2006, upon
Stipulation of the parties as set forth in the attached Exhibit A, it I rdered and directed as
follows:
1. AFC Washco-Carlisle Crossing, LP, shall file 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 Mechanics' 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 filed
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 filed 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, III, Esquire
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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
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID NEUMAN,
Claimant
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 ~
7- ;)../-0 ((J
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Date:
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 1571h 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 Washco.
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 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
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 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 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 filed 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:
Cc: Hubert X. Gilroy, Esquire
Ivo V. Otto, III, Esquire I
EXHIBIT
W;dgar B. Bayley, Judge
c
91
DAVID NEUMAN,
Claimant
v
IN THE COURT OF COMMON PLEAS OF
CUMBERL~,PENNSYLVANIA
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
PRAECIPE
TO THE PROTHONOTARY:
Consistent with the Order of Court issued on July 27, 2006 in the above cases, please
accept for filing a Letter of Credit from Citizens Bank in the amount of $300,000.00.
Respectfully submitted,
Hubert X. ilroy, Esquire
Broujos Gilroy, P.C.
4 N. Hanover Street
Carlisle, PA 17013
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HUBUr X. GtLaOY
BROUJOS & GILROY, P.C.
ATIORNIl\'S AT LAW
4 NORIH HANOVER STRBBT
CARLISLE, PENNsYLVANIA 17013
TIn.BPHoNB: (717) 243-4574
FACSom.Jl: (717) 243-8227
jbroujoeObroujoagl1roy.com
hgIIroyebrou/<MslIror.com
August 29, 2006
NON-TOLL I'OIt HAIlIUS8VRG ARIIA
717-766-1690
Curtis Long, Prothonotary
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Re: Neuman vs. Kohl's, No. 06-3073
Neuman vs. Target, No. 06-3074
Neuman vs. AFC Washco, No. 06-3075
Dear Curt:
Enclosed for filing is a Praecipe in the above three cases whereby we are filing with your
office a Letter of Credit consistent with a July 26, 2006 Order of Court. I am giving you
this Praecipe in triplicate so that it can be filed with each separate tile. My suggestion is
that the original Letter of Credit be filed at Docket No. 06-3073.
Thank you for your attention to this filing.
Sincerely yours,
,
Hubert X. Gilroy
Pn
Enclosure
Cc: George B. Faller, Jr., Esquire
.
~~ Citizens Bank
International Division
20 Cabot Road
Medford, MA 02155 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
111 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
CIO CUMBERLAND COUNTY PROTHONOTARY CURTIS R. LONG ESQ.
CUMBERLAND COUNTY COURTHOUSE
ONE COURTHOUSE SQUARE
CARLISLE, PA 17013
CONTINUED ON NEXT PAGE
URBS
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~~ Citizens Bank
International Division
20 Cabot Road
Medford, MA 02155 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
aRBS
'. .
~~ Citizens Bank
International Division
20 Cabot Road
Medford, MA 02155 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
MARTS ON 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.
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AUTHORIZED
aRBS
DAVID NEUMAN,
Claimant
v
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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, tIrl. <f-o doy of ~ ,2006,'
appearing that the Letter of Credit as contemplated by Paragraph 2 of this Court's prior
Order of July 27, 2006, has been filed 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
Crossing, LP, at Docket No. 06-3075.
/
Cc: .,Hubert X. Gilroy, Esquire
~eorge B. Faller, Jr., Esquire ~
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Claimant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
DAVID NEUMAN,
v.
NO. 06-3073 MLD
KOHL'S PENNSYLVANIA, INC.,
Owner
MECHANIC'S LIEN
V'
Claimant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
DAVID NEUMAN,
v.
NO. 06-3074 MLD
TARGET CORPORATION,
Owner
MECHANIC'S LIEN
Claimant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
DAVID NEUMAN,
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, Es
I. D. No. 29943
Broujos & Gilroy, PC
4 North Hanover Street
Carlisle, PA 17013
Telephone: (717) 243-4574
(Attorney for Owners)
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, PENNSYL VANIA
v.
NO. 06-3074 MLD
TARGET CORPORATION,
Owner
MECHANIC'S LIEN
DAVID NEUMAN,
Claimant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
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 AFC 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. 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 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.
6. By Order dated July 27,2006, upon consideration of the 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 ofthe 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 ofthe 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. 6 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 of labor 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. 9 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. ~
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 ofthe
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 Distin2uish 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 1 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 of the 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,-r 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 of the subject properties. (Mechanic's Lien Claims at Exhibit "B".)
31. In each ofthe 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. 9 1201(4) &
(5).
35. Claimant's mechanic's lien claim must be stricken pursuant to 49 P.S. 9 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 I 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
security 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.e.
October ~, 2006
BY:
t/iI-
Hubert X. Gilroy, quire
(Attorney for 0 ers)
I. D. No. 29943
4 North Hanover Street
Carlisle, P A 17013
Telephone: (717) 243-4574
8
Claimant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
DAVID NEUMAN,
v.
NO. 06-3073 MLD
KOHL'S PENNSYLVANIA, INC.,
Owner
MECHANIC'S LIEN
Claimant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
DAVID 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
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 for Claimant)
Kenneth M. Alweis, Esquire
Goldberg SegaUa, LLP
5789 Widewaters Parkway
Syracuse, NY 13214
(Attorney for Claimant)
October Q, 2006
Hubert X. Gilroy, E uire
Broujos & Gilroy, P.c.
4 North Hanover Street
Carlisle, PAl 70 13
(Attorney for Owners)
9
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DA VID 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
DA VID NEUMAN,
Claimant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
NO. 06-3074 MLD
TARGET CORPORATION,
Owner
MECHANIC'S LIEN
DAVID NEUMAN,
Claimant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
NO. 06-3075 MLD
AFC W ASHCO-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
'"",,
DA VID 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
DA VID 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 WASHCO-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 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)
Kenneth M. Alweis, Esquire
Goldberg Segalla, LLP
5789 Widewaters Parkway
Syracuse, NY 13214
(Attorney for Claimant)
December 8, 2006
Hubert X. Gilroy squire
Broujos & Gilr , P.C.
4 North Hanover Street
Carlisle, P A 17013
(A ttorney for Owners)
. . ,
JOHN H. BROUJOS
HUBur X. GILllOY
BROUJOS & GILROY, P.C.
ATIORNEYS AT LAW
4 NORTH HANOVER STREET
CARLISLE, PENNSYLVANIA 17013
TELEPHONE: (717) 243-4574
FACSIMILE: (717) 243-8227
jbroujosObroujosgilroy.com
hgilroyObro~josgilroy.com
November 17, 2006
NON-ToLL FOR HAIuusBURG 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 Washco 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 have 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 correspondence is beinf! transmitted via facsimile
EXHIBIT
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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
DAVID NEUMAN,
v.
NO. 06-3074 MLD
T ARGET 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 i
Kenneth M. Alweis, Esquire . /;r-8 Dc'
Hubert X. Gilroy, Esquire
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DAVID NEUMAN,
Claimant
v
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 06-3073 V MECHANICS' LIEN
KOHL'S PENNSYLVANIA, INC.,
Owner
DAVID NEUMAN,
Claimant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v
No. 06-3074
MECHANICS' LIEN
TARGET CORPORATION,
Owner
DAVID NEUMAN,
Claimant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
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
Washco-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.
..
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 WiIli9ms & Otto
10 Eastffigh Street () _(g -o{p fl. _'LL-\ ~
Carlisle, PA 17013 / .....---,~--
Kenneth M. Alweis, Esquire
Goldberg, SegaIIa, LLP
5789 Widewaters Parkway
Syracuse, NY 13214
cc:
.
DAVID NEUMAN,
Claimant
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
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
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.
December I ~ , 2006
BY:
Hubert X. Gilroy, squire
(Attorney for 0 ers)
I. D. No. 299
4 North Hanover Street
Carlisle, P A 17013
Telephone. (717) 243-4574
December'~, 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
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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 in full)
DAVID NEUMAN,
Claimant
v.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
: NO. 06-3073 MLD ~
: CIVIL ACTION - LAW
KOHL'S PENNSYL VANIA, INC.,
Owner
: MECHANICS LIEN
DAVID NEUMAN,
Claimant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: 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 ASHCO-CARLISLE
CROSSING, LP,
Owner
: MECHANICS LIEN
1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.):
Defendants' Preliminary Obiections to Claimants Mechanics Lien Claim and Motion for
Release of Security'
I 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.
,.
"
2. Identify counsel who will argue cases:
(a) for plaintiff: (Claimant)
George B. Faller, Jr., Esq. and Michae J. Collins, Esq., Martson Law Offices, 10 East
(Name and Address)
High Street, Carlisle, PA 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 20 I. 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
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Signature
Paige Macdonald-Matthes, Esquire
Print your name
Date: 01/30/07
Attorney for Owners (Defendants)
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DAVID NEUMAN,
Claimant
v I
I
I
KOHL'S PENNSYLVANIA, INC. ,
Owner 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 vi
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 WlTHDRAWAL AND ENTRY OF APPEARANCE
,
I
Please withdraw the appearance of Hubert X. Gilroy,
Esquire, as attorney for the Owners in the above-captioned
matters.
~,~o 7
HU~Gi~Y' Esquire
Martson, Deardorff, Williams
Otto, Gilroy & Faller
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Dated:
-,....
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Please enter the atpearance of
Esquire, as attorney fo the Owners
Paige Macdonald-Matthes,
in the above-captioned
Matters.
Dated: ~1'5lot1
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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
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DAVID NEUMAN,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
~ NO.: 06-3073 MLD /'
Claimant,
v.
KOHL'S PENNSYLVANIA, INC.
Owner.
: CIVIL ACTION - LA W
: MECHANICS LIEN
DAVID NEUMAN,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Claimant,
v.
: NO.: 06-3074 MLD
TARGET CORPORATION,
Owner.
: CIVIL ACTION - LAW
: MECHANICS LIEN
DAVID 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 - LAW
: 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.
G~~
I.D. No.: 49813
MARTS ON DEARDORFF WILLIAMS & OTTO
10 East High Street
Carlisle, PA 17013
(717) 243 3341
Dated: 2- , "a I
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Dated:
2--(0-6t
Michael 1. Collins, Esqu e
I.D. No.: 200427
MARTSON DEARDORFF WILLIAMS & OTTO
10 East High Street
Carlisle, P A 17013
(717) 2433341
Please enter the appearance of Henry 1. Noye, Esquire, of GOLDBERG SEGALLA,
LLP, as attorney for the Plaintiff in the above-captioned matter.
Dated: Z - 70- 0 1-
l~~- Ntr
Henry 1. No e, EsqUIre
I.D. No.: 82495
GOLDBERG SEGALLA, LLP
United Plaza
30 South 17th Street, Suite 1800
Philadelphia, Pennsylvania 19103-4005
(215) 284-4501
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15
David Neuman
v.
Kohl's Pennsylvania, Inc.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 06-3073 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.
J!eorge B. Faller, Jr., Esquire
For the Plaintiff
.fiige Macdonald-Matthes, Esquire
F or the Defendant
Court Administrator
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3'JI::\:\0-031\:1
DAVID 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
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: t(cv~ ~ l.. 8.001-
1~.tr1-
Henry 1. e, EsqUIre
J.D. No.: 82495
GOLDBERG SEGALLA, LLP
United Plaza
30 South 17th Street, Suite 1800
Philadelphia, Pennsylvania 19103-4005
(215) 284-450 I
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 Wash co-Carlisle Crossing, LP
Washco-Carlisle Crossing, LLC and
AFC Carlisle Limited Partner, LP
\b~'~-
Henry. oye
Dated: '?/'I."lo'1--
300537.1
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