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HomeMy WebLinkAbout07-0135 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PCENNSYLVANIA No. 67-12S- --ou" CIVIL ACTION NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to def DAUPHIN OIL COMPANY, INC. Plaintiff, V. GVH (CARLISLE), L.P. Defendant against the claims set forth in the following pages, you must t action within twenty (20) days after this Complaint and Notice served, by entering a written appearance personally or by attorne and filing in writing with the Court your defenses or objecti to the claims set forth against you. You are warned that if fail to do so the case may proceed without you and a judgment ma be entered against you by the Court without further notice for money claimed in the Complaint or for any other claim or relie requested by the Plaintiff You may lose money or property other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. I SAMIS, FLOWER & LINDSAY nrro?.?nuw 26 West High Street Caztisle, PA YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 1 • SAMIS, FLOWER & LINDSAY arrotemtsnT uw 26 West High Street Carlisle, PA DAUPHIN OIL COMPANY, INC. Plaintiff, V. GVH (CARLISLE), L.P. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. ©7- !3S" ell, ?j..? CIVIL ACTION COMPLAINT Plaintiff, Dauphin Oil Company, Inc., through its attorne Saidis, Flower & Lindsay, commences this action for affirmati injunctive relief, money damages, and attorneys fees, arisi from Defendant's refusal to authorize the release of escr funds to Plaintiff. 1. Plaintiff, Dauphin Oil Company, Inc., is a Pennsylvania corporation (hereinafter the "Seller"), with a place of business located at 815 Newville Road, Carlisle, Cumberland County, PA 17013. 2. Defendant, GVH (Carlisle), L.P., is a Tennessee Limited Partnership (hereinafter the "Buyer"), with its primary place of business located at 323 Union Street, Ste. 300, Nashville, TN 37201. 3. Martson, Deardorff, Williams & Otto (hereinafter "Escrow Agent"), not a party to this action, is a Professional Corporation, with its primary place of business at Ten East High Street, Carlisle, PA 17013. 1 t SAMIS, LENDSAY nnUMMU N 26 West High Street Carlisle, PA 4. On or about September 25, 2002, Seller and Buye: entered into a written Purchase & Sale Agreement, a: subsequently amended (the "Contract"), by which Seller agreed tc sell to Buyer, and Buyer agreed to purchase from Seller, 42! South Hanover Street, Borough of Carlisle, Cumberland County, Pennsylvania (the "Property"). A true and correct copy of the Purchase & Sale Agreement is attached hereto, made a part hereof and marked Exhibit "A". 5. On or about December 15, 2004, Seller and Buyer, along with the Escrow Agent, entered into an Escrow Agreement (the "Escrow Agreement"), providing for the sum of $100,000.00 to be withheld from the purchase price and placed in an interest-bearing account at M & T Bank, pending Seller's fulfillment of certain obligations as set forth in Paragraph Three of the Escrow Agreement. A true and correct copy of the Escrow Agreement, which was fully executed by the parties, is attached hereto, made a part hereof and marked Exhibit "B". 6. On or before September 5, 2006, Seller supplied Buyer with all the items listed in paragraph 3 of the Escrow Agreement, thereby fulfilling all of Seller's obligations under the Escrow Agreement. 7. On December 1, 2006, the Seller, once again, provided all information required by paragraph 3 of the Escrow Agreement to Buyer. A copy of the December 1, 2006 notice is attached 2 C. FLOWER & LINDSAY .?. rw 26 West High Street Carlisle, PA hereto, made a part hereof and marked Exhibit "C". 8. Paragraph 3 of the Escrow Agreement required Seller and Buyer to direct the Escrow Agent to make disbursements of the sum held in Escrow upon receipt of the items provided on or before September 5, 2006. 9. The Buyer has refused to communicate with the Escrow Agent or direct the Escrow Agent to make disbursements. 10. Buyer wrongfully and without valid grounds, refused and continues to refuse to authorize the release of Escrow funds. 11. Buyer's failure to authorize the release of the Escrov Funds in accordance with the Escrow Agreement constituted a breach of and default of the Escrow Agreement. 12. Seller is entitled to affirmative injunctive relief and specific performance to cause the Buyer to authorize the release of the Escrow Funds to Seller, together with all interest. WHEREFORE, Plaintiff demands judgment against the Defendan and requests Your Honorable Court to order the following relief: A. To order the Escrow Agent to pay over to Plaintiff th sum of one hundred thousand ($100,000.00) dollars, together wit] all interest, which has accrued. B. To order the Defendant to pay all costs of these proceedings, including without limitation, attorneys' fees, 3 Court costs and expenses. C. To order the Defendant to pay all costs incurred k the Escrow Agent in responding to this proceeding. D. To award the Plaintiff counsel fees due to tr Defendant's dilatory, vexatious and bad faith conduct in thi matter. E. To enter any and all further relief Your Honorabl Court deems appropriate. Respec? uly Submitted, Dated: Robert C. Saidis, Esquire Attorney ID 21458 Saidis, Flower & Lindsay Attorneys for Plaintiff 26 West High Street Carlisle, PA 17013 (717) 243-6222 SAMIS, FLOWER & LINDSAY is•.vuw 26 West High Street Carlisle, PA 4 VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Dauphin Oil Company, Inc. SAMIS, FLOWER & LINDSAY 26 West High Street Carlisle, PA DATED THIS INSTRUMENT PREPARED BY: Sam D. Hodges, III Grissim and Hodges 323 Union Street, Suite 400 Nashville, TN 37201 ESCROW AGREEMENT THIS AGREEMENT, made as of the ? S day of December, 2004, by and among DAUPHIN OIL COMPANY, INC., a Pennsylvania corporation (the "Seller"); GVH (CARLISLE), L.P., a Tennessee Limited Partnership (the "Purchaser"); and Martson, Deardorff, Williams & Otto, a Professional corporation (the "Escrow Agent"). WITNESSETH: WHEREAS, by Purchase & Sale Agreement dated as of September 25, 2002, as subsequently amended (the "Contract"), Seller agreed to sell to Buyer, and Buyer agreed to purchase from Seller, certain property located in Cumberland County, Pennsylvania, as more particularly described therein (the "Property") according to the terms and conditions contained therein; and WHEREAS, in connection with Buyer's anticipated purchase of the Property, Buyer has obtained from Whitestone Associates, Inc. ("Buyer's Engineer") a Phase I Environmental Site Assessment (the "Phase I") dated April 2, 2004, Project No. WP03-5885 (the "Phase I") and a Limited Phase II Site Investigation dated May 5, 2003, Project No. WP03-5993 (the "Phase II") on the Property (the Phase I and the Phase II being hereinafter referred to as "Buyer's Environmental Reports"); and WHEREAS, Buyer's Environmental Reports revealed evidence of recognized environmental conditions with regard to the Property's previous use as automobile repair facility and gasoline station; and WHEREAS, Section 8(d) of the Contract provides that Seller shall indemnify Buyer and hold Buyer harmless from and against any and all "claims, obligations and liabilities and all costs, expenses and attorneys' fees incurred, based upon or arising out of any obligation, liability, loss, damage or expense, of whatever kind of nature, contingent or otherwise, known or unknown, incurred under, or imposed by any provision of federal, state or local law or regulation, or common law, pertaining to health, safety or environmental protection, including without limitation, such laws or regulations pertaining to the storage, transportation, handling, disposal, discharge, presence or use of hazardous materials or wastes," which indemnification shall survive the closing of the sale of the Property to Buyer; and WHEREAS, in connection with the sale of the Property to Buyer, Seller has undertaken to remediate the environmental contamination evidenced by Buyer's Environmental Reports; and EXHIBIT "B" WHEREAS, Seller has contracted with Environmental Remediation & Recovery, Inc. ("Seller's Engineers"), under their Project No. 2004.14, to supervise the remediation of the Gas and Automotive Contamination, as defined below, on the Property (the "Property Clean-up"); and WHEREAS, during the process of remediation, Seller's Engineers have identified evidence of additional contamination of the Property (the Buyer's Environmental Reports and the additional reports of Seller's Engineers are hereinafter collectively referred to as the "Environmental Reports," and the contamination of the Property reflected by the Environmental Reports is hereinafter collectively referred to as the "Gas and Automotive Contamination"); and WHEREAS, as of the date hereof, the remediation of the Gas and Automotive Contamination has not yet been completed; and WHEREAS, Seller and Purchaser have agreed to proceed with the Closing, with the sum of One Hundred Thousand and No/100 Dollars ($100,000.00) to be withheld from the Seller's sale proceeds from the Property (the "Escrow Fund"), deposited in escrow and disbursed in accordance with the provisions of this Agreement. NOW, THEREFORE, the parties hereto agree as follows: 1. Establishment of the Escrow Fund. The Escrow Fund shall be placed in an escrow account and disbursed in accordance with the provisions of this Agreement. The Escrow Fund shall be placed in an interest bearing account at earned on the Escrow Fund shall be added to the Escrow Fund and become a -part then of.t The Escrow Agent shall not be responsible for any interest except for interest as it actually received, nor shall the Escrow Agent be responsible for the loss of any interest arising from the closing of any account or the sale of any certificate of deposit or other instrument prior to maturity. The Escrow Agent hereby acknowledges its receipt of the Escrow Fund and agrees to hold and disburse the same in accordance with the provision so this Agreement. 2. Property Clean-up. (a) The Seller shall furnish all labor, materials, and equipment for the Property Clean- up. All work shall be in accordance with and under the supervision of Seller's Engineers, and shall comply with the rules, regulations and standards of the Pennsylvania Department of Environmental Protection ("PADEP"). The Seller shall be responsible for all costs of the Property Clean-up, including but not limited to any monitoring requirements and follow-up environmental reports necessary to document the Property Clean-up. The Property Clean-up shall include any additional petroleum related contamination discovered by Seller, Seller's Engineers, or Youghiogheny Industries, Inc. ("Seller's Contractor"), in the process of the Property Clean-up. The Property Clean-up shall also include any additional petroleum related contamination discovered by Purchaser, Purchaser's Engineers, or Schaerer Contracting 2 ? s Company, Inc. ("Purchaser's Contractor"), in conducting site work, excavation for footings, or related activities on the Property. (b) Seller agrees to complete the Property Clean-up by December 30, 2004, subject to weather and site conditions permitting such completion date, and Seller shall cause all work herein described and the several parts thereof to be performed continuously, energetically and expeditiously in substantial conformity with the requirements of this Agreement. 3. Disbursements. The Seller and Purchaser shall direct Escrow Agent to make the disbursement of all sums held in the Escrow Fund upon receipt of the following items: (a) A certificate of Seller's Engineers stating that the Property Clean-up has been completed in a good and workmanlike manner and in material compliance with PADEP requirements. (b) Delivery to Purchaser of written notification from PADEP of a "No Further Action Letter" and a release of Seller, and Seller's successors and assigns, including Purchaser, and its successors and assigns, from environmental liability pursuant to Act 2 of the PADEP Rules and Regulations. (c) An affidavit of the Seller's Engineers and/or related contractors, addressed to the Seller and Purchaser, stating that all suppliers of labor and/or materials for the Property Clean-up have been paid without any continuing dispute over the charges or value of their materials or services, or that the final disbursement will be sufficient to pay all such charges in full, with no such dispute. 4. Default. (a) The Seller hereby agrees that if the Seller fails diligently to pursue the work required to be done under this Agreement or fails to make progress required by this Agreement or if the Seller shall abandon work or any part thereof or fails in any way to perform the terms of this Agreement on its part to be performed, the Purchaser shall have the right, if it so elects after ten (10) days' written notice to Seller and Escrow Agent and without prejudice to any other rights it may have, to take any other steps it deems advisable to secure the necessary labor and material to complete the Property Clean-up. (b) In the event a default is declared hereunder, the Escrow Agent is authorized to make disbursement from the Escrow Fund to pay the cost of completing the Property Clean-up upon direction from the Purchaser as provided herein. The Seller acknowledges that the Purchaser will rely on the Seller's timely performance of the work and completion of the work on or before the date specified herein. 5. Escrow Agent's Duties, (a) If any disagreement or dispute shall arise between or among any of the parties hereto and/or any other persons resulting in adverse claims and demands being made for the Escrow Fund, whether or not litigation has been instituted, then, in any such event, at the Escrow Agent's option: (i) the Escrow Agent may refuse to comply with any claims or demands on it continue to hold the Escrow Fund until the Escrow Agent receives written notice signed by the Seller, the Purchaser and any other person who may have asserted a claim to or made a demand for the Escrow Fund, directing the disbursement of the Escrow Fund in accordance with said direction, and the Escrow Agent shall not be or become liable in any way or to any person for its refusal to comply with such claims or demand; (ii) in the event the Escrow Agent shall receive a written notice advising that litigation over entitlement to the Escrow Fund has been commenced, the Escrow Agent may deposit the Escrow Fund as provided in subsection (iii) below; or (iii) the Escrow Agent may (but shall not be required to) take such affirmative steps as it may, at its option, elect in order to substitute another impartial party to hold the Escrow Fund or to deposit the same in a court of competent jurisdiction and to commence an action for interpleader, the costs thereof to be borne by whichever of the Seller and the Purchaser is the losing party, and thereupon the Escrow Agent shall be released of any and all liability thereunder. The Seller and the Purchaser jointly and severally agree to reimburse the Escrow Agent for any and all out-of-pocket expenses incurred in the discharge of its duties under this Article, including, but not limited to, attorneys' fees. The Escrow Agent acknowledges that it shall not be entitled to any fees or other compensation for the performance of its duties hereunder. (b) It is expressly understood that the Escrow Agent acts hereunder as an accommodation to the Seller and the Purchaser and as a depositary only and is not or liable in any manner whatever the sufficiency, correctness, genuineness responsible or validity of any instrument deposited with for it, or for the form of execution of such or for the identity, authority or right of an instruments the Escrow the same or for the terms and conditions of any instrumntpurosuant to whichr Agent or the parties may act. (c) The Escrow Agent shall not have any duties or responsibilities except those set forth in this paragraph and shall not incur any liability in acting upon an signature, notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Agent to be genuine, and the Escrow Agent may assume that any person 4 Purporting to provide it any notice on behalf of any party in accordance with the provision hereof has been duly authorized so to do. (d) The Escrow Agent may act or refrain from acting in respect of any matter referred to herein in full reliance upon and by and with the advice of counsel which may be selected by it, and shall be fully protected in so acting or refraining from acting upon the advice of such counsel. (e) The Seller and the Purchaser hereby jointly and severally indemnify and agree to indemnify and hold the Escrow Agent harmless from any and all loss, damage, claims, liabilities, judgments and other costs and expenses of every kind and nature which may be incurred by the Escrow Agent by reason of its acceptance of, and its performance under, this Agreement (including, without limitation, attorneys' fees), except for actions by the Escrow Agent constituting willful misconduct or gross negligence. (f) The Escrow Agent shall not be responsible for any act or failure to act on its part except in the case of its own willful default or gross negligence. The Escrow Agent shall be automatically released from all responsibility and liability under this Agreement upon the Escrow Agent's delivery or deposit of the Escrow Fund, in accordance with the provisions of this Agreement. (g) The Seller and the Purchaser agree that if either shall deliver to the Escrow Agent a written demand for the Escrow Fund or any part thereof, the party making such demand shall, promptly after delivering such demand to the Escrow Agent, deliver a copy of such demand to the other party, together with a statement of the facts and circumstances underlying the demand; provided, however, that nothing in this subparagraph (g) shall have any effect whatsoever upon the Escrow Agent's rights, duties and obligations under the preceding parts of this Agreement. 6. Miscellaneous. (a) This Agreement shall be governed by and in accordance with the laws of the State of Pennsylvania. (b) All notices, demands or requests made pursuant to, under or by virtue of this Agreement must be in writing and delivered to the party to which the notice, demand or request is being made by deposit in the United States mail, "Certified - Return Receipt Requested", or by deposit with a national recognized overnight courier service marked for next day delivery, addressed as follows: To the Seller: Dauphin Oil Company, Inc. P. O. Box 600 Carlisle, Pennsylvania 17013 5 With copy to: Martson Deardorff Williams & Otto, a Professional corporation Ten East High Street Carlisle, Pennsylvania 17013-3015 Attn: No V. Otto, III, Esq. To the Purchaser: GVH (Carlisle), L.P. 323 Union Street, Suite 300 Nashville, Tennessee 37201 Attn: Greg V. Hurley With copy to: Sam D. Hodges, III, Esq. Grissim and Hodges 323 Union Street, Suite 400 Nashville, Tennessee 37201 To the Escrow Agent: Martson Deardorff Williams & Otto, a Professional corporation Ten East High Street Carlisle, Pennsylvania 17013-3015 Attn: No V. Otto, III, Esq. (c) This Agreement may not be changed, modified, or terminated except by an instrument executed by the parties hereto. (d) The terms and provisions of this Agreement shall be binding upon and the benefits thereof shall inure to the parties and their respective heirs, personal representatives, successors and assigns. (e) The terms of this Agreement shall be construed under the laws of the State of Pennsylvania. (0 The sections of this Agreement are intended to be severable. If any term, covenant, or provision of this agreement shall be held to be invalid, illegal or unenforceable this agreement shall be construed without such term, covenant or provision and shall remain in full force and effect. (g) Nothing contained herein or in any related document shall be deemed to render Purchaser or Seller a partner of the other for any purpose. (h) This Agreement constitutes the sole and entire Agreement between the parties hereto, and no modifications of this Agreement shall be binding unless attached hereto and signed by all parties to this Agreement. No representations, promise, or 6 inducement to this Agreement not included in this Agreement shall be binding upon any party hereto. W This Agreement may be executed in one or more counterparts, all of which together shall constitute a single Agreement and each of which shall be an original for all purposes. Execution of this Agreement may be evidenced by facsimile transmission of any party's signature, with original signatures to follow by U.S. Mail. (Signature Page to Follow) IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto have executed this Agreement as of the day and year first above written, but actually executed on the dates set forth opposite each party's respective signature below. eto SELLER: DAUPHIN NY, INC. Dated: Z (?? Title: PURCHASER: GVH (CARLISLE), L.P., a Tennessee limited partnership Dated: BY: GVH, INC., a Tennessee corporation, General Partner BY: Title: ESCROW AGENT: Dated: 44?,- MARTSON, DEARDORFF, WILLIAMS & OTTO, a Professional Corporation \. BY: Title: 8 STATE OF ";%;? ,•..r? .,,; , COUNTY OF On this, the t personall a eared d, of November, 2004, before me, the undersigned officer, Y p ? f `= who acknowledged himself to be the of DAUPHIN OIL COMPANY, INC a he, as Pennsylvania corporation, and that the purpose therein contained be in sithori ed to ndo so, ame executed the foregoing instrument for the corporation b of the corporation. Y himself as Witness my hand, at office, this ' day of z , 2004. NOTARY PUBLIC STATE OF MY Commission Expires: TARIAL SEAL COUNTY OF V1 R Y PUBLIC CARLISLE BORO. CI?MBERLAND COUNTY MY COMMISSI IXPIRES DEC. 2 2006 On this, the day of November, 2004, before me, the undersigned officer, personally appeared Gregory V. Hurley, who acknowledged himself to be the President of GVH Inc., a Tennessee corporation and the sole General Partner of GVH (CARLISLE L.P. ' a Tennessee limited partnership, and that he, as President of the General Partner, being authorized ' to do so, executed the foregoing instrument for the purpose therein contained by )' signing the name of the limited partnership by himself as President of the General Partner. Witness my hand, at office, this day of , 2004. NOTARY PUBLIC My Commission Expires: 9 STATE OF 4' r ,,.,1v , r ) COUNTY OF !' si 1 ? ) On this, the 1 „ personally appeared t't day 'of ber, 2004, before me, the undersigned officer, " , - _ ?- who acknowledged himself to be the corporation, and that he, as of Martson, Deardorff, Williams & Otto, a professional of the professional corporation, being authorized to do so, executed the foregoing instrument for the Pu rp!ose therein contained by signing the name of the professional corporation by himself as Witness my hand, at office, this - ^ day of 2004. NOTARY PUBLIC My Commission Expires: NITARIAI SEAL CARL SLOE BORO COIIMBErRAL ND CONT Y MY COM IS 101 PIRE E 2006 10 PURCHASE & SALE AGREEMENT Sao Aofli'ODOA 045REEMENT made and entered into this day P z rt ray `? w - ? ? by and between ?•n ok1 10 C_ hereinafter called "Seller" d GVH L.P. a Tennessee Limited Partnership whose principle address is 577 Harpeth Trace Drive, Nashville, Tennessee 37221 hereinafter called "Purchaser". WITNESSETH: WHEREAS, Seller is the owner in fee simple of a certain parcel or tract of land, being 1-131 S • 1A VAo4 e? r- , more specifically known as '?" r_ eA # 0 3 - 2 z - o qgS- oo ? containing an area of I . OS acres of land, more or less; as recorded in Deed Book/Volume 22 , Page o 3 in G ?,er(a?d County, dooni .., ; and outlined in Exhibit "A" and annexed hereto and made a part hereof; and NOW THEREFORE, in consideration of the premises, the promises and covenants hereinafter set forth, and the mutual advantages and benefits accruing hereunder, Seller hereby grants, bargains, and extends unto Purchaser, its successors and assigns, the right privilege and option to purchase the property for the consideration and subject to the terms and conditions hereinafter set forth: 1. Consideration for Purchase. The aforesaid agreement to purchase the property is granted in consideration of the payment herewith of the sum of US ($ t, o00 • OZ ) ©-n e- Dollars Cash, which sum, together with any additional sums paid for extensions of the purchase agreement is hereinafter called "Earnest Money", by Purchasers check payable to the order of Seller, the receipt of which, subject to collection, is hereby acknowledged and held by S and T Bank of Indiana, Pennsylvania as escrow agent. 2. Term of Agreement. This Agreement shall begin on the date this Purchase Agreement is executed by both Seller and Purchaser ("the Effective Date of Agreement") and shall extend for a period ending at midnight on the 180th day following the Effective Date of Agreement unless sooner exercised. 3. Price and Terms of Payment. If the Purchase Agreement herein granted is exercised, the price to be paid and-accepted for the property is US ($ t ooo,o? • a? ) On e- h'lo n tbammAl dollars cash. The price to be paid and accepted shall be paid by cashier's or certified check or wire transfer at the closing. All Earnest Money theretofore paid shall be credited toward the price. 4. Exercise of Purchase Agreement to close. Exercise of the Purchase Agreement herein granted shall be by written notice thereof given by Purchaser to Seller in the manner hereinafter provided during the term of this Purchase Agreement or any extension thereof. 5. Renewals and Extensions. The Purchaser may extend this Purchase Agreement for a period of one hundred eighty (180) days by the payment of US ($ \ I ODo . o- } On e- Thousand Dollars cash. Such payment shall be applicable to the punccase price. 6. Time and Place of Closing. Upon timely and proper exercise of the Purchase Agreement as herein provided, the purchase and sale of the property shall be consummated not less than ten (10) days or more than sixty (60) days next following the date of the notice of exercise to close on such date and time as Purchaser may designate in written notice to Seller. EXHIBIT "A" 4. 4t the closing. (a) Seller shall execute and deliver to Purchaser a General Warranty Deed in the form generally in use in the County or Township where subject property is located, conveying fee simple, merchantable title to the property, free and clear of all liens and encumbrances. All revenue, documentary, and/or transfer stamps or taxes, if any incident to said deed of conveyance be equally paid by Seller and Purchaser. (b) Purchaser shall deliver to Seller a check for the amount of the purchase price less all Earnest Money paid and subject to the adjustments specified in this Agreement. (c) Real estate taxes,utilities(if any),rents(if any),shall be prorated between Seller and Purchaser to the date of closing. 8. Other Covenants and Conditions. It is further understood and agreed as follows: (a) Purchaser's obligations hereunder are subject to conditions precedent below which must have been met or expressly waived in writing by Purchaser on or before the Closing Date or such earlier date as may be indicated. (i) Purchaser obtaining zoning approval satisfactory to Purchaser, from all the appropriate zoning, planning, development and/or governmental bodies having jurisdiction over the zoning, planning, development and/or regulation of the Project and all necessary plat approvals, permits, and licenses necessary to develop the property as contemplated by Purchaser. (ii) Purchaser's ability to receive utility services, including but not limited to, water, sewer, electric, gas and telephone without extension or connection fees deemed by Purchaser to be excessive. (iii) Purchaser's obtaining engineering wetlands, environmental reports, soils tests and planning feasibility studies which, in Purchaser's sole discretion, are satisfactory to enable Purchaser to develop the Property for Purchaser's intended purpose in a manner Purchaser deems economically feasible. (iv) Purchaser's obtaining final site approval and an executed lease from Purchaser's lessee satisfactory to Purchaser after the execution of this Purchase Agreement by Seller. Seller agrees to fully cooperate with Purchaser in Purchaser's efforts to obtain the items set forth in paragraphs 8 (a) (i) through (iii) above. If the items listed in paragraphs 8 (a) (i) through (iv) above are pending, but have not been satisfied prior to the Closing, then the Purchase Agreement will be extended until the subject items have been obtained by Purchaser, with the Closing to occur not later than thirty (60) days after all items set forth in paragraphs 8 (a) (i) through (iv) above have been satisfied. (b) Seller represents that all city/county utilities are to the subject property (i.e., sewer, water, gas, electricity) and capacity is available for Purchaser's intended use. (c) Purchaser shall pay the cost of the premium of title insurance. Said Title insurance shall be obtained by Purchaser. (d) Seller represents and warrants, which representation and warranty shall survive the closing, that there are no hazardous materials or wastes, as those terms are now or 2 l hereafter defined under applicable federal, state and/or local laws, ordinances and regulations, stored or located in, on or under the Property, nor has the Property ever been used for manufacturing, storage or other purposes in which hazardous materials or wastes were involved. Anything in the Agreement to the contrary notwithstanding, it is agreed that Purchaser does not assume or agree to be responsible for, and Seller hereby agrees to indemnify and hold Purchaser harmless from and against any and all claims, obligations and liabilities and all costs, expenses and attorneys' fees incurred, based upon or arising out of any obligation, liability, loss, damage, or expense, of whatever kind of nature, contingent or otherwise, known or unknown, incurred under, or imposed by, any provision of federal, state or local law or regulation, or common law, pertaining to health , safety or environmental protection, including without limitation, such laws or regulations pertaining to the storage transportation, handling, disposal, discharge, presence or use of hazardous materials or wastes. The obligation of Seller to indemnify and hold Purchaser harmless set forth in this subsection shall survive the closing and shall be a continuing obligation. (e) Seller hereby represents and warrants that the Social Security Number or Federal Tax Identification Number of Seller set forth in Paragraph 12 of this Agreement is true and correct. Seller hereby agrees to indemnify, defend and hold Purchaser harmless from any loss, costs, expenses and damages, including reasonable attorneys' fees which it may incur if said numbers are inaccurate or are omitted. The obligation of Seller to indemnify and hold Purchaser harmless set forth in this subsection shall survive the expiration or termination of the Agreement or the closing hereunder, as the case may be. 9. Failure to Close or Observe Terms of Agreement. (a) In the event of Purchaser's default under the terms of this Agreement, Seller shall be entitled to retain all Earnest Moneys paid hereunder in full satisfaction of any and all claims which Seller might have arising in any manner whatsoever out of this transaction, it being understood that in no event shall Purchaser's liability for failure to close be in excess of the Earnest Moneys paid hereunder. (b) In the event Seller shall fail or refuse to close the purchase of the Property in accordance with the terms of this Agreement, or shall otherwise fail or refuse to observe and keep the terms of this Agreement, Purchaser shall have the right (i) to elect to declare this Agreement canceled, in which event all Earnest Money's paid hereunder shall be refunded by Seller to Purchaser forthwith, or (ii) to elect to affirm this Agreement and enforce its specific performance or recover for its breach. Seller shall be liable for and agrees to pay all damages, costs and expenses incurred by optionee arising out of or in connection with or resulting from the failure or refusal of Seller to close the purchase and observe and keep the terms of this Agreement as aforesaid, including without limitation reasonable attorneys' fees. 10. Use of Property During Purchase Agreement Period. During the terms of this Purchase Agreement, or any extension thereof and at all times after its exercise, Purchaser shall have the right to go upon the property for the purpose of making engineering studies, surveys, test borings, and sub-surface inspections, provided, however, in the exercise of the rights herein given, Purchaser shall not unreasonably interfere with the use by Seller of the property, if same is being used, and further provided that Purchaser will at its expense repair any damage caused by its activities on the property. 11. Parties Bound. This Purchase Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, successors and assigns. 12. Notices. Any notice by either party hereto shall be in writing and shall be sent by Federal Express or United States Certified Mail, postage prepaid, addressed to the party being notified at the address which a party may from time to time hereinafter designate to the other in writing and shall be deemed to be given as of the date postmarked on the letter or the date of deposit. Notice addresses are as follows: 3 w a SELLER Name: y, D a ri 1- Y`c- ' Address: D 'C3o co 000 Social Security No.: Federal Tax Payer No.: ZS - o4 .?,Z ct ct PURCHASER: GVH( Ca t-VkJr.- ), L.P. 577 Harpeth Trace Drive Nashville, TN 37221 Phone (615) 353-5088 Fax (615) 3535-5089 Mobile (615) 210-6237 Or 13. The effective date of this Purchase Agreement is S tP-"LK %14- ZZ- Zwc Z-' IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. , SELLER: Date: ?r !t G 2 E ?S "'?, c5 PURCHASER: GVH( ) L.P. a Tennessee Limited Partnership By: GVH, Inc. Its: General F By: :f Its: Date: Z LL-E4 A CrttJ7- Witness: Witness: COPY TO: Grissim & Hodges Sam D. Hodges, III 323 Union Street, 4th Floor Nashville, TN 37201 Phone (615) 345-7002 Fax (615) 726-3014 Witness: PRY wac.rf- I Nn 9 R'l SNj- G D ?r 'e P L (KGs kyli- © r rH c A ly ,? SNE,42L& ?L?iL?OX? rl?D D'I 4 : 717243047. Dec. 12 2002 04:35PM1 P1 -AX No. FROM WOLFS SHEARER 12- 2-20@2 2,SIP.M FRDM ira/FPT 205 981 163' AMNDUM To rJOK ASi AND SALE AMEN? betweai t n. i (??w,as,.?v ? as saw, and r v a e- c*c4,%la. ) L.,T _ - as Pun haw seam and PirChW henebY agm tD the fdiovmnq d mW. 1) the Own dads of go PWONw A9*wnmt N han*r cha119ea ?? •.w r AZT to ?w+ c caarl?31?. ?. ?»p• a Ta VMM Umbd pw"erm* DIM By. G", Inc. Gan --- Ib: Dabr 12- t2_0? 64- nlt7l /J47-t? Addendum to Purchase & Sale Agreement The purchase and sale agreement dated, September 25, 2002, by and between Dauphin Oil Company, Inc. Seller, and GVM (Carlisle) L.P. a Tennessee Limited Partnership, (Purchaser) is hereby amended as follows: Item #1. Consideration to purch consideration is changed to e 180cn contract agreement beyond)thFive Thousand Dollars. If purchaser extends day following the effective date of this agreement, then the $5,000 earnest money held in Escrow by S&T Bank of Indiana, PA will become non-refundable but will be credited toward the purchase price. It shall be paid to seller not later than 10 days after the 180`h day noted. Item #5 A renewal extension of an additional 180 days may be needed. The payment to extend for an additional 180 days will be ($5,000.00) Five Thousand Dollars. Such additional payment shall be held in escrow by S&T Bank of Indiana, and shall be paid to Seller after 180 days from the date that the extension was granted, unless terminated by purchaser prior to the end of the 180-day period. Such additional payment shall be applicable to the purchase price. Item #6 Upon notification to Seller by purchaser of its intent to complete the purchase and sale, Seller shall settle, give deed and title and possession within 180 days of notification. Seller shall shorten this 180 day period to closing to earliest date possible. Purchaser agrees to cooperate in the transaction in order to allow Seller to effect an IRS 1031 like kind property exchange. Purchaser shall not be liable for any costs associated with this exchange. Seller shall be responsible for removing all underground fueling tanks and piping. Under no circumstances will the sale of gasoline, fuel oil, or petroleum products other than motor oil be permitted for 15 years following the-d ate of settlement on the property. J C-1 Seller: Witness- . Seller- Witne Purchase Witness: *Adden signed this 12 `h day of December 2002. EXTENSION A GREENENT-L EXTENSION AGREEMENT is entered into effective as of June 9, 2003, by and between DAUPHIN OIL COMPANY, INC, hereinafter "Seller" and GVH (CARLISLE), L.P., a Tennessee limited partnership, hereinafter "Buyer." WHEREAS, Seller and Buyer entered into a Purchase and Sale Agreement dated September 25, 2002, for pronerty in Cumberland County, Pennsylvania; and WHEREAS, Buyer and Seller have agreed to extend the initial due diligence period for an additional forty-five (45) days from June 9, 2003 to July 23, 2003. NOW, THEREFORE, for and in consideration of the foregoing, is hereinafter set forth: Buyer and Seller agree that the end of the initial due diligence period shall be extended forty-five (45) days from June 9, 2003 to July 23, 2003. This Agreement may be signed in counterpart. In addition, the parties may rely on facsimile copies as if they were originals. IN WTTNESS WHEREOF, the parties have executed this Extension Agreement effective as of the date set forth above but actually executed by the parties on the date set forth opposite their respective signatures. SELLER: z iC /?6 Dated: DAUPHIN OIL COMPAN_ ZINC. By: /L C r G r` ,IT BUYER: GVH (CARLISE), L.P. Dated: 4I gI63 BY: ITS: BY: JG ?? b CAJ n r?f?f I( wry ??.. 6"?' L1 --C 0 C_. ?.r Co C.J tL7 --n rc 717 t C7 ? rrt -G DAUPHIN OIL COMPANY, INC. Plaintiff, V. GVH (CARLISLE), L.P. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-135 CIVIL ACTION ACCEPTANCE OF SERVICE Kenneth W. Lee, Esquire, hereby accepts service of the Complaint in this matter this /SOit, day of 2007. SAWIS, FLOWER & LINDSAY ?:uw 26 West High Street Carlisle, PA Kenneth W. Lee, Esquire Tucker Arensberg, PC Attorney ID # :Too/ (o 111 North Front Street Harrisburg, PA 17108 Phone: 717-234-4121 U -n rrl TT I f; m --n C i y { ?q iJ ._'? ?T ?r? 1 r ? rt ? S IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC., Plaintiff, V. GVH (CARLISLE), L.P., Defendants. CIVIL DIVISION No.: 07-135 ANSWER, NEW MATTER, AND COUNTERCLAIM Filed on Behalf of: Defendant, GVH (Carlisle), L.P. Counsel of Record for this Party: Kenneth W. Lee PA I.D. No. 50016 TUCKER ARENSBERG, P.C. 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: 717-234-4121 Facsimile: 717-232-6802 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC., Plaintiff, V. GVH (CARLISLE), L.P., Defendants. CIVIL DIVISION No.: 07-135 NOTICE TO PLEAD TO: Dauphine Oil Company, Inc., and its attorneys. YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE WITHIN NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. TUCKER ARENSBERG, P.C. f Kenneth W. Lee PA I.D. No. 50016 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: 717-234-4121 Facsimile: 717-232-6802 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC., : CIVIL DIVISION Plaintiff, V. GVH (CARLISLE), L.P., Defendants. No.: 07-135 ANSWER, NEW MATTER, AND COUNTERCLAIM AND NOW, comes defendant, GVH (Carlisle), L.P., by and through their attorneys, Tucker Arensberg, P.C., who files this Answer, New Matter and Counterclaim, and in support thereof states: I. ANSWER 1. Upon information and belief, the averments in paragraph 1 of the Complaint are admitted. 2. The averments in paragraph 2 of the Complaint are admitted. 3. Upon information and belief, the averments in paragraph 3 of the Complaint are admitted. 4. Upon information and belief, the averments in paragraph 4 of the Complaint are admitted. 5. Upon information and belief, the averments in paragraph 5 of the Complaint are admitted. -1- 0- 11 6. GVH (Carlisle), L.P. (hereinafter "GVH"), is advised that the averments in paragraph 6 of the Complaint constitute a conclusion of law to which no response is required. If a response is deemed to be required, GVH incorporates herein by reference the within New Matter and Counterclaim as though fully set forth at length. 7. GVH is advised that the averments in paragraph 7 of the Complaint constitute a conclusion of law to which no response is required. If a response is deemed to be required, GVH incorporates herein by reference the within New Matter and Counterclaim as though fully set forth at length. 8. As to the averments in paragraph 8 of the Complaint, paragraph 3 of the Escrow Agreement being a writing speaks for itself and all averments to the contrary are denied. By way of further response, GVH incorporates herein by reference the within New Matter and Counterclaim as though fully set forth at length. 9. The averments in paragraph 9 of the Complaint are denied as stated. It is admitted that GVH has not directed the Escrow Agent to disburse funds to plaintiff. However, as more fully set forth in the within New Matter and Counterclaim, no funds in the Escrow Account are owed to plaintiff, and all funds therein are rightfully owed to GVH. 10. GVH is advised that the averments in paragraph 10 of the Complaint constitute a conclusion of law to which no response is required. If a response is deemed to be required, GVH incorporates herein by reference the within New Matter and Counterclaim as though fully set forth at length. -2- 0 11. GVH is advised that the averments in paragraph 11 of the Complaint constitute a conclusion of law to which no response is required. If a response is deemed to be required, GVH incorporates herein by reference the within New Matter and Counterclaim as though fully set forth at length. 12. GVH is advised that the averments in paragraph 12 of the Complaint constitute a conclusion of law to which no response is required. If a response is deemed to be required, GVH incorporates herein by reference the within New Matter and Counterclaim as though fully set forth at length. WHEREFORE, defendant, GVH (Carlisle), L.P., demands judgment in its favor and that the Complaint be dismissed with prejudice. II. NEW MATTER 13. The Complaint fails to state a cause of action upon which relief can be granted. 14. GVH has paid in full all monies which are rightfully due and owing to plaintiff, and in fact has paid plaintiff in excess of what is rightfully due and owing to plaintiff. 15. Plaintiff has failed to fulfill its obligations under the Contract and the Escrow Agreement because: a. plaintiff has failed or refused to compensate GVH for environmental remediation which plaintiff failed or refused to complete or perform; b. plaintiff has failed or refused to compensate GVH for environmental remediation which was discovered during construction of the improvement; and -3- A C. plaintiff has failed or documentation set forth Escrow Agreement. refused to furnish the in Paragraph 3(c) of the 16. Plaintiff has been furnished notice of GVH's claims and notice of plaintiffs failure to perform plaintiffs obligations under the Contract, the Hazardous Waste Indemnity Agreement and the Escrow Agreement by: a. Submission of documentation to plaintiff during the course of construction of the improvement by GVH's contractor or subcontractor of GVH's contractor; b. Submission of documentation or written notice to plaintiffs engineer's by GVH's attorney, GVH's contractor or subcontractors of GVH's contractor; C. A letter dated December 8, 2006, from GVH's counsel, Kenneth W. Lee, to plaintiffs counsel, Robert C. Saidis; and d. A letter dated January 9, 2007, from GVH's counsel, Kenneth W. Lee, to plaintiffs counsel, Robert C. Saidis. 17. As more fully set forth in the within Counterclaim, GVH has incurred costs and expenses well in excess of the funds in the Escrow Account as a direct and proximate result of plaintiffs breach of the Contract and Escrow Agreement. 18. Though GVH has made demand upon plaintiff, plaintiff has failed or refused to (a) instruct the Escrow Agent to pay the funds in the Escrow Account to GVH or (b) failed to compensate GVH for the damages incurred as a direct and proximate result of plaintiffs breach of Contract and Escrow Agreement. WHEREFORE, defendant, GVH (Carlisle), L.P., demands judgment in its favor and that the Complaint be dismissed with prejudice. -4- III. COUNTERCLAIM A. Facts 19. GVH is a limited partnership organized and existing under the laws of the State of Tennessee with its principal place of business located in Nashville, Tennessee. 20. Dauphin Oil Company, Inc. (hereinafter "DOC"), is, upon information and belief, a corporation existing under the laws of the Commonwealth of Pennsylvania with its principal place of business located in Cumberland County, Pennsylvania. 21. By a deed dated July 6, 1966, and recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, a Deed Book Volume A22, page 403, W. Raymond Black and Katherine B. Black, husband and wife, conveyed to DOC the property described therein and generally referred to 431 South Hanover Street, Borough of Carlisle, Cumberland County, Pennsylvania, Parcel No. 03-22-0485-004 (hereinafter "Premises"). 22. Upon information and belief, from 1966 up to 2002, DOC carried on upon the Premises operations in which petroleum and petroleum by-products were sold and distributed, from numerous and voluminous underground storage tanks. 23. As of 2002, the real property adjacent to or in proximity of the Premises had been developed into retail or residential uses, and was quickly being modernized and improved. 24. As of 2002, the real property adjacent to or in proximity of the Premises had become a showcase of economic development and investment within the Borough of Carlisle. -5- 10 25. As of 2002, the Premises had become environmentally contaminated with numerous and substantial quantities of pollutants and toxins. 26. On or about September 25, 2002, DOC and GVH entered into a Purchase & Sale Agreement (hereinafter "Contract") whereby DOC agreed to convey the Premises to GVH in consideration of the payment by GVH of $1,000,000.00. A true and correct copy of the Contract is attached hereto as Exhibit "1". 27. GVH's desire to purchase the Premises was to develop an Eckerd Drug Store thereon pursuant to an agreement between Eckerd Drug an GVH. 28. Pursuant to the Contract, GVH was furnished an opportunity to perform due diligence in regard to, among other things, the environmental conditions of the Premises. 29. The original closing date under the Contract was extended several times until December 15, 2004. 30. Between September 25, 2002, and December 15, 2004, numerous and substantial types of hazardous or toxic environmental pollutants, toxins, wastes, materials, substances and contaminates (hereinafter collectively referred to as "Pollutants") were discovered to be present upon the Premises. 31. As of December 15, 2004, DOC had failed or refused to complete the remediation so as to remove the Pollutants from the Premises. 32. Further, as of December 15, 2004, additional Pollutants had been identified as being present upon the site which DOC or DOC's engineers had not previously discovered or identified. -6- 33. On December 15, 2004, DOC and GVH closed upon the sale to and conveyance of the Premises to GVH, but, because of the uncertainty as to whether all Pollutants upon the Premises had been properly remediated by DOC or whether all Pollutants upon the Premises had been discovered or identified, DOC and GVH entered into the following: a. a Hazardous Waste Indemnity Agreement dated December 15, 2004, (hereinafter "Indemnity"), a true and correct copy of which is attached hereto as Exhibit "2"; and b. an Escrow Agreement dated December 15, 2004, (hereinafter "Escrow Agreement"), a true and correct copy of which is attached to as Exhibit "3". 34. At the closing of December 15, 2004, GVH paid to DOC $900,000.00 of the total purchase price of $1,000,000.00 for the Premises. 35. The remaining $100,000.00 of the purchase price was placed into an Escrow Account and subject to the terms of the Contract, the Indemnity and the Escrow Agreement. 36. The $100,000.00 was to, among other things, secure the performance of DOC to complete all remediation of the Pollutants upon the Premises or to reimburse GVH for any remediation of Pollutants which GVH or its contractor had to perform during construction of the improvements upon the Premises. 37. Upon taking possession of the Premises, GVH discovered that DOC had failed to complete certain remediation of the Pollutants and thereafter, GVH incurred certain costs to complete this work which DOC had failed or refused to perform. -7- J. 38. During the course of constructing the improvement in 2005, GVH's contractor or the subcontractors of GVH's contractor discovered other Pollutants upon the Premises which were required to be remediated so as to comply with applicable environmental statutes, regulations or laws. 39. Upon information and belief, either GVH's contractor or the subcontractors of GVH's contractor furnished DOC with the costs incurred to remediate the Pollutants which costs DOC failed or refused to pay. 40. To date, GVH has incurred approximately $262,000.00 to either complete DOC's remedial obligations or to remediate Pollutants discovered during the construction of the improvement upon the Premises. 41. The $262,000.00 in costs incurred to date by GVH were the direct and proximate result of DOC's failure or refusal to complete the remediation of the Pollutants upon the Premises or to indemnify GVH for the costs incurred by GVH to remediate the Pollutants discovered during construction of the improvement upon the Premises so as to comply with applicable environmental statutes, regulations or laws. 42. Though repeated demands have been made, DOC has failed or refused to pay to GVH the $262,000.00 due and owing to GVH. B. Count I - Breach of Contract 43. GVH incorporates herein by reference paragraphs 19 through 42 of this Counterclaim as though fully set forth at length. -8- 1 44. The failure or refusal of DOC to reimburse, pay or otherwise indemnify GVH for the costs incurred to remediate the Pollutants upon the Premises constitutes a breach of the Contract, the Indemnity and/or the Escrow Agreement. 45. Because of DOC's breach of the Contract, the Indemnity and/or the Escrow Agreement, GVH is entitled to the entire balance of the Escrow Account. 46. Because of DOC's breach of the Contract, the Indemnity and/or the Escrow Agreement, GVH is entitled to judgment against DOC for any and all damages exceeding the balance of the Escrow Account. 47. Because of DOC's breach of the Contract, the Indemnity and/or the Escrow Agreement, GVH is entitled to its attorneys' fees and costs. 48. All conditions have occurred or been performed. WHEREFORE, GVH (Carlisle), L.P., demands judgment under Count I of this Counterclaim against Dauphin Oil Company, Inc., and requests this Court to enter an Order: a. directing that the monies in the Escrow Account together with all interest be paid to GVH (Carlisle), L. P.; b. directing Dauphin Oil Company, Inc., to reimburse and/or indemnify GVH (Carlisle), L.P., for all amounts incurred by GVH (Carlisle), L.P., to remediate the Pollutants; and c. directing Dauphin Oil Company, Inc., to pay the attorneys' fees and costs incurred by GVH (Carlisle), L. P. -9- C. Count II - Abuse of Process 49. GVH incorporates herein by reference paragraphs 19 through 48 of this Counterclaim as though fully set forth at length. 50. On or about August 17, 2006, DOC, by and through its President, James Rutledge, instituted an action in Magistrate District 09-2-01 upon the Escrow Agreement (hereinafter "Magistrate Action"). A true and correct copy of the Complaint is attached hereto as Exhibit "4"). 51. By letter dated September 15, 2006, to the District Magistrate with a copy thereof served upon DOC, counsel for GVH served notice upon DOC of the inappropriateness of the Magistrate Action because the Magistrate Action had no basis in law or fact. A true and correct copy of this letter is attached hereto as Exhibit "5". 52. Notwithstanding the September 15, 2006, notice to DOC that the Magistrate Action had no merit in law or fact, DOC took no action to cause the Magistrate Action to be dismissed. 53. At the hearing of the Magistrate Action of November 6, 2006, neither DOC nor any person representing DOC appeared to either prosecute the Magistrate Action or defend the defenses set forth in the notice dated September 15, 2006. 54. The Magistrate Action was dismissed and judgment entered in favor of GVH and the other defendants named therein, and DOC has not taken any appeal in regard thereto. 55. DOC's conduct in instituting the Magistrate Action, failing to dismiss the Magistrate Action after receipt of the September 15, 2006, notice and DOC's failure to -10- appear at the hearing of November 6, 2006, constitute an abuse of process of judicial proceedings. 56. DOC's abuse of judicial proceedings through the Magistrate Action caused GVH to incur approximately $1,000.00 in legal fees and costs to investigate and defend the Magistrate Action and to appear at the hearing of November 6, 2006. 57. Though repeated demands have been made, DOC has failed or refused of pay GVH the damages incurred by GVH arising out of DOC's abuse of process. WHEREFORE, GVH (Carlisle), L.P., demands judgment under Count II of this Counterclaim against Dauphin Oil Company, Inc., in the amount of $1,000.00 together with interest, attorneys' fees and costs. Respectfully submitted, TUCKER ARENSBERG, P.C. Kenneth W. Lee PA I.D. No. 50016 Christopher E. Fisher PA I.D. No. 201395 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: 717-234-4121 Facsimile: 717-232-6802 Counsel for Defendant, GVH (Carlisle), L.P. 92707.1 (019264 - 123964) - 11 - VERIFICATION AND NOW, comes Gregory V. Hurley, as President of GVH, Inc., General partner of GVH (Carlisle), L.P., and verifies that the facts contained in the foregoing Answer, New Matter and Counterclaim are true and correct to the best of his knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities, which provides criminal penalties if a person with intent to mislead makes a written false statement which he does not believe to be true. Date: 31 G 101 92707.1 (019264-123964) CERTIFICATE OF SERVICE AND NOW, this;`- day of March, 2007, I, Kenneth W. Lee, Esquire, for the law firm of Tucker Arensberg, P.C., attorneys for Defendant, hereby certify that I have this day served the foregoing Answer, New Matter and Counterclaim, by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Robert C. Saidis, Esquire Dean E. Reynosa, Esquire Saidis, Flower & Lindsay, P.C. 26 West High Street Carlisle, PA 17013 Robert C. Saidis, Esquire Dean E. Reynosa, Esquire Saidis, Flower & Lindsay, P.C. 2109 Market Street Camp Hill, PA 17011 Kenneth W. Lee 92707.1 (019264 - 123964) -13- /? PURCHASE & SALE AGREEMENT Apo AID11t4 0A THIS AGREEMENT A made and entered into this day SE PTtK tbE a_ 2+r z o-z__, by and between "Dau -t O,1 C r Nc- . , hereinafter called "Seller"and GVH r Cs e- L.P. a Tennessee Limited Partnership whose principle address is 577 Harpeth Trace Drive, Nashville, Tennessee 37221 hereinafter called "Purchaser". WITNESSETH: WHEREAS, Seller is the owner inf_e.e simple of a certain parcel or tract of land, being X31 S. F}ay?oJ ey, s-1 -r ae,,( l , more specifically known as '?ar a e1 -* o 3 - 2 z - o VSS- oo J containing an area of t - 08 acres of land, more or less; as recorded in Deed Book/Volume 22 Page o 3 , in &x-16er?a--^A County, domiaL, ; and outlined in Exhibit "A" and annexed hereto and made a part hereof; and ' NOW THEREFORE, in consideration of the premises, the promises and covenants hereinafter set forth, and the mutual advantages and benefits accruing hereunder, Seller hereby grants, bargains, and extends unto Purchaser, its successors and assigns, the right privilege and option to purchase the property for the consideration and subject to the terms and conditions hereinafter set forth: 1. Consideration for Purchase. The aforesaid agreement to purchase the property is granted in consideration of thpayment herewith of the sum of US ($ 1, o00 , 07C1 ) O'K e_ 1- .so-rJ Dollars Cash, which sum, together with any additional sums paid for extensions of the purchase agreement is hereinafter called "Earnest Money", by Purchasers check payable to the order of Seller, the receipt of which, subject to collection, is hereby acknowledged and held by S and T Bank of Indiana, Pennsylvania as escrow agent. 2. Term of Agreement. This Agreement shall begin on the date this Purchase Agreement is executed by both Seller and Purchaser ("the Effective Date of Agreement') and shall extend for a period ending at midnight on the 180th day following the Effective Date of Agreement unless sooner exercised. 3. Price and Terms of Payment. If the Purchase Agreement herein granted is ) exercised, the price to be paid and-accepted for the property is US ($ 11 ooo,CCO .0z on e.- y y\-%-6k e n I'- l : tI dollars cash. The price to be paid and accepted shall be paid by cashiers or certified check or wire transfer at the closing. All Earnest Money theretofore paid shall be credited toward the price. 4. Exercise of Purchase Agreement to close. Exercise of the Purchase Agreement herein granted shall be by written notice thereof given by Purchaser to Seller in the manner hereinafter provided during the term of this Purchase Agreement or any extension thereof. 5. Renewals and Extensions. The Purchaser may extend this Purchase Agreement for a period of one hundred eighty (180) days by the payment of US ($ 1, oao . OD Or e_ Thousand Dollars cash. Such payment shall be applicable to the purchase price. 6. Time and Place of Closing. Upon timely and proper exercise of the Purchase Agreement as herein provided, the purchase and sale of the property shall be consummated not less than ten (10) days or more than sixty (60) days next following the date of the notice of exercise to close on such date and time as Purchaser may designate in written notice to Seller. 7. Closing. At the closing. (a) Seller shall execute and deliver to Purchaser a General Warranty Deed in the form generally in use in the County or Township where subject property is located, conveying fee simple, merchantable title to the property, free and clear of all liens and encumbrances. All revenue, documentary, and/or transfer stamps or taxes, if any incident to said deed of conveyance be equally paid by Seller and Purchaser. (b) Purchaser shall deliver to Seller a check for the amount of the purchase price less all Earnest Money paid and subject to the adjustments specified in this Agreement. (c) Real estate taxes,utilities(if any),rents(if any),shall be prorated between Seller and Purchaser to the date of closing. 8. Other Covenants and Conditions. It is further understood and agreed as follows: (a) Purchaser's obligations hereunder are subject to conditions precedent below which must have been met or expressly waived in writing by Purchaser on or before the Closing Date or such earlier date as may be indicated. (i) Purchaser obtaining zoning approval satisfactory to Purchaser, from all the appropriate zoning, planning, development and/or governmental bodies having jurisdiction over the zoning, planning, development and/or regulation of the Project and all necessary plat approvals, permits, and licenses necessary to develop the property as contemplated by Purchaser. (ii) Purchasers ability to receive utility services, including but not limited to, water, sewer, electric, gas and telephone without extension or connection fees deemed by Purchaser to be excessive. (iii) Purchaser's obtaining engineering wetlands, environmental reports, soils tests and planning feasibility studies which, in Purchaser's sole discretion, are satisfactory to enable Purchaser to develop the Property for Purchaser's intended purpose in a manner Purchaser deems economically feasible. (iv) Purchaser's obtaining final site approval and an executed lease from Purchaser's lessee satisfactory to Purchaser after the execution of this Purchase Agreement by Seller. Seller agrees to fully cooperate with Purchaser in Purchaser's efforts to obtain the items set forth in paragraphs 6 (a) (i) through (iii) above. If the items listed in paragraphs 8 (a) (i) through (iv) above are pending, but have not been satisfied prior to the Closing, then the Purchase Agreement will be extended until the subject items have been obtained by Purchaser, with the Closing to occur not later than thirty (60) days after all items set forth in paragraphs 8 (a) (i) through (iv) above have been satisfied. (b) Seller represents that all city/county utilities are to the subject property (i.e., sewer, water, gas, electricity) and capacity is available for Purchaser's intended use. (c) Purchaser shall pay the cost of the premium of title insurance. Said Title insurance shall be obtained by Purchaser. (d) Seller represents and warrants, which representation and warranty shall survive the closing, that there are no hazardous materials or wastes, as those terms are now or hereafter defined under applicable federal, state and/or local laws, ordinances and regulations, stored or located in, on or under the Property, nor has the Property ever been used for manufacturing, storage or other purposes in which hazardous materials or wastes were involved. Anything in the Agreement to the contrary notwithstanding, it is agreed that Purchaser does not assume or agree to be responsible for, and Seller hereby agrees to indemnify and hold Purchaser harmless from and against any and all claims, obligations and liabilities and all costs, expenses and attomeys' fees incurred, based upon or arising out of any obligation, liability, loss, damage, or expense, of whatever kind of nature, contingent or otherwise, known or unknown, incurred under, or imposed by, any provision of federal, state or local law or regulation, or common law, pertaining to health , safety or environmental protection, including without limitation, such laws or regulations pertaining to the storage transportation, handling, disposal, discharge, presence or use of hazardous materials or wastes. The obligation of Seller to indemnify and hold Purchaser harmless set forth in this subsection shall survive the closing and shall be a continuing obligation. (e) Seller hereby represents and warrants that the Social Security Number or . Federal Tax Identification Number of Seller set forth in Paragraph 12 of this Agreement is true and correct. Seller hereby agrees to indemnify, defend and hold Purchaser harmless from any loss, costs, expenses and damages, including reasonable attomeys' fees which it may incur if said numbers are inaccurate or are omitted. The obligation of Seller to indemnify and hold Purchaser harmless set forth in this subsection shall survive the expiration or termination of the Agreement or the closing hereunder, as the case may be. 9. Failure to Close or Observe Terms of Agreement. (a) In the event of Purchaser's default under the terms of this Agreement, Seller shall be entitled to retain all Earnest Moneys paid hereunder in full satisfaction of any and all claims which Seller might have arising in any manner whatsoever out of this transaction, it being understood that in no event shalt Purchaser's liability for failure to close be in excess of the Earnest Moneys paid hereunder. (b) In the event Seller shall fail or refuse to close the purchase of the Property in accordance with the terms of this Agreement, or shall otherwise fail or refuse to observe and keep the terms of this Agreement, Purchaser shall have the right (i) to elect to declare this Agreement canceled, in which event all Earnest Money's paid hereunder shall be refunded by Seller to Purchaser forthwith, or (ii) to elect to affirm this Agreement and enforce its specific performance or recover for its breach. Seller shall be liable for and agrees to pay all damages, costs and expenses incurred by optionee arising out of or in connection with or resulting from the failure or refusal of Seller to close the purchase and observe and keep the terms of this Agreement as aforesaid, including without limitation reasonable attorneys' fees. 10. Use of Property During Purchase Agreement Period. During the terms of this Purchase Agreement, or any extension thereof and at all times after its exercise, Purchaser shall have the right to go upon the property for the purpose of making engineering studies, surveys, test borings, and sub-surface inspections, provided, however, in the exercise of the rights herein given, Purchaser shall not unreasonably interfere with the use by Seller of the property, if same is being used, and further provided that Purchaser will at its expense repair any damage caused by its activities on the property. 11. Parties Bound. This Purchase Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, successors and assigns. 12. Notices. Any notice by either party hereto shall be in writing and shall be sent by Federal Express or United States Certified Mail, postage prepaid, addressed to the party being notified at the address which a party may from time to time hereinafter designate to the other in writing and shall be deemed to be given as of the date postmarked on the letter or the date of deposit. Notice addresses are as follows: SELLER: Name: --S>"%r) Ott CewagM4 s:?1c-- Address: --VeD' 'Bo (Voo 'T- C e.-r .s e_ ?aL • 1-1013 _ Social Security No.: Federal Tax Payer No.: 2S'-0q-&Z995- PURCHASER: GVH( Car?is'? L.P. 577 Harpeth Trace Drive Nashville, TN 37221 Phone (615) 353-5088 Fax (615) 3535-5089 Mobile (615) 210-6237 COPY TO: Grissim & Hodges Sam D. Hodges, III 323 Union Street, 4th Floor Nashville, TN 37201 Phone (615) 345-7002 Fax (615) 726-3014 13. The effective date of this Purchase Agreement is SlEP-mK&tL? IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above w?ntten. 1. LLER.- Date: Witness. Witness: PURCHASER: GVH( i34•r4ts[e_ ) L.P. a Tennessee Limited Partnership By: GVH, Inc. Its: General F By: Its: D, .Z Witness: s VLLZ4 A G 2sr?s -r o pA V A cjE--M-- ti n R R y s?r1c D ??e oZ IZ 12 c,,roc.FL f SN>r,442.o 9ZA 14 e.o ?? r-+. ? s a e oav S.4 cF S PAIGE, i PtzCgkjV- or "C F1krfc_ AG luf'o ?P ??. C.. 12-t 2-2002 ' 2: SSMI FR0l1 aM'H%_ 205 ioSl 1635 Addendum to Purchase & Sale .Agreement The purchase and we agreement dated, September 25, 2002, by and between Dauphin Oil Company, Inc. Seller, and GVW (Carlisle) L.P. a Tennessee Limited Partnership, (Purchaser) is hereby amended as follows; Item * 1. - The consideration is changed to (55,000.00) Five Thousand Dollars. If purchaser extends this contract agreement beyond the 180i' day following the effective date of this agreement, then the $5.000 eamest money held in Escrow by S&I' Bank of Indiana, PA will become non-roll mlable but will he credited toward the purchase price. It shell be paid to seller not later than 10 days afm the I80'e day noted. Item 05 A renewal extension of an additional 180 days may be needed. The payment to extend for an additional 180 days will be ($5,000.00) Five Thousand Dollars. Such additional payment shall bo held in escrow by S&T Bank of Indiana, and shall be paid to Seller after 180 days fiom the data that the extension was granted, unless terminated by purchaser prior to the card of the I &May period. Such additional payment shall be applicable to the purchase price. Item #6 Upon notification to Seller by purchaser of its intent to complete the purchase and sale, Seller shill seals, give deed and title and possession within 180 days of notification. Seller shall shorten this 180 day period to closing to earliest date possible. Purchaser agrees to cooperate in the transaction in order to allow Seller to effect an IRS 1031 like kind property exchange. Purchaser shall not be liable for any costs associated with this exchange. Seller shall be responsible for removing all underground fueling tanks and piping. Under no cit+cuma xaces will the sale of gasoline, fuel oil, or petroleum products other than motor oil be permitted 13 years f ow a reof ctd=cnt on the property. S 6r' - Witness: _ witness• 4v witness: P. 2 signed this 12°' day of Drcembcr 2002. 12-12-2002 2,61PM FROM JM/HPT 205 981 163: P.2 ADDENDUM TO PURCHASE AND SALE AGREEMENT Dated 4i=L-1- 2-ee . 2.00 L between -DOAI b n 011 ('AW-S ny re-AC.. as Seller, and Addendum to Purchase & Sale Agreement The purchase and sale agreement dated, September 25, 2002, by and between Dauphin Oil Company, Inc. Seller, and GVM (Carlisle) L.P. a Tennessee Limited Partnership, (Purchaser) is hereby amended as follows: Item # 1. Consideration to purchase - The consideration is changed to ($5,000.00) Five Thousand Dollars. If purchaser extends this contract agreement beyond the 180th day following the effective date of this agreement, then the $5,000 earnest money held in Escrow by S&T Bank of Indiana, PA will become non-refundable but will be credited toward the purchase price. It shall be paid to seller not later than 10 days after the 180th day noted. Item #5 A renewal extension of an additional 180 days may be needed. The payment to extend for an additional 180 days will be ($5,000.00) Five Thousand Dollars. Such additional payment shall be held in escrow by S&T Bank of Indiana, and shall be paid to Seller after 180 days from the date that the extension was granted, unless terminated by purchaser prior to the end of the 180-day period. Such additional payment shall be applicable to the purchase price. Item #6 Upon notification to Seller by purchaser of its intent to complete the purchase and sale, Seller shall settle, give deed and title and possession within 180 days of notification. Seller shall shorten this 180 day period to closing to earliest date possible. Purchaser agrees to cooperate in the transaction in order to allow Seller to effect an IRS 1031 like kind property exchange. Purchaser shall not be liable for any costs associated with this exchange. Seller shall be responsible for removing all underground fueling tanks and piping. Under no circumstances will the sale of gasoline, fuel oil, or petroleum products other than motor oil be permitted for 15 years followin date of settlement on the property. Se'-- Witness: er: Witness: Purchaser: Witness: *Addendum signed this 12'h day of December 2002. ;? f%4 Yrj6?'w • ?? f S '? • Y 41 'S.^Y i now ±y ? _ ? r L r t c F 5 - s r Y ?r FROM : WOLFE SFEMER FAX N0. : 7172430472 Sep, 09 2082 11:35AM P2 •.?I.ri eJ. ?..1 Ib? ?w M .w,-M.,.we M ?VS\+.?M l? D87Ng 6th dorof July ..?:'Mwa1•?M? rlwAesetaoswa[siaeArMrd sixty-six (1966). !?rrpgry;;. RrAi W. RAYMOND SLACK and KATHERINE G. BLACK, his wife, of y 1 r1llla, Cumberland County, Pennsylvania, hereinafter called e i ' j C+es4r s, _. J:. DAUPHIN OIL COMPANYAna corporation duly incorporated under the w or the Cammonweelth of Pennsylvania, with Its principal office -tattsburgh, Pennsylvania, hereinafter called 1 Gntsleo p16 STAF, Wet Ja eraarlAnvibga ofp , i1 tXi ?av?1aivM 6=.fe5.?6yr00 o IK• I _ .a_ _ _ 6-" nt !Ae esi/ nester 1? % ! IeewrbNrsaiisrestnr its successors and &salons, •3 ALL that certain tract or land situate in the Goroug€i of Carlisle, ?I Morland County, Pennsylvania, pounded and described as rollows: i ?h WINNING at a stake at the Norbheastern corner of East Willow mot and South Hanover Street; thence along the Eastern side or , Ah Hanover Street, North 6 degrees 08 minutes 40 seconds teat, 195 to a stake at line of land of A. C. Leoelg and in the so-called 01 Grab Run; thence along said land and through said Run, North 83 pas 21 minutes 30 seconds East, 225.58 feet to a stake; thence by i yessd Cemetery Avenue (20 feet wide), Soutls 6 degrees 08 minutes 40 maids Weat, 245 feet to a spike on the NM-thorn side of fast Willow y Rat; thence by said East Willow Street, North 83 degrees 50 minutes .? it, 220 feet to the Place or aCGINNING; together with all the rights emorship, etc., of the grantors in and to the said Cemetery Avenue Blmled above; being improved with a brick and conereta block garage, ' I., euliding; meld description being accovdIng to a survey thereof i? iLeaat A. Herr, B.S., datea June 27, 1966, a copy or which is at- ad hereto and made a part hereof. 1 MXC a combined description or two (2) tracts or land which were aged to the within. grantors as follows: t. beed er J- r. une.^il nd wtf.. dated October 31. 1927 and 1:09A 22raw 403 FROM : WayE cp.EMER FAX NO. : 7172430472 Sep. 09 2002 11:36AM F3 recoded In the office of the Recorder of Deeds for Cumberl" I In Deed Book "Q", Vol, 10, page 410- . 2. Deed of George Bushman, dated September 30, 1929 andl In the office aforesaid In Deed Book "A", Vol. 11, page 490. C G F?+lTaa.Y AJe.MYa Ld ! Ha. CM?T et?..?i? Mi •y L-sO-O?'J ?-24i.oa ?,\1\ Ia,Gacs 1 8 Y . y\ i J y 1 Seur.+ \\e.??oyCOa sr¢aa-y^ el-C; NQ ?o fA,y y\y SuRVe.'i oa: oaooae7'Y S.W. 10 W4443 J??, ?AU P41\M lJl COM V.,1 la UAS&.v,Y•.L•I- Pa..ww, • ?AM1 Nl,I:.I r? .. 'P{aaawT aY Vi s.?ry. {C hl ww v.Mi ? -.1??nw? w. Mari e.ti. 7-7 amt,' 22?Ia 404 FROM : WOLFS SFERRE'R .nd C nd, >, rS i , r.fl r0. F$4X r4• : 7172430472 SeP. 09 2002 11:37Rpr P4 MB the "id yraaton Araby oMhaat and yna Ma("aid wok of Ckm wW ananG Rrally IAPw+a- whavivomONd Nml?or yJ'; 4 (? it r',. 111 Itt. .p.??. Cw ?.J w,rw r,r NNtlNN t,xrNr to rr/'!r < 1 l; 1 ?{ r' . vas?x ? 174: ka,. .rCL ?.? + ++La? ? yi I 14 ?l R 1,? r, ' pIrt'sw wN6amr. aa(d yrawr? have Ae em ad t;hei r Am* aad ??a) a iwd ywr)int abaM Mrif4a MLrb awi BelMnri)»'07 (war ?1C(ymond dl?su °s°' _""' saa TKo urine E. bloc Pepnoylvania o. qi usperland 6th dad July .066 Mien au, y Public, qaW oOt?or, Dr,woaapy aP/easd W, Raymond Black and Rathorine E. h1a wife, wo (w roWedw Ry prom) to A lA yr,wa a wkwro mw a are abwc w to Ch. Irmaosl, aad atkhawlsdaod tAal ?,ay oawwdld rawro for Ike )+w pow themin NSM )PNE"or, I AroaoM ?d wry Atwd awd w/Idal not tu:rcr •-: ;^r ?.In tvaar THIS H oolow, . 6 . i wr rtwwtyN wait nit+u t. uN . IwteAne 4arfiry )Aa) f,Ay pretilo n?Idww qyd eow?yietr ssd yla ddnw ?'i?'T,? `IA?fC(c/L1S3z:3 6 +K,6 v ?? p G.Gba? 2?rNCi ??S I i• FROM : WOLFE SHEARER FAX NO . . 7172436472 SEP. 09 2002 11:49AM P1 Facetwin Screen Print for public, from "LAMA-Login" 9/9/02 10:38:46 AM CUMBERLAND COUNTY ASSESSMENT OFFICE IDISTRICT; 03 - CARLISLE $ORO 2ND WRD 50: CONTROL 4 03000376 3 PARCEL: 03-22-0485-004. SPEC ID: LOT: ----I Tback: Short Name DAUPHIN OIL COMPANY LAST NAME DAUPHIN OIL COMPANY PROPERTY TYPE: CG FIRST NAME C/O NAME INCORPORATED LE ADDRESSI DEED BK/PG..... ADDRESS2 PO BOX 600 DATE OF SALE... POST OFFICE: CARLISLE SELLING PRICE: STATE & ZIP: PA 17013 SituS: 431 S HANOVER STREET r-----CURRENT VALUE Prop Descrip.: A5SeSSed Fair Market LAND USE TYPE: 333 I FMV - 503250 L - 23420 NEIGHBORHOOD: 3 C&G - B - 479830 DEEDED ACRES: 1.08 approved? -> T - 503250 Screen i Enter Selection > Record: 5129 Number -Switch screens, x -Exit, I -lump mode, F -Forms, I -image Down Arrow -Next Entry, Up Arrow -Previous Entry, 7 -Screens, 8 -Browse Z Z A L103 ;L 12/15/2004 15:08 7172431850 MDWO HAZARDOUS WASTE INDEMNITY AGREEMENT THIS AGREEMENT is made and entered into on this the day of December, 2004, by and between DAUPHIN OIL COMPANY, INC., a Pennsylvania Corporation ("Seller") and GVH (CARLISLE), L.P., a Tennessee Limited Partnership ("Buyer"); WITNESSETH: PAGE 17/22 WHEREAS, by Purchase & Sale Agreement dated September 25, 2002, as subsequently amended (the "Contract"), Seller agreed to sell to Buyer, and Buyer agreed to purchase from Seller, certain property located in Cumberland County, Pennsylvania, as more particularly described in Exhibit "A" attached hereto and incorporated herein by reference (the "Property") according to the terms and conditions contained therein; and WHEREAS, in connection with Buyer's anticipated purchase of the Property, Buyer has obtained from Wlnitestone Associates, Inc. ("Buyer's Engineer") a Phase I Environmental Site Assessment (the "Phase I") dated April 2, 2004, Project No. WP03-5885 (the "Phase I") and a Limited Phase 11 Site Investigation dated May 5, 2003, Project No. WP03-5993 (the "Phase 11") on the Property (the Phase I and the Phase II being hereinafter referred to as "Buyer's Environmental ;Reports"); and WHEREAS, Buyer's Environmental Reports revealed evidence of recognized environmental conditions with regard to the Property's previous use as automobile repair facility and gasoline station; and WHEREAS, Section 8(d) of the Contract provides that Seller shall indemnify Buyer and hold Buyer harmless from and against any and all "claims, obligations and liabilities and all costs, expenses and attorneys' fees incurred, based upon. or arising out of any obligation, liability, loss, damage or expense, of whatever kind of nature, contingent or otherwise, known or unknown, incurred under, or imposed by any provision of federal, state or local law or regulation, or common law, pertaining to health, safety or environmental protection, including without limitation, such laws or regulations pertaining to the storage, transportation, handling, disposal, discharge, presence or use of hazardous materials or wastes," which indemnification shall survive the closing of the sale of the Property to Buyer; and WHEREAS, in connection with the sale of the Property to Buyer, Seller has undertaken to remediate the environmental contamination evidenced by Buyer's Environmental Reports; and WHEREAS, Seller has contracted with Environmental Remediation & Recovery, Inc. ("Seller's Engineers"), under their Project No. 2004.14, to supervise the remediation of the contamination of the Property; and 12/15/2004 15:08 7172431850 MDWO PAGE 18/22 WHEREAS, during the process of rernediation, Seller's Engineers have identified evidence of additional contamination of the Property (the Buyer's Environmental Reports and the additional reports of Seller's Engineers are hereinafter collectively referred to as the "Environmental Reports," and the contamination of the Property reflected by the Environmental Reports is hereinafter collectively referred to as the "Gas and Automotive Contamination"); and WHEREAS, based on the Environmental .Reports, and in accordance with the terms of the Contract, Buyer has requested that Seller enter into this Hazardous Waste Indemnification Agreement; NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10-00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, including the mutual benefits to be derived therefrom, Buyer and Seller hereby agree as follows: 1. As used below, and in any of the other documents executed in connection with the purchase of the Property by the Buyer (the "Documents'), "Hazardous Substances" shall mean and include all hazardous and toxic substances, wastes or materials, any pollutants or contaminates (including, without limitation, asbestos and raw materials which include hazardous constituents), or other similar substances, or materials which are included under or regulated by any local, state or federal law, rule or regulation pertaining to environmental regulation., contamination or clean-up, including, without limitation, "CERCLA," "RCRA," or state superlien or envirorunental clean-up statutes (all such laws, rules, and regulations being referred to collectively as "Environmental Laws"). Any terms mentioned in the following subsections which are defined in Pennsylvania statute and/or regulations promulgated in relation thereto by the Pennsylvania Department of Environmental Protection ("PADEP") shall have the meaning subscribed to such terms in the statutes and regulations. 2. Seller shall indemnify Buyer and shall hold Buyer harmless from and against any and all claims, obligations and liabilities and all costs, expenses and attorneys' fees incurred, based upon or arising out of any obligation, liability, loss, damage or expense, of whatever kind of nature, contingent or otherwise, known or unknown, incurred under, or imposed by any provision of federal, state or local law or regulation, or common law, pertaining to health, safety or environmental protection, including without limitation, such laws or regulations pertaining to the storage, transportation, handling, disposal, discharge, presence or use of hazardous materials or wastes including all removal, containment and remedial actions in accordance with all applicable Environmental Laws, specifically including but not limited to the removal of any additional underground tanks, piping or related materials and contaminated soils determined to be presently located on the Property (and in all events in a manner satisfactory to Buyer), and shall further pay or cause to be paid at no expense to Buyer all clean-up, administrative, and enforcement costs of applicable governmental agencies which may be asserted against the Property or the owner thereof in connection with any hazardous substances, including but not limited to the Gas and Automotive Contamination. MDtJO PAGE 19/22 12/15/2004 15:08 7172431850 3. Seller is fully aware that Buyer is relying on this certification in Buyer's willingness to purchase the Property, and Seller hereby agrees to indemnify, defend, and hold harmless Buyer, and its officers, directors, partners, employees and agents, against any liability, loss, claim, cost, damage or expense (including without limitation attorneys' fees, disbursements and court costs) to which any of the foregoing parties may become subject insofar as they may arise out of or are based upon any of the following: (a) any continued violation of Environmental Laws with respect to the Gas and Automotive Contamination on the Property, or any governmental or judicial claim, order, or judgment with respect to the clean-up of the Gas and Automotive Contamination on the property; (b) the removal of any additional tanks, piping, or related materials and soils contamination determined to be currently located on the Property; (c) any breach of, any of the warranties, representations, and covenants contained in this Agreement. 4. Seller agrees to take, at its sole cost and expense, any further action necessary to comply with all applicable Environmental Laws and Regulations, including but not limited to obtaining a No Further Action Letter and a release of liability from PADEP in connection with the Gas and Automotive Contamination. Seller shall cause it contractor, Youghiogheny Industries, Inc. ("Seller's Contractor"), to immediately complete the remediation of the Gas and Automotive Contamination on the Property, in compliance with the Site Characterization and Remedial Action Plan proposed by Seller's Engineer, including such further action as may be determined necessary by PADEP to release Seller and any subsequent owner of the Property from environmental liability with respect to the Property. 5. The representations, warranties, and covenants of Seller set forth in this Agreement shall continue for so long as a valid claim may be lawfully asserted against the Buyer with respect to matters for which Buyer is indemnified under this Agreement. 6. Those liabilities, losses, claims, damages and expenses for which Buyer is indemnified under this Agreement shall be reimbursable to Buyer as Buyer's obligations to make. payments with respect thereto are incurred, without any requirement of waiting for ultimate outcome of any litigation, claim, or other proceeding, and Seller shall pay such liability, losses, claims, damages, and expenses to Buyer as so incurred within thirty (30) days after notice from Buyer itemizing the amounts incurred to the date of such notice. In addition to any remedy available for failure to periodically pay such amounts, such amounts shall thereafter bear interest at the maximum rate of interest allowed in the State of Pennsylvania. 7. Seller waives any acceptance of this indemnity by Buyer. The failure of Buyer to enforce any right or remedy hereunder, or to promptly enforce any such right or remedy, shall not constitute a waiver thereof nor give rise to any estoppel against Buyer, nor excuse Seller from its obligations hereunder. Any wsiiver of such right or remedy must be in writing and signed by Buyer. This indemnity is subject to enforcement at law and/or equity, including MDWO 12/15/2004 15:08 7172431850 actions for damages and/or specific performance. This Agreement is executed in order to induce the Buyer to purchase the Property. PAGE 20/22 (Signature Page to Follow) 12/15/2004 15:08 7172431850 MDWO PAGE 21/22 IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto have executed this Agreement as of the day and year first above written, but actually executed on the dates set forth opposite each party's respective signature below. SELLER: DAUPHIN NY, INC. Y: Title: v ` PURCHASER: GVH (CARLISLE), L.P., 8 Tennessee limited partnership BY: GVH, INC., a Tennessee corporation, General Partner BY: Title: IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto have executed this Agreement as of the day and year first above written, but actually executed on the dates set forth opposite each party's respective signature below. SELLER: DAUPHIN OIL COMPANY, INC. BY: Title: PURCHASER: GVH (CARLISLE), L.P., a Tennessee limited partnership BY: GVH, INC., a Tennessee General Partner BY: Title: MDWO PAGE 22/22 12/15/2004 15:08 7172431850 STATE OF COUNTY OF ) On thi the d o December, 2004, before me, the undersigned officer, personally a aced , who acknowledged himself to be the of DAUPHIN OIL COMPANY, INC, a Pennsylvania corporation, and that he, as being authorized to do so, executed the foregoing instrument for the pose. t ere contained by signing the naive of the corporation by himself as 35of the corporation. a_ 2004. Witness my hand, at office, this day o , Giu-/,?/,.'.? NOTARY PUBLIC My Commission Expires: STATE OF ) COUNTY OF 1 NOTARUIL SEAL VICTORIA 4 OYIC NOTARY PUBLIC CARLME BOND Ny 0 061 EXPIRES D C. 2 2006 On this, the day of December, 2004, before me, the undersigned officer, personally appeared Gregory V. Hurley, who aclotowledged himself to be the President of GVH, Inc., a Tennessee corporation and the sole General Partner of GVH (CARLISLE), L.P., a Tennessee limited partnership, and that he, as President of the General Partner, being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of the limited partnership by himself as President of the General Partner. Witness my hand, at office, this day of 12004. NOTARY PUBLIC My Commission Expires: 6 STATE OF } COUNTY OF ) On this, the personally appeared he, as the purpose therein day of November, 2004, before me, the undersigned officer, , who acknowledged himself to be the of DAUPHIN OIL COMPANY, INC, a Pennsylvania corporation, and that , being authorized to do so, executed the foregoing instrument for contained by signing the name of the corporation by himself as of the corporation. Witness my hand, at office, this STATE OF COUNTY OF y Jx ?? ) day of , 2004. NOTARY PUBLIC My Commission Expires: 09c.&-fA.&3cr-y2 On this, the 1 day of Novcmbcr, 2004, before me, the undersigned officer, personally appeared Gregory V. Hurley, who acknowledged himself to be the President of GVH, Inc., a Tennessee corporation and the sole General Partner of GVH (CARLISLE), L.P., a Tennessee limited partnership, and that he, as President of the General Partner, being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of the limited partnership by himself as President of the General Partner. Witness my hand, at office, this day of ?tZcAc12, 2004. I1; ##s,,, Sp E k,''•.,, m STATE OF TENNESSEE • NOTARY :2= 9'• PUBLIC "'-T , 'ON My Congnission Expires JAN. 28, 2006 Z-V- NUrARY PUBL My Commission Expires: ?T J o W_ 6 3 MDWO PAGE 07/22 12/15/2004 15:08 7172431850 THIS INSTRUMENT PREPARED BY- Sam D. Hodges, III Grissim and Hodges 323 Union Street, Suite 400 Nashville, TN 37,201 ESCROW AGREEMENT THIS AGREEMENT, made as of the N ? day of December,, 2004, by and among DAUPHIN OIL COMPANY, INC., a Pennsylvania corporation (the "Seller"); GVH (CARLISLE), L.P., a Tennessee Limited Partnership (the "Purchaser"); and Martson, Deardorff, Williams & Otto, a Professional corporation (the "Escrow Agent"). WITNESSETH: WHEREAS, by Purchase & Sale Agreement dated as of September 25, 2002, as subsequently amended (the "Contract"), Seller agreed -to sell to Buyer, and Buyer agreed to purchase from Seller, certain property located in Cumberland County, Pennsylvania, as more particularly described therein (the "Property") according to the terms and conditions contained therein; and WHEREAS, in connection with Buyer's anticipated purchase of the Property, Buyer has obtained from Whitestone Associates, Inc. ("Buyer's Engineer") a Phase I Environmental Site Assessment (the "Phase I") dated April 2, 2004, Project No. WP03-5885 (the "Phase 1") and a Limited Phase 11 Site Investigation dated May 5, 2003, Project No. WP03-5993 (the "Phase Il'). on the Property (the Phase I and the Phase 11 being hereinafter referred to as `Buyer's Environmental Reports"); and WHEREAS, Buyer's Environmental Reports revealed evidence of recognized environmental conditions with regard to the Property's previous use as automobile repair facility and gasoline station; and WHEREAS, Section 8(d) of the Contract provides that Seller shall indemnify Buyer and hold Buyer harmless from and against any and all "claims, obligations and liabilities and all costs, expenses and attorneys' fees incurred, based upon or arising out of any obligation, liability, loss, damage or expense, of whatever kind of nature, contingent or otherwise, known or unknown, incun-ed under, or imposed by any provision of federal, state or local law or regulation, or corunon law, pertaining to health, safety or environmental protection, including without limitation, such laws or regulations pertaining to the storage, transportation, handling, disposal, discharge, presence or use of hazardous materials or wastes," which indemnification shall survive the closing of the sale of the Property to Buyer; and WHEREAS, in connection with the sale of the Property to Buyer, Seller has undertaken to remediate the environmental contamination evidenced by Buyer's Environmental Reports; and 12/15/'2004 15:08 7172431850 MDWO PAGE 08/22 WHEREAS, Seller has contracted with Environmental Reinediation & Recovery, Inc. ("Seller's Engineers"), under their Project No. 2004.14, to supervise the rcmediation of the Gas and Automotive Contamination, as defined below, on the Property (the "Property Clean-up"); and WHEREAS, during the process of remediation, Seller's Engineers have identified evidence of additional contamination of the Property (the Buyer's Environmental Reports and the additional reports of Seller's Engineers are hereinafter collectively referred to as the "Environmental Reports," and the contamination of the Property reflected by the Environmental Reports is hereinafter collectively referred to as the "Gas and Automotive Contamination"); and WHEREAS, as of the date hereof, the rcmediation of the Gas and Automotive Contamination has not yet been completed; and WHEREAS, Seller and Purchaser have agreed to proceed with the Closing, with the sum of One Hundred Thousand and No/100 Dollars ($100,000.00) to be withheld from the Seller's sale proceeds from the Property (the "Escrow Fund"), deposited in escrow and disbursed in accordance with the provisions of this Agreement. NOW, THEREFORE, the parties hereto agree as follows: 1. Establishment of the Escrow Fund. The Escrow Fund shall be placed in an escrow account and disbursed in accordance with the provisions of is Agreement. The Escrow Fund shall be placed in an interest bearing account at . Any interest earned on the Escrow Fund sliall be added to the Escrow Fend and become a part thereof. The Escrow Agent shall not be responsible for any interest except for interest as it actually received, nor shall the Escrow Agent be responsible for the loss of any interest arising from the closing of any account or the sale of any certificate of deposit or other instrument prior to maturity. The Escrow Agent hereby acknowledges its receipt of the Escrow Fund and agrees to hold and disburse the same in accordance with the provision so this Agreement. 2. Property Clean-up. (a) The Seller shall furnish all labor, materials, and equipment for the Property Clean- up. All work shall be in accordance with and under the supervision of Seller's Engineers, and shall comply with the rules, regulations and standards of the Pennsylvania Department of Einvironrncntal Protection ("PADEP"). The Seller shall be responsible for all costs of the Property Clean-up, including but not limited to any monitoring requirements and follow-up environmental reports necessary to document the Property Clean-up. The Property Clean-up shall include any additional petroleum related contamination discovered by Seller, Seller's Engineers, or Youghiogheny Industries, Inc. ("Seller's Contractor"), in the process of the Property Clean-up. The Property Clean-up shall also include any additional petroleum related contamination discovered by Purchaser, Purchaser's Engineers, or Sehaerer Contracting 12/15/2004 15:08 7172431850 MDWO PAGE 09/22 Company, Inc. ("Purchaser's Contractor"), in conducting site work, excavation for footings, or related activities on the Property. (b) Seller agrees to complete the Property Clean-up by December 30, 2004, subject to weather and site conditions permitting such completion date, and Seller shall cause all work herein described and the several parts thereof to be performed continuously, energetically and expeditiously in substantial conformity with the requirements of this Agreement. 3. Disbursements. The Seller and Purchaser shall direct Escrow Agent to make the disbursement of all sums held in the Escrow Fund upon receipt of the following items: (a) A certificate of Seller's Engineers stating that the Property Clean-up has been completed in a good and workmanlike manner and in material compliance with PADEP requirements. (b) Delivery to Purchaser of written notification from PADEP of a "No Further Action Letter" and a release of, Seller, and Seller's successors and assigns, including Purchaser, and its successors and assigns, from environmental liability pursuant to Act 2 of the PADEP Rules and Regulations. (c) An affidavit of the Seller's Engineers and/or related contractors, addressed to the Seller and Purchaser, stating that all suppliers of labor and/or materials for the Property Clean-up have been paid without any continuing dispute over the charges or value of their materials or services, or that the final disbursement will be sufficient to pay all such charges in full, with no such dispute. 4. Default. (a) The Seller hereby agrees that if the Seller fails diligently to pursue the work required to be done under this Agreement or fails to make progress required by this Agreement or if the Seller shat( abandon work or any part thereof or fails in any way to perform the terms of this Agreement on its part to be performed, the Purchaser shall have the right, if it so elects after ten (10) days' written notice to Seller and Escrow Agent and without prejudice to any other rights it may have, to take any other steps it deems advisable to secure the necessary labor and material to complete the Property Clean-up. (b) In the event a default is declared hereunder, the Escrow Agent is authorized to make disbursement from the Escrow Fund to pay the cost of completing the Property Clean-up upon direction from the Purchaser as provided herein. The Sealer acknowledges that the Purchaser will rely on the Seller's timely performance of the work and completion of the work on or before the date specified herein. PAGE 10/22 MDWO 12/15/2004 15:08 7172431850 Escrow Agent's Duties. (a) If any disagreement or dispute shall arise between or among any of the parties hereto and/or any other persons resulting in adverse claims and demands being made for the Escrow Fund, whether or not litigation has been instituted, then, in any such event, at the Escrow Agent's option. (i) the Escrow Agent may refuse to comply with any claims or demands on it continue to hold the Escrow Fund until the Escrow Agent receives written notice signed by the Seller, the Purchaser and any other person who may have asserted a claim to or made a demand for the Escrow Fund, directing the disbursement of the Escrow Fund in accordance with said direction, and the Escrow Agent shall, not be or become liable in any way or to any person for its refusal to comply with such claims or demand; (ii) in the event the Escrow Agent shall receive a written notice advising that litigation over entitlement to the Escrow 'Fund has been commenced, the Escrow Agent may deposit the Escrow Fund as provided in subsection (iii) below; or (iii) the Escrow Agent may (but shall not be required to) take such affirmative steps as it may, at its option, elect in order to substitute another impartial party to hold the Escrow Fund or to deposit the same in a court of competent jurisdiction and to commence an action for interpleader, the costs thereof to be borne by whichever of the Seller and the Purchaser is the losing parry, and thereupon the Escrow Agent shall be released of any and all liability thereunder. The Seller and the Purchaser jointly and severally agree to reimburse the Escrow Agent for any and all out-of-pocket expenses incurred in the discharge of its duties under this Article, including, but not limited to, attorneys' fees. The Escrow Agent acknowledges that it shall not be entitled to any fees or other compensation for the performance of its duties hereunder. (b) It is expressly understood that the Escrow Agent acts hereunder as an accommodation to the Seller and the Purchaser and as a depositary only and is not responsible or liable in any manner whatever for the sufficiency, correctness, genuineness or validity of any instrument deposited with it, or for the form of execution of such instruments or for the identity, authority or right of any person executing or depositing the same or for the terms and conditions of any instrument pursuant to which the Escrow Agent or the parties may act. (c) The Escrow Agent shall not have any duties or responsibilities except those set forth in this paragraph and shall not incur any liability in acting upon any signature, notice, request, waiver, consent, receipt or other paper or document believed by the Escrow Agent to be genuine, and the Escrow Agent may assume that any person 4 12/15/2004 15:08 7172431850 MDWO PAGE 11/22 purporting to provide it any notice on behalf of any patty in accordance with the provision hereof has been duly authorized so to do. (d) The Escrow Agent may act or refrain from acting in respect of any matter referred to herein in full reliance upon and by and with the advice of counsel which may be selected by it, and shall be My protected in so acting or refraining from acting upon the advice of such counsel. (c) The Seller and the Purchaser hereby jointly and severally indemnify and agree to indemnify and hold the Escrow Agent harmless from any and all loss, damage, claims, liabilities, judgments and other costs and expenses of every kind and nature which may be incurred by the Escrow Agent by reason of its acceptance of, and its performance under, this Agreement (including, without limitation, attorneys' fees), except for actions by the Escrow Agent constituting willful misconduct or gross negligence. (fj The Escrow Agent shall not be responsible for any act or failure to act on its part except in the case of its own willful default or gross negligence. The Escrow Agent shall be automatically released from all responsibility and liability under this Agreement upon the Escrow Agent's delivery or deposit of the Escrow Fund, in accordance with the provisions of this Agreement. (g) The Seller and the Purchaser agree that if either shall deliver, to the Escrow Agent a written demand for the Escrow Fund or any part thereof, the party making such demand shall, promptly after delivering such demand to the Escrow Agent, deliver a copy of such demand to the other party, together with a statement of the facts and circumstances underlying the demand; provided, however, that nothing in this subparagraph (g) shall have any effect whatsoever upon the Escrow Agent's rights, duties and obligations under the preceding parts of this Agreement. 6. Miscellaneous. (a) This Agreement shall be governed by and in accordance with the laws of the State of Pennsylvania. (b) All notices, demands or requests madepursuant to, under or by virtue of this Agreement must be in writing and delivered to the party to which the notice, demand or request is being made by deposit in the United States mail, "Certified - Return Receipt Requested", or by deposit with a national recognized overnight courier service marked for next day delivery, addressed as follows. To the Seller: Dauphin Oil Company, Inc. P. 0. Box 600 Carlisle, Pennsylvania 17013 MDWO 12/15/2004 15:08 7172431850 With copy to: Martson Deardorff Williams & Otto, a Professional corporation Ten East High Street Carlisle, Pennsylvania 17013-3015 Attn- No V. Otto, III, Esq. To the Purchaser: GVH (Carlisle), L.P. 323 Union Street, Suite 300 Nashville, Tennessee 37201 Attn: Greg V. Hurley With copy to: Sam D. Hodges, 111, Esq. Grissim and Hodges 323 Union Street, Suite 400 Nashville, Tennessee 37201 To the Escrow Agent: Martson Deardorff Williams & Otto, a Professional corporation Ten East High Street Carlisle, Pennsylvania 17013-3015 Attn: No V. Otto, III, Esq. PAGE 12/22 (c) This Agreement may not be changed, modified, or terminated except by an instrument executed by the parties hereto. (d) The terms and provisions of this Agreement shall be binding upon and the benefits thereof shall inure to the parties and their respective heirs, personal representatives, successors and assigns. (e) The terms of this Agreement shall be construed under the laws of the State of Pennsylvania. (f) The sections of this Agreement are intended to be severable. If any term, covenant, or provision of this agreement shall be held to be invalid, illegal or unenforceable this agreement shall be construed without such term, covenant or provision and shall remain in full force and effect. (g) Nothing contained herein or in any related document shall be deemed to render Purchaser or Seller a partner of the other for any purpose. (h) This Agreement constitutes the sole and entire Agreement between the parties hereto, and no modifications of this Agreement shall be binding unless attached hereto and signed by all parties to this Agreement. No representations, promise, or 6 12/15/'2004 15:08 7172431850 MDWO PAGE 13/22 inducement to this Agreement not included in this Agreement shall be binding upon any party hereto. (1) This Agreement may be executed in one or more counterparts, all of which together shall constitute a single Agreement and each of which shall be an original for all purposes. Execution of this Agreement may be evidenced by facsimile transmission of any party's signature, with original signatures to follow by U.S. Mail. (Signature Page to follow) 7 PAGE 14/22 7172431650 MDWO 12/15/2004 15:08 IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto have executed this Agreement as of the day and year first above written, but actually executed on the dates set forth opposite each party's respective signature below. SELLER: DAUPHIN NY, INC. Dated: V Title: PURCHASER: GVH (CARLISLE), L,P., a Tennessee limited partnership Dated: BY: GVH, INC., a Tennessee corporation, General Partner BY:_ Title: ESCROW AGENT: Dated: MARTSON, DEARDORFF, WILLIAMS & OTTO, a Professional Corporation BY: NX Title: IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto have executed this Agreement as of the day and year first above written, but actually executed on the dates set forth opposite each party's respective signature below. Dated: BY: SELLER: DAUPHIN OIL COMPANY, INC. Title: PURCHASER: GVH (CARLISLE), L.P., a Tennessee limited partnership Dated: y$,) 1410) BY: GV] Gei Dated: BY: BY: Tith ESCROW AGENT: MARTSON, DEARDORFF, WILLIAMS & OTTO, a Professional Corporation Title: PAGE 15/22 MD4O 12/1'5/2004 15:08 7172431850 STATE OF COUNTY OF ?C On this, the / da ff er, 2004, before me, the undersigned officer, pe,rpnall}? ap eared who acknowledged himself to be the . o DAUPHIN OIL OMPANY, INC, a Pennsylvania corporation, and that he, as .?LLec , being authorized to do so, executed the foregoing instrument for the p ose erein contained by signing the name of the corporation by himself as `?rof the corporation. Witness my hand, at office, this IZ!?~day of , 2004. NOTARY PUBLIC My Commission Expires; o? TAFUL SEAL STATE OF ) COUNTY OF ) A L IUTLDEC.-2 PUBLIC LCARLUIS"RLTOBORG CUMBERD COUNTY Y COMMISS154 EXPIRES 2006 On this, the day of November, 2004, before me, the undersigned officer, personally appeared Gregory V. Hurley, who acknowledged himself to be the President of GVH, Inc., a Tennessee corporation and the sole General Partner of GVH (CARLISLE), L.P., a Tennessee limited partnership, and that he, as President of the General Partner, being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of the limited partnership by himself as President of the General Partner. Witness my hand, at office, this day of 2004. NOTARY PUBLIC My Commission Expires. 9 day of November, 2004, before me, the undersigned officer, who acknowledged himself to be the of DAUPHIN OIL COMPANY, INC, a Pennsylvania corporation, and that , being authorized to do so, executed the foregoing instrument for contained by signing the name of the corporation by himself as of the corporation. Witness my hand, at office, this day of , 2004. STATE OF _ COUNTY OF On this, the personally appeared he, as the purpose therein STATE OF Z?7V Nt'?Sc?- ) COUNTY OF tjW?,? t ns crcV ) NOTARY PUBLIC My Commission Expires: 1 tc?,nt3c°? On this, the 1 y day of . 2004. before me_ the undersigned efficer_ personally appeared Gregory V. Hurley; who acknowledged himself to be the President of GVH, Inc., a Tennessee corporation and the sole General Partner of GVH (CARLISLE), L.P., a Tennessee limited partnership, and that he, as President of the General Partner, being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of the limited partnership by himself as President of the General Partner. Witness my hand, at office, this 14 ? day of 2004. ••.•`?"? J AN E ?Yj N ARY PUBLIC,) • '` = My Commission Expires: 1 xi C9STATE •y?•• O = OF • 2 - TENNESSEE = C NOTARY :9L • PUBLIC ON couvo ??IIIII???S, My CommissionExpi;cs =,:.4. .?, 9 12/15/2004 15:08 7172431850 MDWO PAGE 16/22 STATE OF _ .Gr-«-rjl COUNTY OF On this, the /S/Aday f bberr,r 2004, before me, the undersigned officer, personally appearedo I l o_? who acknowledged himself to be the Il?tS.cth.?t- ,0, Manson, Deardorff, Williams & Otto, a professional corporation, and that he, as -_I,_ ora?-4, of the professional corporation, being authorized to do so, executed the foregoing instrument for the pu se therein contained by signing the name of the professional corporation by himself as .?teaa urLzA- Witness my hand, at office, this day of Lgge,- , 2004. Gj .. NOTARY PUBLIC My Commission Expires. NOTARIAL. SE111 VICTORIA L OTTO NOTARY PUBLIC CAW COMMIIS. SS151 IX MBE DEC. 2Z. 2006 10 y COMMONWEALTH OF PENNSYLVANIA CIVIL COMPLAINT COUNTY OF: CUMBERLAND M.enle,u? O,alrict Nurnoer. PLAINTIFF: NAME. mod ADOREM 09-2-01 r Dismal Justice NSA,*: Mo., Dauphin Oil Company, Inc PAULA P. CORREAL 815 Newville Road -Zd,e -2260 SPRING ROAD Carlisle;-Pa--47013 SUITE 3 CARLISLE, PA 17013 .VS. Tekphu,,. (717)218-5250 DEFENDANT: .LAME MW ADDRESS r GVH (Carlisle) LP 2) A-W. Skeba LLC 323 Union St-Ste 400 25 Wyckoff ' s Mill Nashville, TN 37201 A,pplegar Rd. Attn: Sam D. Hodges III Monroe Twp, NJ 08831 Docket No.: CV-129-06 Date Flied: 8/17/06 .- AMOUNT DATE PAID 3) Eckert Drug Store FILING COSTS S 51.50 I / 429/431 S. Hanover St. SERVING COSTS $ 25.50 Carlisle, PA 17013 TOTAL S 77.00 all 7/06 TO THE DEFENDANT: The above named plaintiff(s) asks judgment against you for 130.20 together with costs upon the following claim (Civil fines must Include citation of the statute or ordinance violated): This invoice is unpaid interest charging $130.20 interest in connection with escrow agreement between Dauphin Oil Co & Sam Hodges III of GVH (Carlisle) LP due to Mr. Hodges obstinance in connectiion with termination of agreement. I, James Rutledge verify that the facts set forth. in this complaint are true and correct to the best of my knowledge, information, and belief. This statement Is roads subject to the penalties of Section 4904 of the Crimes Code (18 PA. C.S. § 4904) related to unsworn falsification to authorities. Plalntlff'3 Attorney: Telephone: (717) Address: IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAINT, NOTIFY THIS OFFICE IMMEDIATELY AT THE ABOVE TELEPHONE NUMBER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO, JUDGMENT WILL BE ENTERED AGAINST YOU BY DEFAULT. If you have a claim against the plaintiff which is within district justice jurisdiction and which you intend to assert at the hearing, you must file it on a complaint form at this office at least five (5) days before the date set for the hearing. If you have a claim against the plaintiff which is not within district justice jurisdiction, you may request information from this office as to the procedures you may follow. If you are disabled and require assistance, please contact the Magisterial District office at the address above. AOPC 308A (12.1-98) or ,, TUCKER, ARENSBERG Attorneys September 15, 2006 VIA FIRST CLASS MAIL AND FAX NO. 717-218-5253 Hon. Paula P. Correal 2260 Spring Road, Suite #3 Carlisle, PA 17013 FILE COPY Kenneth W. Lee klee@tuckerlaw.com Re: Dauphin Oil Co., Inc. v. GVH (Carlisle) LP, Eckerd Drug Stores and A.W. Skeba, LLC Docket No.: CV-0000129-06 Our File No.: 019264 - 123964 Dear Judge Correal: Please be advised that we have been engaged to represent the defendants in regard to the above-captioned matter. The Complaint refers to "interest in connection-with an escrow agreement between Dauphin Oil Co... GVH (Carlisle) LP". Enclosed are copies of the first two pages of the Escrow Agreement as well as copies of the signature page and Affidavit as to Dauphin Oil Co., Inc. Please note that the Escrow Agreement was executed on behalf of Dauphin Oil Co., Inc. by James Rutledge, the individual who signed the Complaint filed with your office on behalf of Dauphin Oil Co., Inc. In response to the Complaint we provide the following: Mr. Rutledge is, to our knowledge, not an attorney licensed to practice law in the Commonwealth of Pennsylvania and may not represent Dauphin Oil Co., Inc.; 2. Pursuant to 42 Pa.C.S.A. §1515(a)(3)(i) there is no jurisdiction vested in your court because the Escrow Agreement is a part of the purchase and sale of real property as set forth in the first "Whereas" clause of the enclosed Escrow Agreement; 3. Pursuant to the second sentence of the paragraph numbered 1 on page 2 of the Escrow Agreement any interest pertaining to the Escrow Fund is to be placed into the Escrow Fund and may not be the basis of a separate cause of action; and 4. Eckerd Drug Stores and A.W. Skeba, LLC are improper defendants in this case because they are not parties to the Escrow Agreement. Tucker Arensberg, P.C. 111 N. Front Street P.O. Box 889 Harrisburg, PA 17108 p. 717.234.4121 f. 717.232.6802 www.tuckerlaw.com 1500 One PPG Place Pittsburgh, PA 15222 p. 412.566.1212 f. 412.594.5619 w? TUCKER I ARENSBERG I Attorneys Hon. Paula P. Correal September 15, 2006 Page 2 Therefore, we ask that either this matter be dismissed with prejudice or the hearing scheduled for Monday, September 18, 2006, be continued so that appropriate defenses on behalf of our clients can be presented. Though we could obviously await the entry of judgment and file an appropriate petition for certiorari to challenge jurisdiction, we are attempting to utilize this more informal process so as to avoid costs and attorneys' fees to our clients. The inappropriateness of this proceeding before you is obviously due to the failure of Dauphin Oil Co., Inc. to have licensed legal counsel representing it. In the meantime, should you have any questions, please contact me. Very truly yours, CKER ARENSBERG, P.C. Kenneth W. Lee KWUdth Enclosure cc: Dauphin Oil Co., Inc 89704.1 (w/encl.) (via first class mail and fax no. 717-243-9018) ?? ? ~ s'::? ems.) . ?? { r ? ` ? ? .3.? =s. ?^ , " " 1 f 1 ? i ? ? ._ -- :.G ?`. D IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC. Plaintiff No. 07-135 V. GVH (CARLISLE), L.P., Defendant Civil Action - Law PLAINTIFF'S REPLY TO NEW MATTER AND COUNTERCLAIM AND NOW, comes the Plaintiff, Dauphin Oil Company, Inc., and hereby avers as follows: 13. Denied. The averments contained in this paragraph state legal conclusions to which no response is required. 14. Denied. The averments contained in this paragraph state legal conclusions to which no response is required. 15. Denied. The averments contained in this paragraph state legal conclusions to which no response is required. To the extent that a response is required, it is specifically denied that Defendant GVH is entitled to compensation for any environmental remediation it performed on the property. By way of further explanation, the environmental remediation performed by Plaintiff and its contractor was satisfactory and complied with the requirements of the Escrow Agreement. It is further denied that the Plaintiff has failed to produce any documentation required of the Escrow Agreement. 16. Admitted in part and denied in part. It is admitted that Defendant's counsel sent letters to Plaintiff's counsel dated December 8, 2006 and January 9, 2007. To the extent these averments seek to summarize those letters, they are denied as both letters are written documents that speak for themselves. As to the balance of the averments in this paragraph, after reasonable investigation, Plaintiff is without sufficient information or knowledge to form a belief as to their truth and they are therefore denied. 17. Denied. After reasonable investigation, Plaintiff is without sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph. 18. Admitted in part and denied in part. It is admitted that Plaintiff has not instructed the Escrow Agent to release the escrow funds to Defendant. It is denied that GVH is entitled to any of the escrow funds. The balance of the averments contained in this paragraph are denied as they are legal conclusions to which no response is required. WHEREFORE, Plaintiff demands judgment in its favor. III. COUNTERCLAIM A. FACTS 19. Admitted. 20. Admitted. 21. Denied. The deed dated July 6, 1966, and filed in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, Deed Book Volume A22, Page 403, is a written document which speaks for itself. 22. Admitted in part and denied in part. It is admitted that the Plaintiff's operations included the sale of petroleum and petroleum by-products from underground storage tanks. The balance of the averments in this paragraph are denied in that after reasonable investigation, Plaintiff is without sufficient knowledge or information to form a belief as to the representation of `numerous and voluminous' underground storage tanks present on the Premises. 23. Denied. After reasonable investigation, Plaintiff is without sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph. 24. Denied. After reasonable investigation, Plaintiff is without sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph. 25. Denied. After reasonable investigation, Plaintiff is without sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph. 26. Admitted. 27. Admitted. 28. Admitted. 29. Admitted. 30. Admitted. It is admitted that between September 25, 2002 and December 15, 2004, numerous types of Pollutants were discovered on the Premises. 31. Denied. It is specifically denied that the Plaintiff has failed to remove the Pollutants from the Premises pursuant to its obligation under the Hazardous Waste Indemnity Agreement (hereinafter "Indemnity") and the Escrow Agreement (hereinafter "Escrow") both dated December 15, 2004. 32. Denied. After reasonable investigation, the Plaintiff is without sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph. 33. Admitted in part and denied in part. It is admitted that the parties closed on the property on December 15, 2004. Plaintiff is without sufficient knowledge or information concerning the Defendant's motivation in entering the Hazardous Waste Indemnity Agreement and the Escrow Agreement both dated December 15, 2004. 34. Admitted. 35. Admitted in part and denied in part. It is admitted that the $100,000.00 placed into the Escrow Account is subject to the Escrow Agreement. The remaining averments in this paragraph are denied in that they relate to the Indemnity and the Contract, both of which are written documents that speak for themselves. 36. Denied. The averments contained in this paragraph are legal conclusions to which no response is required. To the extent a response is required, these averments are denied to the extent that they are based upon written documents that speak for themselves. 37. Denied. After reasonable investigation, Plaintiff is without sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph. 38. Denied. After reasonable investigation, Plaintiff is without sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph. 39. Denied. After reasonable investigation, the Plaintiff is without sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph. 40. Denied. After reasonable investigation, Plaintiff is without sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph. 41. Denied. The averments contained in this paragraph state legal conclusions to which no response is required. 42. Admitted in part and denied in part. It is admitted that Plaintiff has not paid Defendant the amount demanded. It is denied that Defendant is due any monies. B. COUNT I - BREACH OF CONTRACT 43. Paragraphs 1 through 42 are hereby incorporated by reference as though if fully set forth at length herein. 44. Denied. The averments contained in this paragraph state legal conclusions to which no response is required. 45. Denied. The averments contained in this paragraph state legal conclusions to which no response is required. 46. Denied. The averments contained in this paragraph state legal conclusions to which no response is required. 47. Denied. The averments contained in this paragraph state legal conclusions to which no response is required. 48. Denied. The averments contained in this paragraph state legal conclusions to which no response is required. WHEREFORE, Plaintiff demands judgment in its favor. C. COUNT II - ABUSE OF PROCESS 49. Paragraphs 1 through 48 are hereby incorporated by reference as though if fully set forth at length herein. 50. Admitted. 51. Admitted in part and denied in part. It is admitted that Counsel for GVH sent a letter dated September 15, 2006 to the District Magistrate. The balance of the averments in this paragraph state legal conclusions to which no response is required and they are therefore denied. 52. Admitted in part and denied in part. It is admitted that Plaintiff did not move to have the action dismissed. The balance of the averments contained in this paragraph state legal conclusions to which no response is required and they are therefore denied. 53. Admitted. It is admitted that no one appeared to represent Plaintiff's interests in the Magistrate Action on November 6, 2006. It is further noted that Mr. James Rutledge specifically avers that he was not aware of the date and time set for the hearing. 54. Admitted. 55. Denied. The averments contained in this paragraph state legal conclusions to which no response is required. 56. Denied. After reasonable investigation, Plaintiff is without sufficient knowledge or information to form a belief as to the truth of the averments contained in this paragraph. 57. Denied. The averments contained in this paragraph state legal conclusions to which no response is required. I,- J WHEREFORE, Plaintiff demands judgment in its favor. q-3o Date Res pectfully Submitted, SAIDIS, FLOWER & LINDSAY By: R e is, Esquire Attorney ID 1458 Dean E. Reynosa, Esquire Attorney ID 80440 Saidis, Flower & Lindsay Attorneys for Plaintiff 26 West High Street Carlisle, PA 17013 (717) 243-6222 ,- 14 VERIFICATION I, James W. Rutledge, President, Dauphin Oil Company, Inc., hereby verify that the statements made in the foregoing, Plaintiff's Reply to New Matter and Counterclaim are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: 2007 w? GJ / j W. Rutledge 4 Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC. Plaintiff No. 07-135 V. GVH (CARLISLE), L.P., Defendant Civil Action - Law CERTIFICATE OF SERVICE AND NOW, April 30, 2007, I, Dean E. Reynosa, Esquire, hereby certify that I did serve a true and correct copy of the foregoing Reply to New Matter and Counterclaim upon the following counsel of record by depositing, or causing to be deposited, via first class mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Kenneth W. Lee, Esq. Tucker Arensberg, P.C. 111 North Front Street P. O. Box 889 Harrisburg, PA 17108 Saidis, Flower & Lindsay Esquire g n C-D .-4 may. W t J ? l c : J E G -C -- _ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC. Plaintiff No. 07-135 V. GVH (CARLISLE), L.P., Defendant Civil Action - Law MOTION TO COMPEL CA AND NOW, this 5 day of February 2008, comes the Plaintiff, Dauphin Oil Company, Inc., by and through its attorneys, the law firm of Saidis, Flower and Lindsay, and respectfully represents as follows: 1. Plaintiff initiated this action by filing a Complaint on or about January 8, 2007. 2. The pleadings in this case are now closed. 3. No judge of this Court has ruled upon any issue in this case. 4. Plaintiff served Defendant's counsel with discovery requests including Request for Production of Documents and Interrogatories on August 10, 2007. See Request for Production of Documents and Interrogatories attached hereto as Exhibits "A" and "B" 5. Having received no response to the outstanding Discovery Requests, undersigned counsel inquired of Defendant's counsel by letter dated October 4, 2007 when responses could be expected. See October 4, 2007 letter attached hereto and incorporated herein as Exhibit "C". 6. Undersigned counsel spoke with Defendant's counsel in early November concerning the outstanding discovery requests. 7. Undersigned counsel sent a second letter on December 10, 2007, concerning the outstanding discovery requests. See letter dated December 10, 2007, attached hereto as Exhibit "D." 8. Undersigned counsel granted an extension until the end of January 2008 for Defendant to provide responses to the outstanding discovery requests. See letter dated January 4, 2008 attached hereto as Exhibit "E." 9. Defendant's counsel did serve upon the undersigned Defendant's Reply to Plaintiff's First Request for Production of Documents. See Reply attached hereto as Exhibit "F." 10. While no documents accompanied the Defendant's reply, for several of the responses, Defendant indicates that it will produce documents at a mutually convenient time in the future; specifically requests numbered 6, 7 and 8. 10. The Defendant has failed to provide any response to the Plaintiff's Interrogatories. 11. It has been more than five (5) months since the discovery requests were first served on Defendant's counsel. 12. The Rules of Civil Procedure require that the discovery requests be answered within thirty (30) days. 13. Undersigned counsel has spoken with counsel for the Defendant and he does not concur with this motion. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an Order requiring Defendant to provide full and complete responses to the Plaintiffs outstanding Interrogatories and Request for Production of Documents. Respectfully Submitted, SAIDIS, FLOWW& LINDSAY `" ?'w By: Date Supreme Court I.D. 2109 Market Street Camp Hill, Pa 17011 Telephone: (717) 737-3405 Fax: (717) 737-3407 CERTIFICATE OF SERVICE AND NOW, February ? , 2008, I, Dean E. Reynosa, Esquire, hereby certify that I did serve a true and correct copy of the foregoing Plaintiff's Motion to Compel Discovery and Order upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail: Kenneth W. Lee, Esq. Tucker Arenberg, P.C. 111 North Front Street P. O. Box 889 Harrisburg, PA 17108 . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC. Plaintiff V. GVH (CARLISLE), L.P., Defendant No. 07-135 Civil Action - Law PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT Pursuant to Pa.R.C.P. No. 4009, as amended, the Plaintiff, Dauphin Oil Company, Incorporated, by its attorney, Dean E. Reynosa, Esquire, of the law firm of Saidis, Flower and Lindsay, requests that you produce copies of the following documents, at its expense, within thirty (30) days of service of this Request. INSTRUCTIONS 1. If you object to the production of any document on the grounds that the attorney- client, attorney work-product or any other privilege is applicable thereto, you shall, with respect to that document: a. State its date; b. Identify its author; C. Identify each person who prepared or participated in the preparation of the document; d. Identify each person who received it; e. Identify each person from whom the document was received; f. State the present location of the document and all copies thereof, g. Identify each person who has ever had possession, custody or control of it or a copy thereof; and ?. r fir, h. Provide sufficient information concerning the document and the circumstances thereof to explain the claim of privilege and to permit the adjudication of the propriety of that claim. 2. Document(s) shall mean any written, printed, typed, recorded, electronically stored, or graphic matter, whether original, master or copy, that is or has been in the possession or control of you or all other persons acting in your behalf or of which any such person has knowledge, including, but not limited to, letters, communications, e- mail, computations, estimates, correspondence, evaluations, studies, reports, projections, work papers, journals, plans, drawings, specifications, notebooks, surveys, graphs, articles, magazines, newspapers, press releases, telegrams, e-mails, notes, memoranda, summaries, minutes, records of telephone conversations, meetings and conferences, including lists of persons attending such, summaries and records personal conversations or interviews, books, manuals, publications, diaries, logs, charts, financial records and/or summaries of financial records, reports and/or summaries of investigations and/or surveys, statistical compilations, audio or visual recordings, computer or other magnetic or digital records, computer memory, hard or floppy disks, compact disks, or CD's, reports or summaries of negotiations, drafts of original or preliminary notes on and marginal comments appearing on any documents, every copy of such writing or record where the original is not in the possession, custody and control of the aforementioned persons, and every copy of every such writing or record where such copy contains any commentary or notation whatsoever that does not appear on the original. If any document requested to be produced is no longer in the possession or control of the aforementioned persons, or is no longer in existence, state whether it is (1) missing or lost, (2) destroyed, (3) transferred voluntarily or involuntarily to others and, if so, to whom or (4) otherwise disposed of; and explain the circumstances surrounding an authorization of such disposition thereof and state the approximate date thereof. 3. "You", "your" or "yourselves" shall mean and include Defendant, GVH (Carlisle), L.P., its officers, employees and agents, at both Corporate and Division levels, its attorney-in-fact, its attorney-at-law, and all other persons having possession, care, custody or control of any documents, knowledge or information of or on behalf of said Plaintiff. 4. "Premises" shall mean the Property located at 429 South Hanover Street, Borough of Carlisle, Cumberland County, Pennsylvania, that is subject to the instant litigation. 5. This Request for Documents is deemed to be continuing in nature and the answers thereto are to be supplemented promptly upon acquisition of further additional information or documents. If between the time of our answers thereto and the time of trial in this action, you or any one acting on your behalf obtain or learn of additional or new information requested by said Request for Documents and not supplied in your answers, then you shall promptly furnish supplemental answers thereof in writing, and under oath, containing the same. DOCUMENTS REQUESTED 1. All documents identified, referenced or relied upon in preparing your Answers to Interrogatories. RESPONSE: 2. All documents which support, substantiate, or detail the allegations contained in your Answer with New Matter. RESPONSE: 3. All contracts and/or agreements between the parties. RESPONSE: 4. All statements as defined by Pa.R.C.P. No. 4003 RESPONSE: 5. All documents which you intend to rely upon or introduce at trial of this litigation. RESPONSE: 6. All correspondence between the parties. RESPONSE: 7. All cancelled checks evidencing payments identified in your Answers to Interrogatories. RESPONSE: 8. All documents constituting communications, including ernails, correspondence, etc. concerning the Premises that is subject to this litigation. RESPONSE: 9. All documents relating to any environmental remediation that the Defendant alleges to have completed on the Premises including, but not limited to the work alleged to have completed as asserted in paragraphs 15 (a) and (b) of the Defendant's New Matter. RESPONSE: Respectfully submitted, SAIDIS, FLOWER & LINDSAY Y-10 -01 By: Date Dean . o Attorney I.D. 80440 Attorney for Plaintiff 2109 Market Street Camp Hill, PA 17011 (717) 737-3405 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC. Plaintiff No. 07-135 V. GVH (CARLISLE), L.P., Defendant Civil Action - Law CERTIFICATE OF SERVICE AND NOW, August 10, 2007, I, Dean E. Reynosa, Esquire, hereby certify that I did serve a true and correct copy of the foregoing Plaintiff's First Request for Production of Documents upon the following counsel of record by depositing, or causing to be deposited, via first class mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Kenneth W. Lee, Esq. Tucker Arensberg, P.C. 111 North Front Street P. O. Box 889 Harrisburg, PA 17108 Saidis, Flower & Lindsay Esquire IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC. Plaintiff No. 07-135 V. GVH (CARLISLE), L.P., Defendant Civil Action - Law TO: GVH (CARLISLE), L.P. Kenneth W. Lee, Esq. Tucker Arensberg, P.C. 1 I 1 North Front Street P. O. Box 889 Harrisburg, PA 17108 YOU ARE HEREBY NOTIFIED that you are required, pursuant to Pennsylvania Rule of Civil Procedure No. 4005, to serve upon the undersigned, within thirty (30) days, after service of this Notice, your Answer in writing under oath to the following r:. Interrogatories. These Interrogatories shall be deemed to be continuing and if, between the time of your Answers and the time of trial in this case, you, or anyone acting in your behalf, learn of any further information not contained in these Answers, you shall promptly furnish that information to the undersigned by Supplemental Answers. These Interrogatories are addressed to you as a party to this action and your answers shall be based upon the information known to you, or your attorney or other representatives. Please utilize the space below each Interrogatory to make your answer or objection and if additional space is required, attach an additional sheet or sheets numbered and lettered to correspond with the particular Interrogatory involved. FILE COPY A. The term "document" is an all inclusive term referring to (whether or not specifically called for) all printed, typewritten, handwritten, graphic, recorded or electronically stored matter, however produced or reproduced and however formal or informal. The term "documents" includes, without limitation, correspondence, memoranda, inter-office communications, emails, minutes, reports, charts, schedules, analysis, drawings, diagrams, tables, graphs, books-of-account, ledgers, invoices, purchase orders, pleadings, questionnaires, contracts, bills, checks, drafts, diaries, logs, proposals, telegrams, tax returns, financial statements, computer or other magnetic or digital records, computer memory, hard or floppy disks, compact disks, CD's, and any and all other documents tangible or retrievable of any kind. The term "documents" also includes any preliminary notes and drafts of all the foregoing, in whatever form, for example, printed, typed, long-hand, short-hand, on paper, paper tape, tabulating cards, ribbon blue prints, magnetic tape, micro film, film, motion picture film, phonograph records, computer disks, electronic files or any other form. B. Whenever you are asked to "identify" a document, the following information should be given as to each document of which you are aware, whether or not you have possession, custody or control thereof: (1) The nature of the document (e.g., letter, memorandum, computer print-out, tape recording, etc); (2) Its date (or if it bears no date, the date when it was prepared); (3) The name, address, employer and position of the signer or signers (or if there is no signer, of the person who prepared it); (4) The name, address, employer and position of the person, if any, to whom the document was sent; (5) If you have possession, custody or control of the document, the location and designation of the place or file in which it is contained, the name, address and position of the person having custody of the document; (6) If you do not have possession, custody or control of the document, the present location thereof and the name and address of the organization having possession, custody or control thereof; and (7) A brief statement of the subject matter of such document. C. "Premises" shall mean the Property located at 429 South Hanover Street, Borough of Carlisle, Cumberland County, Pennsylvania, that is subject to the instant litigation. D. "Plaintiff' shall mean and include Plaintiff, Dauphin Oil Company, Inc., its officer, owners, employees and agents, its attorneys-in-fact, its attorneys-at-law, and all other persons having possession, care, custody or control of any documents, knowledge or information of or on behalf of said Plaintiff. E. "Defendant" shall mean and include Defendant, GVH (Carlisle), L.P., its officer, owners, employees and agents, its attorneys-in-fact, its attorneys-at-law, and all other persons having possession, care, custody or control of any documents, knowledge or information of or on behalf of said Defendant. E "Pollutant" shall mean hazardous, toxic environmental pollutants, toxins, wastes, materials, substances and contaminants. G. Whenever you are asked to "identify" an oral communication, the following information should be given as to each oral communication of which you are aware, whether or not you or others were present or participated therein; (1) The means of communication (e.g., telephone, personal conversation, etc.); (2) Where it took place; (3) Its date; (4) The names, addresses, employers and positions (a) of all persons who participated in the communication; and (b) of all other persons who were present during or who overheard that communication; (5) The substance of who said what to whom _and the order in which it was said; and (6) Whether that communication or any part thereof is recorded, described or referred to in any document (however informal) and, if so, an identification of such document in the manner indicated above. H. If you claim that the subject matter of a document or oral communication is privileged, you need not set forth the brief statement of the subject matter of the document, or the substance of the oral communication called for above. You shall, however, otherwise "identify" such document or oral communication and shall state each ground on which you claim that such document or oral communication is privileged. 1. Whenever you are asked to "identify" a person, the following information should be given: (1) The name, present address and present employer and position of the person; and (2) Whether the person has given related testimony by way of deposition or otherwise in any proceeding and/or whether that person has given a statement whether oral, written, or otherwise, and if so, the title and nature of any such proceeding, the date of the testimony, whether you have a copy of the transcript thereof, the name of the person to whom the statement was given, where the statement is presently located if written or otherwise transcribed, and the present location of such transcript or statement if not in your possession. SAIDIS, FLOWER & LINDSAY Attorneys for the Plaintiff Date: T-10-U1 By an E. eynosa Saidis, Flower & Lindsay 2109 Market Street Camp Hill, PA 17011 (717) 737-3405 I.D. 480440 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC. Plaintiff No. 07-135 V. GVH (CARLISLE), L.P., Defendant Civil Action - Law PLAINTIFF DAITPHTN OR, C'OMPANV, TNC.'ORPORATF,D'S FTRST SFT OF INTERROGATORIES ADDRESSED TO DEFENDANT GVH (CART ,ISI T), T --P- DAUPHIN OIL COMPANY, INC, propounds the following Interrogatories to GVH (CARLISLE), L.P., which must be answered within thirty (30) days of service hereof. 1. Identify all persons supplying information concerning the Answers to these Interrogatories. ANSWER: 2. Please state the Defendant's exact name and identify any and all subsidiaries or parent entities. ANSWER: 3. Please state the environmental remediation that the Defendant alleges in paragraphs 15 (a) and (b) of its New Matter that the Plaintiff failed and/or refused to complete or perform. ANSWER: 4. Please state the dates on which the Defendant requested the Plaintiff to complete the environmental remediation referred to in the foregoing Interrogatory. (a) For each instance, please identify the individual responsible for the request and identify the individual to whom the request was made. (b) Please identify the means by which the request was made. ANSWER: 5. Please state the environmental remediation that the Defendant is alleged to have completed on the Premises. (a) Identify all individuals, contractors and/or subcontractors that performed the environmental remediation referred to in paragraph 15(a) and (b) of the Defendant's New Matter; (b) State the work performed by each contractor and/or subcontractor; and (c) Identify all documents related to any work discussed in this Interrogatory. ANSWER: 6. Identify the documentation that the Defendant alleges that the Plaintiff failed to produce as alleged in paragraph 15 (c) of the Defendant's New Matter. ANSWER: 7. Identify all costs associated with the Defendant's environmental remediation of the site and identify all documents supporting these costs. ANSWER: S. Identify the hazardous, toxic environmental pollutants, toxins, wastes, materials, substances and contaminants (hereinafter referred to as "Pollutants") discovered between September 25, 2002 and December 15, 2004 as asserted in Defendant's Counter-Claim at paragraph 30. (a) Identify the individual that discovered each Pollutant (b) Identify when each pollutant was allegedly discovered; (c) Identify and describe the work that had to be performed after the discovery of each pollutants mentioned in this interrogatory, (d) Identify the contractor and/or subcontractor that performed the work related to these pollutants; (e) Identify all documents that relate to the Defendant's response in this Interrogatory; ANSWER: 9. Identify the specific Pollutant(s) that the Defendant asserts in paragraph 32 of its Counter-Claim that were not discovered or identified by Plaintiff's Engineers. (a) Identify the individual that discovered each Pollutant (b) Identify when each pollutant was allegedly discovered; (c) Identify and describe the work that had to be performed after the discovery of each pollutants mentioned in this interrogatory; (d) Identify the contractor and/or subcontractor that performed the work related to these pollutants; (e) Identify all documents that relate to the Defendant's response in this Interrogatory; ANSWER: 10. Identify the other Pollutants discovered by the Defendant's contractor and/or subcontractor as asserted at paragraph 38 of the Defendant's Counter-Claim. (a) Identify the individual that discovered each Pollutant (b) Identify when each pollutant was allegedly discovered; (c) Identify and describe the work that had to be performed after the discovery of each pollutants mentioned in this interrogatory; (d) Identify the contractor and/or subcontractor that performed the work related to these pollutants; (e) Identify all documents that relate to the Defendant's response in this Interrogatory; ANSWER: 11. "Expert Witnesses". Identify each expert you intend to call as a witness at the trial of this matter, and for each expert state: (a) The subject matter about which the expert is expected to testify; and (b) The substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (You may file as your answer to this interrogatory the report of the expert or have the interrogatory answered by your expert); (c) If the expert is employed and/or self-employed, identify the employer and the nature of employment; (d) Identify all documents or materials submitted to each expert in connection with the preparation of his/her testimony. (e) The qualifications of each expert, listing schools attended, years of attendance, degrees received, experience and any particular field of specialization or expertise, all publications authored, including the title of the work and the book in which it was printed, giving the date of publication or produce a copy of the most recent curriculum vitae of any such expert. (f) Identify the caption of any case in which the expert has previously testified, and the Court in which such case was heard. ANSWER: 12. Identify each individual that you intend to call as a witness at the trial of this matter and provide a summary of their expected testimony. ANSWER: 13. Identify all documents or other objects that you intend to introduce into evidence as Exhibits at trial on this matter. ANSWER: 14. If you intend to use any admissions of a party at trial, identify such admissions. ANSWER: SA DIS, FLOWER & LINDSAY Attorneys for Plaintiff Date: By Saidis, Flowdr & Lindsay 2109 Market Street Camp Hill, PA 17011 (717) 737-3405 I.D. #80440 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC. Plaintiff No. 07-135 V. GVH (CARLISLE), L.P., Defendant Civil Action - Law CERTIFICATE OF SERVICE AND NOW, August 10, 2007, I, Dean E. Reynosa, Esquire, hereby certify that I did serve a true and correct copy of the foregoing Plaintiffs First Request for Interrogatories upon the following counsel of record by depositing, or causing to be deposited, via first class mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Kenneth W. Lee, Esq. Tucker Arenberg, P.C. 111 North Front Street P. O. Box 889 Harrisburg, PA 17108 Saidis, Flower & Lindsay JOHN E. SLIKE ROBERT C. SAIDIS JAMES D. FLOWER, JR CAROL J. LINDSAY JOHN B. LAMPI MICHAEL L. SOLOMON GEORGE F. dOUGLAS, III DEAN E. REYNOSA THOMAS E. FLOWER MARYLOU MATAS SUZANNE C. HIXENBAUGH LAW OFFICES SAIDIS, FLOWER & LINDSAY A PROFESSIONAL CORPORATION 2109 MARKET STREET CAMP HILL, PENNSYLVANIA 17011 TELEPHONE: (717) 737-3405 - FACSIMILE: (717) 737-3407 EMAIL: attorney@sfl-law.com www.sfl-law.com October 4, 2007 Kenneth W. Lee, Esq. Tucker Arensberg, P.C. 111 North Front Street P. O. Box 889 Harrisburg, PA 17108 RE: Dauphin Oil Company, Inc. v. GVH (Carlisle), L.P. No. 07-135 Civil Action Dear Attorney Lee: CARLISLE OFFICE: 26 WEST HIGH STREET CARLISLE, PA 17013 TELEPHONE: (717)243-6222 FACSIMILE: (717)243-6486 REPLY TO CAMP HILL Please advise as to when we could expect responses to our outstanding Discovery Request forwarded to you on August 10, 2007. I look forward to hearing from you. Very truly yours, SAIDIS, FLOWER & LINDSAY DER/yms cc: Client C JOHN E. SLIKE ROBERT C. SAIDIS JAMES D. FLOWER, JR CAROL J. LINDSAY JOHN B. LAMPI MICHAEL L. SOLOMON GEORGE F. DOUGLAS, III DEAN E. REYNOSA THOMAS E. FLOWER MARYLOU MATAS SUZANNE C. HIXENBAUGH LAW OFFICES SAIDIS, FLOWER & LINDSAY A PROFESSIONAL CORPORATION 2109 MARKET STREET CAMP HILL, PENNSYLVANIA 17011 TELEPHONE: (717) 737-3405 - FACSIMILE: (717) 737-3407 EMAIL: attorney@sfl-Iaw.com www.sf]-law.com December 10, 2007 Kenneth W. Lee, Esq. Tucker Arensberg, P.C. 111 North Front Street P. 0. Box 889 Harrisburg, PA 17108 RE: Dauphin Oil Company, Inc. v. GVH (Carlisle), L.P. No. 07-135 Civil Action Dear Attorney Lee: CARLISLE OFFICE: 26 WEST HIGH STREET CARLISLE, PA 17013 TELEPHONE: (717)243-6222 FACSIMILE: (717)243-6486 REPLY TO CAMP FALL I last wrote to you on October 4, 2007, concerning the outstanding discovery requests we had forwarded to you on August 10, 2007. When we last spoke. in early November you had indicated that we could expect responses in the near future. I would hope to avoid the filing of a motion to compel your client's response. I look forward to hearing from you. Very truly yours, SAIDISS FLOWER & LINDSAY Dean DER/yms cc: Client LAW OFFICES- JOHN E. SLIKE ROBERT C. SAIDIS JAMES D. FLOWER, JR CAROL J: LINDSAY JOHN B. LAMPI MICHAEL L. SOLOMON GEORGE F. DOUGLAS, IN DEAN E. REYNOSA THOMAS E. FLOWER MARYLOU MATAS SUZANNE C. HIXENBAUGH SAIDIS, FLOWER & LINDSAY A PROFESSIONAL CORPORATION 2109 MARKET STREET CAMP HILL, PENNSYLVANIA 17011 TELEPHONE: (717) 737-3405 - FACSIMILE: (717) 737-3407 EMAIL: attomey@sfl-law.com www.sfl-law.com January 4, 2008 Kenneth W. Lee, Esq. Tucker Arensberg, P.C. 111 North Front Street P. 0. Box 889 Harrisburg, PA 17108 RE: Dauphin Oil Company, Inc. v. GVH (Carlisle), L.P. No. 07-135 Civil Action Dear Attorney Lee: CARLISLE OFFICE: 26 WEST HIGH STREET CARLISLE, PA 17013 TELEPHONE: (717)243-6222 FACSIMILE: (717)243-6486 REPLY TO CAMP HILL FIE CIL' As we discussed today, we can expect to receive your client's responses to our Discovery request no later than the end of January. Should you have any questions, please do not hesitate to contact me. Very truly yours, SAIDIS, FLOWER & LINDSAY DER/yms Cc: client IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC., : CIVIL DIVISION Plaintiff, : No.: 07-135 V. GVH (CARLISLE), L.P., Defendants. DEFENDANT'S REPLY TO PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND NOW, comes GVH (Carlisle), L.P., by and through its attorneys, Tucker Arensberg, P.C., who serves this Defendant's Reply to Plaintiffs First Request for Production of Documents, and in support thereof states: 1. Defendant shall produce all documents related to the subject project and in its possession at a date, day, time and location mutually convenient to the parties' counsel. 2. Defendant objects to the production of any documents which are subject to any privilege recognized by the law of the Commonwealth of Pennsylvania. 3. As to the documents requested in paragraph 1 of Plaintiffs First Request for Production of Documents, defendant, GVH (Carlisle), L.P. (hereinafter "GVH"), refers plaintiff to the letter dated January 9, 2007, from Kenneth W. Lee to Robert Saidis, including the exhibits therewith. By way of further response, GVH incorporates the paragraphs numbered 1 and 2 of this Reply as though fully set forth at length. - 1 - 4. As to the documents requested in paragraph 2 of Plaintiffs First Request for Production of Documents, defendant, GVH (Carlisle), L.P. (hereinafter "GVH"), refers plaintiff to the letter dated January 9, 2007, from Kenneth W. Lee to Robert Saidis, including the exhibits therewith. By way of further response, GVH incorporates the paragraphs numbered 1 and 2 of this Reply as though fully set forth at length. 5. As to the documents requested in paragraph 3 of Plaintiffs First Request for Production of Documents, defendant, GVH (Carlisle), L.P. (hereinafter "GVH"), refers plaintiff to the letter dated January 9, 2007, from Kenneth W. Lee to Robert Saidis, including the exhibits therewith. By way of further response, GVH incorporates the paragraphs numbered 1 and 2 of this Reply as though fully set forth at length. 6. As to the documents requested in paragraph 4 of Plaintiffs First Request for Production of Documents, GVH objects to this Request as being overly broad, vague, burdensome and ambiguous. By way of further response, GVH incorporates paragraph 1 of this Reply as though fully set forth at length. 7. As to the documents requested in paragraph 5 of Plaintiffs First Request for Production of Documents, GVH objects to this Request in that discovery has not been completed and GVH has not determined which documents it intends to rely upon or introduce at the trial of this litigation. 8. As to the documents requested in paragraphs 6, 7 and 8 of Plaintiffs First Request for Production of Documents, GVH incorporates paragraph 1 of this Reply as though fully set forth at length. -2- 9. As to the documents requested in paragraph 9 of Plaintiffs First Request for Production of Documents, defendant, GVH (Carlisle), L.P. (hereinafter "GVH"), refers plaintiff to the letter dated January 9, 2007, from Kenneth W. Lee to Robert Saidis, including the exhibits therewith. By way of further response, GVH incorporates the paragraphs numbered 1 and 2 of this Reply as though fully set forth at length. TU ER ARENSBERG, P.C. Kenneth W. Lee PA I.D. No. 50016 Christopher E. Fisher PA I.D. No. 201395 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: 717-234-4121 Facsimile: 717-232-6802 Counsel for Defendant, 98890.1 (019264 - 123964) GVH (Carlisle), L.P. -3- CERTIFICATE OF SERVICE AND NOW, this ls'r day of February, 2008, I, Kenneth W. Lee, Esquire, for the law firm of Tucker Arensberg, P.C., attorneys for Defendant, hereby certify that I have this day served the foregoing Defendant's Reply to Plaintiffs First Request for Production of Documents, by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania and via facsimile, addressed as follows: Dean E. Reynosa, Esquire Saidis, Flower & Lindsay, P.C. 2109 Market Street Camp Hill, PA 17011 Fax No.: 717-737-3407 98890.1 (019264 - 123964) 4 V Kenneth W. Lee -4- n ^? Q 79 DAUPHIN OIL COMPANY, INC., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. GVH (CARLISLE), L.P., DEFENDANT NO. 07-0135 CIVIL ORDER OF COURT AND NOW, this 12th day of February, 2008, upon consideration of the Motion to Compel filed by the Plaintiff, IT IS HEREBY ORDERED AND DIRECTED that a status conference will be held on Friday, March 14, 2008, at 11:00 a.m. in chambers of Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, -' Dean E. Reynosa, Esquire Attorney for Plaintiff .Kenneth W. Lee, Esquire Attorney for Defendant bas M. L. Ebert, Jr., J. MaAcc O'C-jr a?iv?o8 no z £ •8 WV ? 1 93A 8DO1 fit cif `t i1 ? :,lH . ?o --(3TId DAUPHIN OIL COMPANY, INC., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. GVH (CARLISLE), L.P., DEFENDANT NO. 07-0135 CIVIL ORDER OF COURT AND NOW, this 14th day of March, 2008, upon consideration of the Motion to Compel filed by the Plaintiff, after status conference with counsel IT IS HEREBY ORDERED AND DIRECTED that Defendant's Counsel shall produce the documents requested by Plaintiff not later than Monday, March 24, 2008. This matter is agreed upon by both parties. By the Court, .45'e'-an E. Reynosa, Esquire Attorney for Plaintiff enneth W. Lee, Esquire Attorney for Defendant bas y M. L. Ebert, Jr., J. ono 8 S .z d ?t ! NVW gooz At#VIGM`Di? ? kC;"U'd 3KI J0 90 ?110--0_37'f!j 20,11 OCT 13 AM /I: IN THE COURT OF COMMON PLEAS oRtISERLANp CUMBERLAND COUNTY, PENNSYLVANI?!E ENDS YLV COUNTY CIVIL DIVISION ANIA DAUPHIN OIL COMPANY, INC., Plaintiff, : No.: 07-135 v. DEFENDANT'S NOTICE/STATEMENT OF INTENT TO PROCEED GVH (CARLISLE), L.P., Filed on Behalf of: Defendants. Defendant, GVH (Carlisle), L.P. Counsel of Record for this Party: Kenneth W. Lee PA I.D. No. 50016 TUCKER ARENSBERG, P.C. 2 Lemoyne Drive Suite 200 Lemoyne, PA 17043 Telephone: 717-234-4121 Facsimile: 717-232-6802 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC., : CIVIL DIVISION Plaintiff, No.: 07-135 V. GVH (CARLISLE), L.P., Defendant. DEFENDANT'S NOTICE/STATEMENT OF INTENTION TO PROCEED TO: The Court and David D. Buell, Prothonotary: Defendant, GVH (Carlisle), L.P., intends to proceed with the above- captioned matter. TUCKER ARENSBERG, P.C. Kenneth W. Lee PA I.D. No. 50016 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: 717-234-4121 Facsimile: 717-232-6802 Email: klee@tuckerlaw.com CERTIFICATE OF SERVICE AND NOW, this IZ41- day of October 12, 2011, I, Kenneth W. Lee, Esquire, for the law firm of Tucker Arensberg, P.C., attorneys for Defendant, hereby certify that I have this day served the foregoing DEFENDANT'S NOTICE/STATEMENT OF INTENTION TO PROCEED, by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Robert C. Saidis, Esquire Dean E. Reynosa, Esquire Saidis, Flower & Lindsay, P.C. 26 West High Street Carlisle, PA 17013 Robert C. Saidis, Esquire Dean E. Reynosa, Esquire Saidis, Flower & Lindsay, P.C. 2109 Market Street Camp Hill, PA 17011 Kenneth W. Lee r? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC. Plaintiff V. GVH (CARLISLE), L.P., Defendant No. 07-135 rrjc„ r-- -c Civil Action - Law C M C'7 -o ry 1 V rT'i -ry s PETITION TO WITHDRAW AS COUNSEL AND NOW come Petitioners Dean E. Reynosa and Saidis, Sullivan & Rogers and hereby state as follows in support of said Petition to Withdraw as Counsel: 1. Plaintiff Dauphin Oil Company, Inc., through its representative James Rutledge, sought representation from Petitioner's former law firm, Saidis, Flower & Lindsay. 2. Petitioners' law firm entered its appearance, through Robert Saidis, Esquire, and filed a Complaint on Plaintiff's behalf which is docketed at this number. 3. Petitioners continued to represent Plaintiff in this matter until James Rutledge discharged Petitioners in 2008. 4. Petitioners acknowledged Plaintiff's termination by letter dated June 23, 2008. 5. Plaintiff, through James Rutledge, sought legal advice from Attorney William Duncan, yet Attorney Duncan has not entered his appearance. 6. Plaintiffs officers' address, as maintained by the Pennsylvania Department of State, is 815 Newville Rd., Carlisle, PA 17013. 7. Petitioners wish to withdraw their appearance in this matter since Plaintiff terminated their services. 8. Defendant's attorney Kenneth Lee, Esquire, does not oppose this request to withdraw as counsel. Wherefore, Petitioners Dean E. Reynosa, Esquire and Saidis, Sullivan & Rogers request permission to withdraw as counsel of record. Additionally, Petitioners request permission to withdraw the appearances of Robert Saidis, Esquire, and Saidis, Flower & Lindsay. Dated: I Respectfully submitted, SAIDIS, SULLIVAN & ROGERS squire Dean E. Reynos %1440 Attorney I.D. No. 26 West High Street' Carlisle, PA 17013 (717) 243-6222 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC. Plaintiff No. 07-135 V. GVH (CARLISLE), L.P., Defendant Civil Action - Law CERTIFICATE OF SERVICE I hereby certify that on this / 5? day of De . , 2011, a true and correct copy of the foregoing Petition to Withdraw as Counsel was served upon the party listed below, via First Class Mail, postage prepaid, addressed as follows: Mr. James Rutledge 815 Newville Rd. Carlisle, PA 17013 Kenneth W. Lee, Esq. Tucker Arensberg, P.C. 2 Lemoyne Drive Suite 200 Lemoyne, PA 17043 Counsel for Defendant SAIDIS, SULLIVAN & ROGERS Dea E. Reynosa, Esquire Attorney Id. 80440 26 West High Street Carlisle, PA 17013 717-243-6222 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC Plaintiff V. No. 07-135 n c -o ? rnm .r N rn N W c? GVH (CARLISLE), L.P., Defendant Civil Action - Law Petition to Make Rule Absoulte r _ "'r i And now comes Petitioner Dean E. Reynosa, Esquire, and the law firm of Saidis, Sullivan & Rogers, and files this Petition to Make Rule Absolute and in support hereof avers as follows- 1 . Your Petitioner is Dean E. Reynosa, Esquire, and the law firm of Saidis, Sullivan & Rogers, counsel of record for Plaintiff Dauphin Oil Company, Inc. 2. Petitioner filed a Petition to Withdraw as Counsel December 1, 2011. 3. The Honorable Albert H. Masland entered a rule on December 6, 2011, directing Plaintiff to show cause why Petitioner should not be permitted to withdraw as counsel. See Rule to Show Cause dated November 22, 2011, attached hereto as Exhibit A. 4. Plaintiff was to file a response within fourteen (14) days of service of the rule. Id. 5. Petitioner served the rule upon Plaintiffs representative by first-class mail on December 8, 2011. See Certificate of Service attached hereto as Exhibit B. 6. Petitioner served Plaintiffs representative at two separate addresses. 7. Correspondence sent to 815 Newville Road, Carlisle, PA 17013 was returned to Petitioner as "Return to Sender Not Deliverable as Addressed Unable to Forward." ">ee copies of correspondence attached hereto as Exhibit C. 8. Correspondence sent to Mr. Rutledge's home address of 3057 Grasmere Avenue, Pittsburgh, PA 15216 has not been returned. 9. To date, Plaintiff has not filed any answer to the rule to show cause. 10. Fourteen days have since elapsed from the date of service of the rule to show cause. 11. Petitioner requests that this Honorable Court make the rule absolute and permit Petitioner and the law firm of Saidis, Sullivan & Rogers to withdraw as counsel in this matter. 12. Petitioner had previously received an e-mail confirmation from Defendant's counsel Kenneth W. Lee, Esq., on November 16, 2011, wherein he stated that he does not oppose Petitioner's request to withdraw as counsel. Wherefore, Petitioner requests that this Honorable Court make the rule absolute and enter an order permitting Dean E. Reynosa, Esquire, and the law firm of Saidis, Sullivan & Rogers to withdraw as counsel for Defendant in this action. Respectfully submitted, SAIDIS, SULLIVAN & ROGERS 4._ Date: -E. Reynosa, Esquire Attorney I.D. #80440 26 West High Street Carlisle, PA 17013 (717) 243-6222 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC Plaintiff No. 07-135 V. 4 Civil Action - Law G'VH (CARLISLE), L.P., Defendant RULE TO SHOW CAUSE r, And nsw this (off' day of beeemhe-r 20 upon consideration of Petitioners Fetition to Withdraw as Counsel, It is hereby ordered that a rule is issued on Plaintiff to show cause as to why the relief requested in said petition should not be granted. This rule is made returnable ___14_ days after service upon Plaintiff. Petitioners shall file a certificate of service evidencing service of this rule upon Plaintiff. By the Court. i?lbeA*lq.Ad A DAUPHIN OIL COMPANY, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA is V. NO. 07-135 GVH (CARLISLE), L.P., ; -" , Defendant CIVIL ACTION - LAW7151- AFFIDAVIT OF SERVICE I hereby certify that on this 8" day of December, 2011, a true and correct copy of the December 6 Rule to Show Cause was served upon the party listed below, via First Class Mail postage prepaid, addressed as follows: James Rutledge 3057 Grasmere Avenue Pittsburgh, PA 15216 James Rutledge 815 Newville Road Carlisle, PA 17013 Kenneth W. Lee, Esquire Tucker Arensberg, P.C. 2 Lemoyne Drive, Suite 200 Lemoyne. PA 17043 SAIDIS, SULLIVAN & ROGERS Law Offices of .qn; r]; Q Sullivan k Rogers 6 Wesr 1-ligh Soee' ',arlisle. P/t 17ol' D.aan E. Reynosa, Esquire Att o rn e-y_ 10,_8.044"0 26 West High Street Carlisle, PA 17013 717-243-6222 e'Y _ ? ` P^ Ys - Qs ar„W. ti. y T ,. i.? ,... i?Url XM - s- w- k C) CO m -' . C/)' Z Ljj) P `[ cn o ° (D v a. w Q cc) T c'? e. 0 C; N ?: n [f. J (n 21 v r.. s v, y 2 71 r ,,?•• n x ^a a, a-•' ti:'~ ?sj ? / L CD to h1 o ? k.. ,.?»:..... Uri i T, eP? - a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC. Plaintiff No. 07-135 V. GVH (CARLISLE), L.P., Defendant Civil Action - Law CERTIFICATE OF SERVICE I hereby certify that on this day of December, 2011, a true and correct copy of the foregoing Petition to Make Rule Absolute was served upon the parties listed below, via First Class Mail, postage prepaid, addressed as follows: Mr. James Rutledge 815 Newville Rd. Carlisle, PA 17013 Mr. James Rutledge 3057 Grasmere Avenue Pittsburgh, PA 15216 Kenneth W. Lee, Esq. Tucker Arensberg, P.C. 2 Lemoyne Drive Suite 200 Lemoyne, PA 17043 Counsel for Defendant SAIDIS, SULLIVAN & ROGERS Deals E. Reynosa, Esquire Attorney Id. 80440 26 West High Street Carlisle, PA 17013 717-243-6222 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC. Plaintiff No. 07-135 V. Civil Action - Law GVH (CARLISLE), L.P., Defendant ORDER OF COURT And now this ? 0day of -? , 20,6g, upon consideration of Petitioners' Petition to Make Rule Absolute, It is hereby ordered that Petitioner Dean E. Reynosa, Esquire, and the law firm of Saidis, Sullivan & Rogers are permitted to withdraw as counsel for Plaintiff in this matter. Plaintiff shall be served through its representative James Rutledge at both 3057 Grasmere Avenue, Pittsburgh, PA 15216 and 815 Newville, Rd., Carlisle, PA 17013. By the Court, Albert H. Masland, J. / ,e;) n 44 0. Lee, Esf b62 ,+ L 4e y no.Sa ? 61r;--s AU .led J/SSha r? r - ? x mF CD ?n ra ; . CD CD )e?el . , IN THE COURT OF COMMON PLEAS OF 'E P'O?I CUMBERLAND COUNTY, PENNSYLVANIA 2012 JAN -g PM T 21 DAUPHIN OIL COMPANY, INC. CUMBERLAND couNTY Plaintiff No. 07-135 PENNSYLVANIA V. Civil Action - Law GVH (CARLISLE), L.P., Defendant Respectfully Submitted, PRAECIPE TO WITHDRAW APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance and the appearance of Saidis, Sullivan & Rogers on behalf of Plaintiff Dauphin Oil Company, Inc., in the above-captioned matter. Dated: 1 SAI ERS Attorney ID No. 80440 26 West High Street Carlisle, PA 17013 (717) 243-6222 . . { l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAUPHIN OIL COMPANY, INC. Plaintiff No. 07-135 V. GVH (CARLISLE), L.P., Defendant Civil Action - Law CERTIFICATE OF SERVICE I hereby certify that on this 9Lday of January, 2012, a true and correct copy of the -,oregoing Praecipe to Withdraw as Counsel was served upon the parties listed below, via First Class Mail, postage prepaid, addressed as follows: Mr. James Rutledge 815 Newville Rd. Carlisle, PA 17013 Mr. James Rutledge 3057 Grasmere Avenue Pittsburgh, PA 15216 Kenneth W. Lee, Esq. Tucker Arensberg, P.C. 2 Lemoyne Drive Suite 200 Lemoyne, PA 17043 Counsel for Defendant SAIDIS, SULLIVAN & ROGERS Dean eta, Esqaire Attor y Id. 80440 26 est High Street Carlisle, PA 17013 717-243-6222