HomeMy WebLinkAbout02-3298DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
COMPLAINT
NOTICE
You have been sued in Court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and Notice
are served, by entering a written appearance personally, or by attorney, and filing in writing with
the Court your defenses or objections to the claims set forth against you. You are warned that if
you fail to do so, the case may proceed without you, and a judgment may be entered against you
by the Court without further notice for any money claimed in the Complaint or for any other
claim or relief requested by the Plaintiff. You may lose money or other fights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
(800) 990-9108
AND NOW, comes the Plaintiff, Dixon Properties, Inc., by its attorneys, Buzgon Davis
Law Offices, and files the within Complaint, averring as follows:
1. Plaintiff, Dixon Properties, Inc., is a Pennsylvania corporation with a principal place
of business located at 328 North Fourteenth Street, Lebanon, Lebanon County, Pennsylvania,
17046.
2. Defendant, Napa Transportation, Inc., is a Pennsylvania corporation with a principal
place of business located at 4800 Trindle Road, Mechanicsburg, Cumberland County,
Pennsylvania, 17055.
3. Defendant, Ronaid Aecomando, is an adult individual with a residence located at
1216 Fmitville Pike, Lancaster, Lancaster County, Pennsylvania.
4. Defendant, Debra H. Accomando, is an adult individual with a residence located at
1216 Fruitville Pike, Lancaster, Lancaster County, Pennsylvania.
5. Defendant, Exel Logistics, Inc., is a Massachusetts corporation registered to do
business in the Commonwealth of Pennsylvania with an address of 260 Salem Church Road,
Meehanicsburg, Cumberland County, Pennsylvania, 17050.
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6. On July 1, 1997, Plaintiff entered into a Lease Agreement with Defendant, Napa
Transportation, Inc.; a true and correct copy of the Lease, together with an Addendum, are
attached as Exhibit "A".
7. As set forth in Exhibit "A", Defendants, Ronald Aceomando and Debm Aeeomando,
his wife, guaranteed the obligations of Defendant, Napa Transportation, Inc., in the Lease
Agreement.
8. After securing possession of the premises fi.om Plaintiff, Defendant, Napa
Transportation, Inc., entered into a Sublease for portions of the premises with Defendant, Exel
Logistics, Inc.
9. Plaimiff's lease with Defendant, Napa Transportation, Inc., was terminated effective
June 30, 2002.
10. Upon information and belief, Defendants have vacated the premises.
COUNT ONE - BREACH OF CONTRACT
Plaintiffv. NAPA Transportation, Inc.
11. The averments of paragraphs 1 through 10 are incorporated herein by reference as if
textually set forth at length.
12. Defendant, Napa Transportation, Inc., is in breach of its Lease Agreement with the
Plaintiff in that it:
(a) Failed to keep the fence on the premises in good repair;
(b) Allowed the fence to be damaged or fall into disrepair without fixing it;
(c) Failed to repair the fence before abandoning the premises;
(d) Left concrete block, materials and other debris to exist on the property;
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WHEREFORE, Plaintiff respectfully requests your Honorable Court to enter judgment in
its favor in an amount in excess of Twenty-Five Thousand Dollars ($25,000), plus interest and
costs of suit.
COUNT THREE - NEGLIGENCE
Plaintiff v. Napa Transportation, Inc.
17. The averments of paragraphs 1 through 14 are incorporated herein by reference as if
textually set forth at length.
18. The damage to the fencing and/or parking and driving surfaces was caused by the
negligence of Defendant, Napa Transportation, Inc., through its authorized agents and
employees, in that those individuals:
(a) Struck the fencing around the property with vehicles, causing damage to
the fencing;
(b) Struck the fencing with mechanized equipment or other devices that
damaged the fencing;
(e) Failed to properly maintain the fencing; and
(d) Drove vehicles in such a fashion as to cause damage to the parking and
driving surfaces.
19. Defendant's negligence caused damages to Plaintiff in the form of the expenses
associated with repair of the fencing, parking and driving surfaces.
WHEREFORE, Plaintiff respectfully requests your Honorable Court to enter judgment in
its favor in an amount in excess of Twenty-Five Thousand Dollars ($25,000), plus interest and
costs of suit.
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JUL-01-2002 M0N 09:44 ~M BUZGON DhVIS L~ 0?F~0ES F~M NO, 717 274 1752 P. 09
DIXON PROPERTIES, INC,,
Plaiatiff
VS.
NAPA TR.a2qSPORTATION, I)~C.,
RONALD ACCO~NDO.
DEBI~J~ H. ACCOM,~uNDO,/md
LOGISTICS. INC.,
Defendants
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION- LAW
NO.
wm-r C, TlON
I, FIL4.NCI~; j, BIXON, do hereby verity thru I am an authorized tepresen~tve of
Dixon Pmlm*des, Inc., the Plaintiff in the within action, and that the facts s~t forth i~ the
foregoing COMPLAINT are true and correct to the best of my personal knowledge or
information and Imli~ and that I am authorized to and make ibis Vefi_qe,,ation for and on its
Imhalf. I understand that fals~ statements her~in ar~ mad~ subj~t to the l:~nalti~s of 18
Pa.C.$.A. S~tlon 4904 relating to unswom falsifioation to authorities.
D./.~ PROPERTIES, 1NC.
DIXON PROPERTIES, 1NC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
IN THE COURT OF COMMON PLEAS OF
:
CUMBERLAND COUNTY, PENNSYLVANIA
:
: C1VIL ACTION - LAW
:
: NO.
Defendants
AFFIDAVIT OF SERVICE BY MAIL
COMMONWEALTH OF PENNSYLVANIA)
) SS:
COUNTY OF LEBANON )
I, MARYANN MOORE, an employee in the law firm of Buzgon Davis, 525
South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Plaintiff, being duly
sworn according to law, depose and say that I filed on July 10, 2002, in the Office of the
Prothonotary of Cumberland County, Pennsylvania, the original COMPLAINT and that I
mailed a copy by first class, regular mail to Leslie D. Jacobson, Esquire, 8150 Derry Street, Suite
A, Harrisburg, PA, 17111, Attorney for Defendants, Napa Transportation, Inc., Ronald
Ac¢omando and Debra H. Accomando.
(MA~AI~N ~VIOORE)
Sworn to and subscribed
befo/re me this 10th day
No~ P~blic ~ ~
~~I1,~
LEASE
DIXON PROPERTIES, INC., LANDLORD
TO
NAPA TRANSPORTATION, INC., TENANT
EXHIBIT "A~'
TABLE OF CONTENTS
Lease
Paragraph
Page No.
1. Premises
2. Term
3. Base Rent and Security Deposit
4. Renewal Options
5. Use of Premises
6. Tenant Build-Out
7. Mechanics' Liens
8. Condition of Premises
9. Assignment and Subletting
10. Access to Premises
11. Repairs and Maintenance and Utilities
12. Taxes
13. Surrender of Premises
14. Indemnification and Liability
15. Tenant Liability and Insurance
16. Fire or Casualty Insurance
17. Subordination and Attornment
! 8. Condemnation
19. Estoppel Certificates
20. Default and Remedies
21. Waiver
22. Quiet Enjoyment
23. Signs
24. Compliance with Legal Requirements
25. Environmental Matters
26. Payment of Tennnt's Obligations by Landlord
27. Landlord's Legal Expense
28. Net Lease
29. Successor
30. Recording
31. Governing Law
32. Separability
33. Captions
34. Gender
35. Notices
36. Jurisdiction
37. Brokers
38. Entire Agreement
3~fusal
2
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3
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6
6
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18
AGREEMENT OF LEASE
,'~ ~.' THIS AGREEMENT OF LEASE (this "Lease") is dated as of the / day of
; ./~.[t~ , 1997, between DIXON PROPERTIES, INC., a Pennsylvania business
c~ffpora~/c~n having an office at 328 North 14th Street, Lebanon, Pennsylvania 17046, (the
~,,andl6~l"), and NAPA TRANSPORTATION, INC., a Pennsylvania corporation having an
office at Box 145, Mechanicsburg, Pennsylvania, (the "Tenant"), and provides:
(a) Leased Premises. Pursuant to the terms and provisions of this
Lease, the Landlord hereby leases to the Tenant, and the Tenant hereby leases
from the Landlord, the Premises (as hereinafter defined). The term "Premises"
means the approximately 13 acre parcel and improvements, situate in the
Townships of Hampden and Silver Spring, Cumberland County, Pennsylvania,
known as 6370 Basehore Road, Mechanicsburg, Pennsylvania, described more
fully on Exhibit "A" attached hereto and made a part hereof.
2. Term.
~ (a) The term of this Lease and Tenant's obligation to pay rent hereunder
shall commence on the date of this Lease (the "Commencement Date") and shall
be for a period of five (5) years commencing on the Commencemem Date and
ending at midnight on the day immediately preceding the fifth (5th) year
anniversary of the Commencement Date (the "Expiration Date").
(b) Tenant's obligation to pay rent hereunder shall commence on the
Commencement Date.
3. Base Rent and Security DenosiL
(a) Tenant shall pay to Landlord at 328 North 14th Street, Lebanon,
Pennnylvania as rem for the initial five (5) year lease term Six Hundred Sixty
Thousand Dollars ($660,000.00) (the "Base Rent"). Said rent shall be payable
without right of setoff on the same date of each calendar month as the date of the
Commencement Date in sixty equal monthly installments of Eleven Thousand
Dollars ($11,000.00), in advance and without demand, beginning on the
Commencement Date.
Co) Tenant hereby covenants and agrees to pay the rent hereby reserved
as and when due, and also all sums of money, charges or other amounts required
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to be paid by the Tenant to the Landlord or to another person under this Lease,
which shall be "rent" in addition to the rem provided for herein. Non-payment
of additional rent when due shall constitute a default under this Lease to the same
extent, and shall entitle the Landlord to the same remedies, as non-payment of
rent.
4. ~,~2tZ~i_.Q. IZ~. The Tenant, provided it is not in default hereunder,
shall have the option to renew this Lease upon the same terms and conditions, except for the rent
as hereinafter set forth, for one additional term of five (5) years, upon giving written notice
thereof to Landlord at least nine (9) months prior to the expiration of the initial term of the
Lease.
The Base Rent payable by the Tenant during the renewal term shall be the
sum of Seven Hundred Twenty Thousand Dollars ($720,000.00), said rent to be paid without
right of setoff on the same date of each calendar month as the date of the Commencement Date
in sixty (60) equal monthly installments of Twelve Thousand Dollars ($12,000.00), in advance
and without demand, beginning on the f~rst day of any such renewal term.
5. ~ Tenant shall use and occupy the Premises only for
purposes of a general office, parking and storing tractors, trailers and equipment, and other
related uses. Tenant shatl not use or occupy the Premises for any other purpose or business
without prior written consent of Landlord.
6. ~. Tenant shall make no alterations, additions or improvements
to the Premises, without the prior written consent of Landlord. All such alterations, additions
or improvements shall be at Tenant's expense, shall be completed in accordance with all
applicable federal, state and municipal laws, and shall become a pan of the Premises when made
and shall remain upon and be surrendered with the Premises at the end of the term.
7. ~.I~. Tenant shall keep the Premises and the building free
from any liens arising out of work performed, materials furnished or obligations incurred by
Tenant. Notwithstanding the foregoing, if any mechanics' or other lien shall be filed against the
Premises purporting to be for labor or material furnished or to be furnished at the request of the
Tenant, then Tenant shall at its expense cause such lien to be discharged of record by payment,
bond or otherwise, within twenty (20) days after the filing thereof. If Tenant shall fail to cause
such lien to be discharged of record within such twenty-day period, Landlord may cause such
lien to be discharged by payment, bond or otherwise, without investigation as to the validity
thereof or as to any offsets or defenses thereto, and Tenant shall, upon demand, reimburse
Landlord for all amounts paid and costs incurred including attorneys' fees, in having such lien
discharged of record.
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8. Condition of Premises. Tenant acknowledges and agrees that there have
been no representations or warranties made by or on behalf of Landlord with respect to the
Premises or with respect to the suitability of the same for the conduct of Tenant's business. The
Tenant is taking the Premises in "as is" condition. The taking of possession of the Premises by
Tenant shall conclusively establish that the Premises were at such time in satisfacto~ condition,
order and repair.
9. Assimunent and Sublettine. Tenant shall not, either voluntarily or by
operation of law, assign, transfer, mortgage or otherwise encumber this Lease or sublet the
Premises or permit any part thereof to be used or occupied by anyone other than Tenant, without
the prior written consent of Landlord ia each instance which consent shall not be unreasonably
withheld. Tenant shall remain liable for the payment and performance of any assignee or
subtenant under this Lease. Any transfer of this Lease from Tenant by merger, consolidation
or liquidation, or any change ia ownership of a majority of its outstanding voting stock shall
constitute an assignment for the purpose of this Lease and shall require the prior written consent
of Landlord in each instance.
10. Access to Premi~i~. Landlord, its employees and agents shall have the right
to enter the Premises during normal business hours for the purpose of examining or inspecting
the same, showing the same to prospective purchasers and mortgagees, and making such
alterations, repairs, improvements or additions to the Prqmises as Landlord may deem necessary
or desirable. In the event of an emergency, Landlord may, at any time, enter by means of a
master key (or forcibly ia the event of an emergency) without liability to Tenant and without
such entry constituting an eviction of Tenant, termination of this Lease or a breach of Landlord's
warranty of Quiet Enjoyment.
11. Renairs and Maintenance a~d Utili~,i~n.
(a) Tenant shall keep the Premises ia good maintenance and repair at
the sole cost of Tenant. The Tennnt's repair and maintenance obligations shall
be all inclusive, including, without limitation, the parking lot, sidewalk, roof,
heating, air conditioning, plumbing and electrical systems, building exterior and
structural components, landscaping, window and door glass, and snow and ice
removal from parking areas, sidewalks and, if conditions warrant, the roof.
(b) The cost of all utilities furnished to the Premises, including,
without limitation, the cost of water, gas, electricity and sewerage, shall be paid
by the Tenant.
(c) Landlord shall not be liable by reason of any injury to person or
property or interference with Tenant's business arising from the Tenant making
any repairs, alterations, additions or improvements ia or to the Premises or to any
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appurtenances or equipmem therein. There shall be no abatement of rem because
of such repairs, alterations, additions or improvements.
12. Taxes. Tenant shall pay all real estate taxes imposed upon the Premises,
as and when they become due. Landlord shall provide Tenant with all real estate tax bills within
twenty (20) days of receipt. Tenant shall provide Landlord with receipts of tax payments within
fifteen (15) days following the due date. Tenant may, at Tenant's sole cost, contest any real
estate tax assessment imposed upon the Premises.
13. Surrender of Premises. At the end of the term of this Lease, Tenant
shall surrender the Premises to Landlord, together with all alterations, additions and
improvements thereto, in broom clean condition and in good order and repair except for ordinary
wear and tear and damage for which Tenant is not obligated to make repairs under this Lease.
If not then in default, Tenant shall have the right at the end of the term hereof to remove any
equipment, furniture, trade fixtures or other personal property placed in the Premises by Tenant,
provided that Tenant promptly repairs any damage to the Premises caused by such removal.
14. Indemnification and Liability.
(a) Tenant shall indemnify, hold harmless and defend Landlord from and
against any and all costs, expenses (including reasonable counsel fees), liabilities.
losses, damages, suits, actions, fines, penalties, claims or demands of any kind
and asserted by or on behalf of any person or governmental authority, arising out
of or in any way connected with, and Landlord shall not be liable to Tenant on
account of:
(i) any failure by Tenant to perform any of the
agreements, terms, covenants or conditions of this Lease required
to be performed by Tenant;
(ii) any failure by Tenant to comply with any statutes,
ordinances, regulations or orders Of any governmental authority
applicable to Tenant; or
(iii) any accident, death or personal injury, or damage
to or loss or theft of property, which shall occur in or about the
Premises, except as the same may be caused by the negligence of
Landlord, its employees or agents.
(b) Tenant shall be relieved of its obligation to indemnify Landlord
under Paragraph 14(a)(iii) above to the extent that, and so long as, Tenant
provides at Tenant's cost, and maintains in force, insurance for the benefit of the
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Landlord, enforceable by Landlord as a named insured, with a carrier and in
amounts reasonably satisfactory to Landlord against the costs, expenses,
liabilities, losses and damages which may arise out of the occurrences referred
to in Paragraph 14(a)(iii) above; provided, however, Tenant's insurance policies
shall not provide coverage for any costs, expenses, liabilities, losses or damages
resulting from the negligence of the Landlord, its employees or agents.
15. Tenant Liability and Insurance.
(a) Landlord shall not be liable for any damage done to or loss of
Tenant's personal property or damage or loss suffered by the business or
occupation of Tenant arising from any acts or neglect of other persons or from
bursting, overflowing or leaking of water or sewe[ pipes or from the heating or
plumbing fixtures or from electric wires, or from gas or odors, except as may be
caused by the negligence of Landlord, its employees or agents.
Co) Tenant shall maintain General Commemial Liability and property
damage insurance during the initial Lease term and any renewal period in the
amount of not less than Five Million ($5,000,000) Dollars combined single limit
for each occurrence and in the aggregate for bodily injury, death and property
damage. Landlord shall be named a~ a~i additional insured oa all policies of
insurance relating to the Premises and the policies shall provide Landlord with not
less than thirty (30) days' notice prior to cancellation or nonrenewal. Tenant
shall provide Landlord with certificates of such insurance policies and any
renewals thereof, such certificates to be delivered to Landlord on the
Commencement Date and each renewal period thereafter of the term of the Lease.
16. Fire or Casualty Insur.an¢~.
(a) Tenant shall pay to Landlord the cost of Landlord maintainin~ fire
insurance with ali risk, broad form type coverage, including fa'e, extended
coverage, vandalism and malicious mischief, collapse, water damage, weight of
ice, sleet or snow and sprinkler leakage, on the improvements located on the
Premises, with solvent and responsible companies authorized to do business in the
Commonwealth of Pennsylvania in an amount equal to one hundred percent
(100%) of the replacement cost of said improvements. Tenant shall pay the cost
of such insurance within fifteen (15) business days of receipt of an invoice or
other statement from the insurance agent or company for such cost.
Co) If the Premises are damaged or deslxoyed by fire or other casualty, the
Premises shall be repaired or rebuilt by Landlord, to the extent of insurance
proceed.~ available therefor, and the rent until such repairs shall be made shall be
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fairly and justly apportioned from the date of such fire or other casualty according
to the part of the Premises which is usable by Tenant. If the Premises are
damaged so as to be untenantable or destroyed, the rent shall abate until the
Premises are rebuilt. Landlord agrees to repair or rebuild within a reasonable
period of time after such casualty occurs. However, if reasonable estimates of the
time for such reparation or rebuilding exceeds six months, then either the
Landlord or the Tenant may terminate this Lease. No portion of insurance
proceeds necessary to replace, restore or repair the Premises shall be utilized to
repair, restore or replace Tenant's fixtures, or furniture, equipment or other
(c) Tenant shall be solely responsible for any damage caused by f'tre,
vandalism, malicious mischief, collapse, water damage, weight of ice, sleet or
snow, sprinkler leakage and all other hazards or casualty to the Tenant's personal
property, equipment, furniture and other contents located in and/or Tenant's
improvements to the Premises, unless caused by Landlord's negligence or willful
misconduct.
17. Subordination and Attornment. Tenant accepts this Lease subject and
subordinate to any mortgage or mortgages (including, without limitations, the notes or other
obligations secured thereby and any and all renaw~ls, m~xlifications, consolidations, replacement~
or extensions of any such mortgages or the notes or other obligations secured thereby) now in
existence or hereinafter made from time to time, affecting the title to the Premises or the
building or the real property on which the building is located (or any part thereof) or Landlord's
interest therein. Tenant also accepts this Lease subject and subordinate to all instruments in the
chain of fee title to the Premiss or the building or the real property on which the building is
located, including any and all renewals, modifications, consolidations, replacements or
extensions of such instruments. Tenant shall execute, acknowledge and deliver to the holder of
any such mortgage or to any of the parties to such insmmaents, at any time upon demand by
such holder or by any such party, any releases, certificates or other documents that may be
required by such holder or by any such party, for the purpose of evidencing the subordination
of this Lease to such mortgages or instruments or to any renewals, modifications, consolidations,
replacements or extensions thereof. In the event of a sale under any mortgage (or any note or
other obligation secured thereby) to which this Lease is subordinate, or a taking of possession
of the Premises by the mortgagee or other person acting for or through the mortgagee under any
mortgage to which this Lease is subordinate, then, and upon the happening of any such events,
Tenant shall attorn to and recognize as Landlord hereunder the party who, but for this Lease,
would be entitled to possession of the Premises.
18. ~. If the whole of the Premises shall be condemned or
taken either permanently or temporarily for any public or quasi-public use or purpose, under any
statute or by right of eminent domain, or by private purchase in lieu thereof, then in that event,
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the term of this Lease shall cease and terminate from the date of title vesting in such proceeding
or purchase and Tenant shall have no claim against Landlord for the value of any unexpired term
of said Lease, and shall release unto Landlord any such claim it may have against the
condenmor. In the event a portion only of the Premises or a portion of the building containing
same shall be so taken (even though the Premises may not have been affected by the taking of
some other portion of the building containing same), Landlord may elect to terminate this Lease
from the date of title vesting in such proceeding or purchase or Landlord may elect to repair and
restore, at its own expense, the portion not taken and thereafter the rent shall be reduced
proportionately to the portion of the Premises taken.
19. Estoonei Certificates. Tenant shall, at any time and from time to time,
within twenty (20) business days following written request from Landlord, execute, acknowledge
and deliver to Landlord a written statement certifying the date to which the rent reserved
hereunder has been paid, and certifying that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder, or specifying such defaults if any are claimed. Any
such statement may be relied upon by any prospective purchaser or mortgagee of all or any part
of the Premises or the building or real property on which the building is located. Tenant's
failure to deliver stroh statement withlrl said twenty-day period shall be conclusive upon ~reruant
that this Lease is ia full force and effect and modified, and that there are no uncured defaults
ia Landlord's performance hereunder.
20. Def I R medi .
(a) It shall be an event of default under this Lease:
(1) If Tenant does not pay in full any payment of Base
Rent or additional rent within five (5) days after notice that the
same is due, provided, however that Tenant shall not be entitled
to ally such notice or grace period more than twice in any twelve
(12) month period; or
(2) If Tenant violates or fails to perform or otherwise
breaches any agreement, term, covenant or condition herein
contained (other than with respect to the payment of Base Rent or
additional rent) and such failure continues for more than thirty (30)
days after written notice thereof to Tenant provided, however that
Tenant shall not be entitled to any such notice or grace period
more than twice in any twelve (12) month period; or
(3) If Tenant or any of the Guarantors become insolvent
or banlo'upt in any sense or make an assignment for the benefit of
creditors or offer a composition or settlement to creditors, or if a
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petition in bankruptcy or for reorganization or for an arrangement
with creditors under any federal or state law is filed by or against
Tenant or any of the guaramors, or a bill in equity or other
proceeding for the appointment of a receiver, trustee, liquidator,
custodian, conservator or similar official for any of Tenant's assets
is commenced, or if any of the real or personal property of Tenam
shall be levied upon by any sheriff, marshal or constable;
provided, however, that any proceeding brought by anyone other
than the parties to this lease under any bankruptcy, reorganization
arrangement, insolvency, readjustment, receivership or similar law
shall not constitute an event of default until such proceeding,
decree judgment or order has continued unstayed for more than
ninety (90) consecutive days.
(b) Upon the occurrence of an evem of default, landlord shall have
the following remedies and rights:
(1) To terminate this Lease by giving written notice
thereof to Tenant, and upon the giving of such notice all fights of
Tenant hereunder shall terminate, without affecting Tenant's
liab~ity for all sum~ ~ue under this Lease;
(2) To reenter the Premises, together with all additions,
alterations and improvements, and, at the option of Landlord,
remove all persons and all or any property therefrom, without
being liable for prosecution or damages therefor, and repossess and
enjoy the Premises;
(3) At any ~ime after repossession of the Premises,
whether or not the Lease shall have been terminated by Landlord,
Landlord may make such reasonable alterations and repairs as may
be necessary in order to relet the Premises and relet the Premises
or any part or parts thereof, either in landlord's name or
otherwise, for a term or terms which may, at Landlord's option,
be less than or exceed the period which would otherwise have
constituted the balance of the Term of this lease and at such rent
or rents and upon such other terms and conditions as Landlord
may decide. If the rentals received from such reletting during any
month after deducting all costs incurred by Landlord in exercising
its rights hereunder shall be less than that to be paid during that
month by Tenant, Tenant shall pay any such deficiency to
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Landlord, provided such reletting is a bona fide arms length
transaction. Such deficiency shall be calculated and paid monthly.
(4) To declare due and payable all unpaid Base Rem for
the unexpired period of the Term (and also all additional rent, as
reasonably estimated by Landlord) as if by the terms of this Lease
the same were due and payable in advance, all discounted to
present worth using a rate equal to the annual rate for United
States obligations of equal duration to the period remaimng in the
term of the Lease, and upon payment of the same, Tenant shall be
entitled to continue in possession pursuant to the terms of this
lease;
(5) In the event of the termination of this Lease,
Landlord shall be entitled to recover, in addition to any and all
sums and damages for violation of Tenant's obligations hereunder
in existence at the time of such termination, damages for Tenant's
default in an amount equal to the amount of Base Rent reserved for
the balance of the Term of this lease (plus Landlord's reasonable
estimate of additional rent as well as all other charges, payments,
eost~ and expenses herein agreed to be paid by Tenant), all
discounted to present worth using a rate equal to the annual rate
for United States obligations of equal duration to the period
remaining in the term of the Lease, less the fair market value of
the Premises for the remaMder of the Term, also discounted to
present value at such rate, all of which shall be immediately due
and payable from Tenant to landlord; and
(6) TENANT AND GUARANTORS, IN
CONSIDERATION OF THE EXECUTION OF THIS LEASE BY
LANDLORD AND FOR THE COVENANTS AND
AGREEMENTS ON THE PART OF THE LANDLORD HEREIN
CONTAINED, ARE FULLY COMPREHENDING THE
Rg.I.INQUISHMENT OF CERTAIN RIGHTS INCLUDING
RIGHTS OF PREJUDGMENT NOTICE AND HEARING, AND
AFTER DEFAULT BY TENANT UNDER THIS LEASE AND
TEN (10) DAYS' PRIOR WRITTEN NOTICE FROM
LANDLORD OF LANDLORD'S INTENT TO CONFESS
JUDGMENT IN EJECTMENT (IN ADDITION TO ANY
OTHER NOTICE REQUIRED, IF ANY, UNDER THIS
SECTION 20), HEREBY EXPRESSLY AUTHORIZES ANY
ATTORNEY OF ANY COURT OF RECORD TO ACCEPT
- 10-
SERVICE OF PROCESS FOR, TO APPEAR FOR, AND TO
CONFESS JUDGMENT IN EJECTMENT AGAINST TENANT
IN ANY AND ALL ACTIONS BROUGHT HEREUNDER BY
LANDLORD AGAINST TENANT AND/OR GUARANTORS TO
RECOVER POSSESSION FROM TIME TO TIME OF THE
PREMISES (AND TENANT AGREES THAT UPON THE
ENTRY OF EACH JUDGMENT FOR SUCH POSSESSION A
WRIT OF POSSESSIO OR OTHER APPROPRIATE PROCESS
MAY ISSUE FORTHWITH). THE RIGHT TO CONFESS
JUDGMENT IN EJECTMENT SHALL NOT BE EXHAUSTED
BY THE SINGLE OR MULTIPLE USE THEREOF. TENANT
CONFIRMS THAT THIS IS A COMMERCIAL LEASE, THAT
TENANT WAS REPRESENTED BY COUNSEL IN TENANT'S
NEGOTIATION AND EXECUTION OF THIS LEASE, AND
THAT TENANT KNOWINGLY, WILLINGLY, FREELY AND
VOLUNTARILY EXECUTED THIS LEASE WITH THIS
SECTION 20(b)(6) AS A PART THEREOF.
(c) Any paymem of Base Rent, additional rent, or any other charge
under this Lease (including amounts due by acceleration) which is not paid within
~er. (10) days after.the same is due, shall bear interest from the date dye ~P, dl the
date paid by Tenant. In addition, Tenant shall pay to Landlord an adn-~inistrative
charge of five percent (5%) of any amount owed to Landlord pursuant to this
Lease which is not paid with/n ten (10) days of the date which is set forth in this
lease if a date is specified as the due date for such payment, or, if a date is not
specified, within ten (10) days of the mailing of a bill therefor by Landlord. The
ftve percent (5%) administrative charge paid by Tenant shall be applied against
the amount of interest which accrues on any delinquent installment, so that once
Tenant has paid the administrative charge, no further interest shall accrue on any
delinquent installment until the amount of interest due exceeds thc amount of the
administrative charge. If l-~r~dlord incurs a penalty in connection with any
payment which Tenant has failed to make within the times required in this lease,
Tenant shall pay Landlord, in addition to such sums, the full amount of such
penalty incurred by Landlord.
(d) No waiver by either Landlord or Tenant of any breach by the other
of any obligations, agreements or covenants herein shall be a waiver of any
subsequent breach or of any obligation, agreement or covenant, nor shall any
forbearance by either Landlord or Tenant to seek a remedy for any breach by the
other be a waiver of any rights and remedies with respect to such or any
subsequent breach.
-11-
(e) No right or remedy herein conferred upon or reserved to Landlord
or Tenant is intended to be exclusive of any other right or remedy provided
herein or by law, but each shall be cumulate and in addition to every other right
or remedy given herein or now or hereafter existing at law or in equity or by
statute.
(f) In addition to, and in no way limiting the other remedies set forth
herein, Landlord and Tenant agree that if Tenant ever becomes the subject of a
voluntary or involuntary bankruptcy, reorganization, composition, or other similar
type proceeding under the federal bankruptcy laws, as now enacted or hereinafter
amended, then:
(1) "Adequate assurance of future performance" by
Tenant and/or any assignee of Tenant pursuant to Bankruptcy Code
Section 365 will include (but not be limited to) payment of an
additional/new security deposit in the amount of three (3) times the
then-current Base Rent payable hereunder.
(2) Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, shall be
dccmed, withoct further act or deed, to have assumed all of the
obligations of Terant arising under this Lease on and after the
effective date of such assignment. Any such assignee shall, upon
demand by Landlord, execute and deliver to Landlord an
instrument conf'unning such assumption of liability.
(3) Notwithstanding anything in this Lease to the
conuary, all amounts payable by Tenant to or on behalf of
Landlord under this Lease, whether or not expressly denominated
as "RentN, shall constitute "rent" for the purposes of Section
502(b)(6) of the Bankruptcy Code.
(4) If this ~ is assigned to any person or entity
pursuant to the provisions of the Bankruptcy Code, any and all
monies or other considerations payable or otherwise to be
delivered to Landlord or Agent (including Base Rent, additional
rent and other amounts hereunder), shall remain the exclusive
property of Landlord and shall not constitute pwperty of Tenant or
of the bankruptcy estate of Tenant. Any and all monies or other
considerations constituting Landlord's property under the preceding
sentence not paid or delivered to landlord or Agent shall be held
in trust by Tenant or Tenant's bankruptcy estate for the benefit of
- 12-
Landlord and shall be promptly paid to or turned over the
Landlord.
(g) If Landlord shall be in default in the performance of any of its
obligations under this Lease for thirty (30) consecutive days after written notice
from Tenant (unless such default is not susceptible of cure within thirty (30) days
in which event Landlord shall failed to commence curing such default within such
thirty (30) day period and to diligently prosecute such cure to completion), then
Tenant shall notify Landlord in writing of Tenant's intent to cure such default on
behalf of Landlord. Landlord shall reimburse Tenant for all reasonable out-of-
pocket costs incurred by Tenant in curing such default within ten (I0) days after
I-andlord receives a bill therefore (which bill shall set forth in reasonable detail
the costs for which compensation is claimed). Notwithstanding the foregoing,
Tenant shall not have any right in exercising its remedies under the preceding
sentence to make any repairs or modifications to areas outside the Premises,
except those solely serving the Premises.
21. Waiver. The failure or delay on the part of either party to enforce or
exercise at any time any of the provisions, rights or remedies in this Lease shall in no way
ccr.~,'gued to be a waiver thereof, ~,.or in any way to affect the validity of tbJ!;' Lease or ,~y
hereof, or the fight or' the party to thereafter enforce each and every such provision, right or
remedy. No waiver of any breach of this Lease shall be held to be a waiver of any other or
subsequent breach. The receipt by Landlord of rent at a time when the rent is in default under
this Lease shall not be construed as a waiver of such default. The receipt by Landlord of a
lesser amount than the rent due shall not be construed to be other than a payment on account of
the rent then due, nor shall any statement on Tenant's check or any letter accompanying
Tenant's check be deemed an accord and satisfaction, and Landlord may accept such payment
without prejudice to Landlord's right to recover the balance of the rent due or to pursue any
other remedies provided in this Lease. No act or thing done by Landlord or Landlord's agents
or employees during the term of this Lease shall be deemed an acceptance of a surrender of the
Premises, and no agreement to accept such surrender shall be valid unless in writing and signed
by Landlord.
22. Q~i~allg2~l. If and so long as Tenant pays the rent reserved
hereunder and observes and performs all of thc covenants, conditions and provisions on Tenant's
part to be observed and performed hereunder, Tenant shall and may peaceably and quietly have,
hold and enjoy the Premises for the entire term hereof, subject to all of the provisions of this
23. S_ig!~. Landlord retains the right from time to time to prescribe standards
governing the size, shape, number, location, material and content of all exterior signs,
- 13-
decorations, fixtures and advertising devices. Tenant shall not decorate, paint or in any other
manner alter the exterior of the demised premises, and shall not install, affix or maintain any
sign, decoration, fixture or other advertising device on the exterior of the demised premises or
elsewhere, without first obtaining Landlord's written consent and complying in all respects with
the aforesaid standards.
24. Comnliance with Leeal Reouirement_s, Tenant at all times shall comply
strictly with all requirements of all duly constituted public authorities having jurisdiction as well
as with the terms of all state, federal or municipal statutes, ordinarlces or regulations which are
or may at any time hereafter become applicable to the Premises, to the activities conducted
thereon, and to Tenant as lessee thereof. Tenant shall save Landlord harmless from all
penalties, f'mes, costs and damages of every kind which may result from any failure of Tenant
to so comply.
25. Environmental Matters.
(a) Definitions. For purposes of this Lease, the term Hazardous
Materials shall mean (1) radon gas, friable asbest¢~, urea formaldehyde foam
insulation, 'm.~x~sformers or other equipment which contain dielectric fluid
containing level of pelychiorinated biphenyls in excess of federal, state or local
sa~'.ty guideline.~,.¥;~.,chever are rr,)re stringent: (2) any subs:ance, gas, m~.tvrial
or ci~emical wi)ich is defined as or included in the nefmition of ha?ardous
substances, toxic substances, hazardous materials, hazardous wastes or words of
similar import under any federal, state or local statute, law, or ordinance
applicable to the Premises or under the regulations adopted or guidelines
promulgated pursuant thereto, including, but not limited, the Comprehensive
· Environmental Response Compensation and Liability Act of 1980, as amended,
42 U.S.C. §§9061 et seo. (CERCLA); the Hazardous Materials Transportation
Act, as amended 49 U.S.C. '§§1801, et seq.; and (3) any other chemical,
material, gas, or substance, exposure to or release of which is prohibited, limited
or regulated by any governmental or guasi-govemmental entity or authority that
has jurisdiction over the premises or the operations or activity at the Premises.
For purposes of this Lease, the term Environmental Laws means
all applicable statutes, regulations, roles, ordinances, codes, licenses, permits,
orders, approvals, authorizations, agreements and similar items, of or with any
and all governmental agencies, departments, commission, boards, bureaus or
instrumentalities of the United States, Penrt~ylvania and political subdivisions
having jurisdiction over the Premises, and all applicable judicial and
adrnini.~trafive and regulatory decrees, judgments and orders relating to the
· protection of the environment, including, without limitation, all requirements
pertaining to reporting, licensing, permitting, investigation and remediafion of
- 14-
emissions, discharges, releases or threatened releases of Hazardous Materials into
the air, surface water, groundwater or land, or relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials or relating to storage tanks.
For purposes of this Lease, the term Release means any releasing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, disposing or dumping into soil, surface waters, ground
waters, land, stream sediments, surface or subsurface strata, ambient air and any
environmental medium comprising or proximate to the Premises.
For purposes of this Lease, the term "Threat of Release" means a
substantial likelihood of a Release which requires action to prevent or mitigate
damage to the soil, surface waters, ground waters, land, stream sediments,
surface or subsurface strata, ambient air and any environmental medium
comprising or proximate to the Premises which may result from such Release.
(b) Restrictions. Tenant shall not store, place, use, generate, tran~oort
or d,spose of any Hazardous Materials at, on, or in the Premises, shall comply
with Environmental Laws, and promptly shall take all remedial action, at
Tenant's sole cost ar," expense, necessary, or deut.'able to remedy, clean-up ant.'
remove the presence of Hazardous Materials resulting form Tenant's violation of
the prohibitions set forth in this Paragraph or Tenant's failure to comply with
Environmental Laws. Any such remedial action shall be performed by an
independent reputable environmental remediation engineer, in strict compliance
with the requirements of Environmental Laws, in accordance with environmental
remediation industry practices, in accordance with the then current and evolving
best available environmental remediation technology, and in accordance with a
remediation plan approved by Landlord. Tenant shall immediately notify
Landlord of any Release or Threat of Release caused by Tenant or of which
Tenant has knowledge Tenant shall promptly provide to Landlord copies of all
correspondence relating to any Release, Threat of Release or remediation or
other, environmental response action under this Paragraph. Landlord shall have
the right, but not the obligation, from time to time during the performance of any
remediation work and following the completion of the same, to inspect the
premises and all information and documentation relating thereto.
(c) ~. Tenant hereby agrees to indemnify, protect,
defend and hold harmless Landlord, and Landlord's successors and assigns,
officers, directors, shareholders, partners and employees (Indemnified Parties)
(with counsel reasonably acceptable to the Indemnified Parties) from and against,
and shall pay and reimburse the Indemnified Parties for, any and all losses,
- 15-
claims, liabilities, damages, injunctive relief, injuries to persons, property or
natural resources, fines, penalties, costs, expenses, including, without limitation,
attorneys' fees, expenditures, expenses and court costs, actions, administrative
investigations and/or proceedings, and causes of action and sums paid in
settlement of litigation (it being understood that so long as Tenant is defending
the Indemnified Party and is not in default of its obligations hereunder, no such
litigation (other than relating to governmental fmcs and penalties or criminal
actions) shall be settlement without the reasonable consent of Tenant), arising
directly or indirectly, in whole or in part, out of any Release, Threat of Release
or any discharge, threatened discharge, deposit, presence, treatment, transport,
handling or disposal of any I-bT-rdous Materials on, at, under, in or from the
Premises caused or generated by Tenant, its employees, agents, invitees or
contractors or in the air, land surface, subsurface strata, soil, surface water,
groundwater, or soil vapor on, under, in or from any part of the Premises caused
or generated by Tenant, its employees, agents, invitees of contractors, or
resulting from the migration or the alleged or potential migration of Hazardous
Materials from the premises caused or generated by Tenant, its employees,
agents, invitees or contractors, or resulting from the migration ~r the alleged or
potential misration of Hazardous Material from the Premises caused or generated
by Tenant, its employees, agents, invitees or contractors (collectively, "Costs and
Liabilities"). The foregoing indemnity and Co~ts and Liability shall include,
without limitation, (1) all costs at law or in equity or' inspection, clean-up,
removal, remediation, testing, monitoring and restoration of any kind, and
disposal of any Hazardous Materials, (2) all costs of determining whether the
Premises are in compliance, and cause the Premises to be or become in
compliance, with all applicable Environmental Laws, (3) all costs and liabilities
associated with claims for damages to, and remedial action with respect to,
persons, property or natural resources, (4) all frees and other penalties associated
with claims of noncompliance with any Environmental laws, and (5) all
reasonable consultants' and attorneys' fees and costs. The foregoing indemnity
shall survive the temlination of thc Lease and any assignment or other Wangler
by any or all of the Indemnified Parties of their respective interests in the
Premises and shall remain in full force and effect regardless of whether the Costs
and Liabilities are incurred by thc Indemnified Partics in question before or after
termination of the Lease.
26. Payment of Tenant's Obligations by l.anaiord. Landlord shall have the
right, but shall have no obligation, to pay any claim or charge which may ever arise against the
Premises which Tenant shall fall to pay when due; to pay any amount which Tenant has
covenanted to pay hereunder and which Tenant shall fail to pay when due; and to make any
repairs to the premises which T~nant is obligated to make but has failed to do after notice by
Landlord. The amount of any payment so made by Landlord and the cost of any repair
- 16-
performed by Landlord, together with interest at the rate of the "prime rate" as published in the
Wall Street Journal, as adjusted from time to time, plus five pement (5%) from payment by
Landlord to the date of reimbursement by Tenant, shall be additional rent due with the monthly
installment of rent for the month next succeeding the date of such payment or repair.
27. Landlord's Leeal Exnen~e. In the event of any defaults under this Lease,
the losing patty shall reimburse the prevailing party for all attorneys fees and other costs and
expenses incurred by the prevailing party in connection with this Lease.
28. ~t ~nse. The Tenant hereby acknowledges and agrees that this Lease
is intended to be a complete net lease to the Landlord, except as expressly herein set out, that
the Landlord is not responsible for any costs, charges, expenses and outlays of any nature
whatsoever arising from or relating to the Premises, or the use and occupancy thereof, or the
contents thereof or the business carried on therein, and that the Tenant shall pay all charges,
impositions, costs and expenses of every nature and kind relating to the Premises.
29. Successor. The respective rights and obligations provided in this Lease
shall bind and shall inure to the benefit of the parties hereto, theft legal representatives, h~irs,
successors and ~signs; provided, however, that no rights shall inure to the benefit of anY
successor of Tenant unless Landlord's written consent for ~e transfer to such successor has first
been obtair.~,,d as provided in Paragraph 9.
30. R~. This Lease shall not be recorded in the Office of the Recorder
of Deeds or in any other office or place of public record and if Tenant shall record this Lease
(or a memorandum thereof) or cause or permit the same to be recorded, Landlord may elect to
treat such as a breach of the Agreement and be entitled to all remedies described in Section 20
hereof.
31. -Ctg. Eed21ilIE.IAH. This Lease shall be construed, governed and enforced
in accordance with the laws of the Commonwealth of Pennsylvania.
32. ~lb._tl~. If any provision of this Lease shall be held to be invalid,
void or unenforceable, the remaining provisions hereof shall in no way be affected or impaired
and such remaining provisions shall remoin in full force and effect.
33. ~. Marginal captions, titles or exhibits and riders and the table
of contents to this Lease are for convenience and reference only, and are in no way to be
construed as defining, limiting or modifying the scope of intent of the various provisions of this
34. ~. As used in this Lease, the word "person" shall mean and
include, where appropriate, an individual, corporation, parmership or other entity; the plural
- 17-
shall be substituted for the singular, and the singular for the plural, where appropriate; and
words of any gender shall mean and include the other gender.
35. Notices. Any notice, demand request or other instrument which is
or may be required or permitted hereunder shall be deemed sufficiently given if delivered in
person or sent by United States first class mail, postage prepaid and addressed to the Landlord
or Tenant, as the case may be, a~ follows:
To Landlord:
Mr. Frank Dixon
Dixon Properties, Inc.
328 North 14th Street
Lebanon, PA 17046
Copy to:
Stanley A. Smith, Esquire
RHOADS & SINON LLP
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
To Tenant:
NAPA Tramc:~ortation, Inc.
Box 145
Mechar:~icsbu,.~, PA 17055
Copy to:
Leslie D. Jacobson, Esquire
Mirin and Sacobson
8150 Derry Street
Harrisburg, PA 17111
Either party may change its address by notice so given to the other.
36. .~.ltlJllii.gg.~. Tenant hereby agrees and consents to jurisdiction in
Cumberland County, Pennsylvania.
37. ]illllii~l. Tenant hereby certifies that it has not dealt with any real
estate broker regarding this I.~ase, and that no f'mder's fees have been earned by a third party.
38. ~ll~i~lg~i. This Lease, including Exhibit A, contains all the
agreements, · · · .
conditions, understandings, representauons and warranties made between the parties
hereto w!? re.spec! to the subject matter hereof, and may not be modified orall or
suma~ssror°U~r.u~eSr~s~Y an agreement m wnUng signed by both parties hereto or the~ in any
respective
- 18-
39. Ri t of Fir Refusal. So long as Tenant is not in default hereunder or
under any other agreement, in the event Landlord receives a bona fide offer to purchase the
Premises, any part of the Premises, or property which includes the Premises, during the term
of this lease (the "Purchase Offer"), and desires to accept the same or should Landlord during
the term of this lease offer to sell the Premises, any part thereof or any property which includes
the Premises (the "Sale Offer"), Tenant shall have the right of first refusal to purchase the
subject property at the same price and upon the same terms and conditions as contained in the
Purchase Offer or Sale Offer. Immediately upon receiving a Purchase offer or prior to making
a Sale Offer, Landlord shall notify Tenant in writing, setting forth the name and address of the
prospective purchaser, the proposed purchase pfice and all other terms and conditions of the
Purchase Offer or Sales Offer. Tenant shall have a period of ten (10) days after receipt of said
notice within which to notify Landlord of its election to purchase on the terms contained in such
offer. In the event Tenant fails to give notice of its election to purchase within such ten day (10)
period, this Lease shall nevertheless remain in full force and effect, shall survive the sale of the
Premises and shall be binding upon the purchaser or purchasers of the Premises. if the property
subject to a Purchase Offer or a Sale Offer is not sold on the terms and conditions set forth
therein (with no change in the purchase price or method of payments thereof) to the purchaser
making or accepting ~ch offer no later than sixty (60) days after the date of closing speciHo!
therein, the Tenant's eight of fa'st refiisai as provided herein shall again apply as to such
Purchase Offer or Sale offer and shall also apply as to any subaequent Purchase Offer or Sale
offer.
So long as Tenant is not in default hereunder, Landlord grants to Tenant the
exclusive fight and option to purchase the Premises upon the following terms and conditions:
(a) The option may be exercised by Tenant only if the Tenant
exercised its renewal option under Paragraph 4 above and then only by wrfften
notice of such exercise to the Landlord no later than six (6) months before the
expiration of the renewal term of this Lease.
(b) This Paragraph shall be deemed to be a conditional offer by
Landlord to sell the Premines to Tenant on the terms and conditions set forth in
this Paragraph. Tenant's exercise of the option shall be deemed Tenant's
acceptance of such offer. Such offer and acceptance shall constitute a binding
contract for the purchase and sale of the Premises, in accordance with the terms
of the paragraph and the then generally prevailing customs and practices relating
to the sale of real estate in Cumberland County, Pennsylvania.
(c) The date of closing shall be the date of the expiration of the
renewal term of this lease.
- 19-
(d) The purchase price shall be One Million Five Hundred Thousand
Dollars ($1,500,000.00)
(e) At the option of the Landlord, the purchase price shall be payable
either (i) in full at the closing by cashier's check or wire transfer or (ii) by twenty
pement (20%) paid in cash at closing and a purchase money mortgage for the
balance, which mortgage would be for a term of at least fifteen (15) years and
would bear interest at the rate of one percent (1%) over the "Prime Rate"
published in the Wall Street Journal on the date of the closing.
(0 The closing shall occur at the Premises or at such other location
as mutually agreed by Landlord and Tenant.
(g) Landlord shall deliver m Tenant at the closing a recordable Special
Warranty Deed conveying to Tenant good and marketable tide to the Premises
subject only to the encumbrances and exceptions to title of record or visible on
the Premises.
Ct) At the closing, Tenant shall pay for any survey desired by it of the
Premises dated no earlier than the date of the Tenant's exemi~,, of the option
showL:g all im~ ovements on thc premises to ~:' within ai~ ~ot *agl building lines, '
and showing no encroachments from improvements located on adjoining
properties. Additionally, Tenant shall pay one-half of the transfer taxes (2%)
assessed on the transaction as recording of its deed, Tenant shall pay the other
half.
(i) The risk of loss as to the Premises shall be borne by Tenant until
the sale closes. Possession of the Premises shall be delivered to Tenant as owner
at the closing by termination of this Lease.
- 20 -
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
duly executed this Lease and have initialed the Exhibit hereto, the day and year first above
written.
ATTEST:
LANDLORD:
DIXON PROPERTIES, INC.
TENANT:
NAPA TI~SP~RTATION, INC.
SURETYSHIP AGREEMI~,NT
The undersigned hereby jointly and seVerally agree to be sureties for the full and
complete performance of and join in each and every covenant of the Tenant set forth in the
foregoing I.~..ase. This is an agreement of '~~
WITNESS:
- 21 -
ALL THAT CERTAIN tract of land situate in Silver Spring [and Hampden]
Township, Cumberland County, Pennsylvania, bounded and described as follows, to wit:
BEGINNING at a point in the center line of Basehore Road (T-606) at the
corner of lands of Ronald L Foust; thence by lands of Ronald L Foust North 09 degrees 02
minutes 02 seconds West, 208.$8 feet to a point; thence by the same South 71 degrees 18
minutes 13 seconds West, 215.92 feet to a point; thence by lands of Gross North 09
degrees 02 minutes 02 seconds West, 232.78 feet to a point; thence by the same South 73
degrees 24 minutes 49 seconds West, 98.95 feet to a point; thence by lands of Sieck North
09 degrees 02 minutes 02 seconds West, 300.00 feet to a point; thence by lands of
Universal Suppliers Realty, Inc. North 09 degrees 04 minutes 27 seconds East, 375..59 feet
to a point; thence by the same North 46 degrees 02 minutes 34 seconds West, 31.89 feet
to a point; thence by the same South 70 degrees .54 minutes 48 seconds West 16.5.13 feet
to a point; thence by lands now or formerly of Hunter North 10 degrees 43 minutes 23
seconds West, 320.73 feet to a point; thence by the same South 82 degrees 23 minutes 08
seconds West 451.02 feet to a point in the center line of Silver Spring Road; thence by the
center line of said road North 09 degrees 02 minutes 02 seconds West 22.00 feet to a point;
thence by lands of Silver Spring Presbyterian Church North 81 degrees $8 minutes 33
seconds East 980.76 feet to a point; thence South 09 degrees 16 minutes 23 seconds East,
1224.30 feet to a point; thence South 09 degrees 02 mir, utes 02 seconds East 132.50 feet
to ~ point in the center line of Basehore Road; thence by the center line of 8asehore Road
South 71 degrc.~s 18 minutes 13 seconds West, 1.50.00 feet to a point, tb~ place of
BEGINN~,G.
HAVING thereon erected a one story steel building.
BEING Lot 1 on the Plan of Lots of.William Foust recorded in Plan Book 60,
Page 65 and CONTAINING 13.28 acres.
EXHIBIT "A"
ADDENDUM TO LEASE AGREEMENT
THIS ADDENDUM TO LEASE AGREEMENT, is made this. f,/£ day of
~/~,';~.-c ' , 1997, by and between DIXON PROPERTIES, INC., a Pennsylvania business
cor~orauon having an office at 328 North 14th Street, Lebanon, Pennsylvania ("Landlord") and
i~YAPA TRANSPORTATION, INC., a Pennsylvania corporation having an office at Box 145,
Mechanicsburg, Pennsylvania ("Tenant").
WITNESSETH:
WHEREAS, the parties wish to more fully set forth the terms and conditions of
their Lease Agreemem.
as follows:
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree
1. Tenant hereby agrees to expend at least One Hundred Twenty-Five
Thousand Dollars ($125,000.00)to improve the Premises by adding fencing, grading and other
ground improvements (all with the prior written approval of the Landlord) all of which
improvements shall be completed within twelve months of tt.~e Commencement Date cf
Lease.
2. Except as modified herein, all of the terms and conditions of the existing
Lease Agreement thereof shall remain and continue in full force and effect, said terms are
hereby affu'med.
day of
WITNESS/ATTEST:
] . IN 5VITNESS WHEREOF, the parties have executed this Agreement on the
~/~ ~'( , 1997. '
//
102191/$ur~ 4, I997
LANDLORD:
DIXON PROPERTIES, INC.
TEN~T:
N~A T~P~RTA~ON, INC.
DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
ACCEPTANCE OF SERVICE
Date:
I, LESLIE D. JACOBSON, ESQUIRE, do hereby accept service, on behalf of my
clients, Napa Transportation, Inc., Ronald Accomando and Debra H. Accomando, Defendants, of
the Complaint filed in the Prothonotary's Office of Cumberland County, Pennsylvania.
I certify that I am authorized,by my client to accept service of the Complaim.
7/40,.L...,~ ~°ttn°?eY f°r D~~71 alts' Napa Tmnsp°rtati°n' Inc"
SHERIFF'S RETURN - REGULAR
CASE NO: 2002-03298 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERL~LND
DIXON PROPERTIES INC
VS
NAPA TRANSPORTATION INC ET AL
RONALD HOOVER , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
EXEL LOGISTICS INC the
DEFENDANT at 1553:00 HOURS, on the 12th day of July
at 260 SALEM CHURCH ROAD
2002
MECHANICSBURG, PA 17050
MARLON WOOD, DIRECTOR
by handing to
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 7.59
Affidavit .00
Surcharge 10.00
.00
35.59
Sworn and Subscribed to before
me this 2/~,~ day of
~ ~3~ A.D.
,
~rothonotary'
So Answers:
R. Thomas Kline
07/15/2002
BUZGON DAVIS
By:
Deputy Sheriff
ADDENDUM TO LEASE AGREEMENT
THIS ADDENDUM TO LEASE AGREEMENT, is made this. ,f~,£ day of
.~,-,~ c , 1997, by and between DIXON PRO ERTIES, INC., a Pennsylvania business
cotj~oration having an office at 328 North 14th Street, Lebanon, Pennsylvania ("Landlord") and
N/APA TRANSPORTATION, INC., a Pennsylvsnia corporation having an office at Box 145,
Mechanicsburg, Pennsylvania ("Tenant").
WITNESSETH:
WHEREAS, the parties wish to more fully set forth the terms and conditions of
their Lease Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree
as follows:
1. Tenant he3eby agrees to expeod at least One Hundred Twenw-Five
Thousand Dollars ($125,000.00)'to improve the Premises by adding fencing, grading and other
ground improvements (all with the prior written approval of the Landlord) all of which
improvements shall be completed wi'diAn twelve months of ff,~ Commencement Date cf uhe
Lease. .
2. Except as modified herein, all of the terms and conditions of the existing
Lease Agreement thereof shall remain and continue in full force and effect, said terms are
hereby affirmed.
] IN WITNESS WHEREOF, the parties have executed this Agreement on the
day of ,~./~ ~v( , 1997.
WITNESS/ATTEST: LANDLORD:
DIXON PROPERTIES, INC.
TENANT:
i c.
DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 02-3298 CIVIL TERM
AMENDED COMPLAINT
NOTICE
You have been sued in Court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and Notice
are served, by entering a written appearance personally, or by attorney, and filing in writing with
the Court your defenses or objections to the claims set forth against you. You are warned that if
you fail to do so, the case may proceed without you, and a judgment may be entered against you
by the Court without further notice for any money claimed in the Complaint or for any other
claim or relief requested by the Plaintiff. You may lose money or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
(800) 990-9108
AND NOW, comes the Plaintiff, Dixon Properties, Inc., by its attorneys, Buzgon Davis
Law Offices, and files the within Complaint, averting as follows:
1. Plaintiff, Dixon Properties, Inc., is a Pennsylvania corporation with a principal place
of business located at 328 North Fourteenth Street, Lebanon, Lebanon County, Pennsylvania,
17046.
2. Defendant, Napa Transportation, Inc., is a Pennsylvania corporation with a principal
place of business located at 4800 Trindle Road, Mechanicsburg, Cumberland County,
Pennsylvania, 17055.
3. Defendant, Ronald Accomando, is an adult individual with a residence located at
1216 Fruitville Pike, Lancaster, Lancaster County, Pennsylvania.
4. Defendant, Debra H. Accomando, is an adult individual with a residence located at
1216 Fruitville Pike, Lancaster, Lancaster County, Pennsylvania.
5. Defendant, Exel Logistics, Inc., is a Massachusetts corporation registered to do
business in the Commonwealth of Pennsylvania with an address of 260 Salem Church Road,
Mechanicsburg, Cumberland County, Pennsylvania, 17050.
-2-
6. On July 1, 1997, Plaintiff entered into a Lease Agreement with Defendant, Napa
Transportation, Inc.; a true and correct copy of the Lease, together with an Addendum, are
attached as Exhibit "A".
7. As set forth in Exhibit "A", Defendants, Ronald Accomando and Debra Accomando,
his wife, guaranteed the obligations of Defendant, Napa Transportation, Inc., in the Lease
Agreement.
8. After securing possession of the premises from Plaintiff, Defendant, Napa
Transportation, Inc., entered into a Sublease for portions of the premises with Defendant, Exel
Logistics, Inc.
9. Plaintiff's lease with Defendant, Napa Transportation, Inc., was terminated effective
June 30, 2002.
10. Upon information and belief, Defendants have vacated the premises.
COUNT ONE - BREACH OF CONTRACT
Plaintiff v. NAPA Transportation, Inc.
11. The averments of paragraphs 1 through 10 are incorporated herein by reference as if
textually set forth at length.
12. Defendant, Napa Transportation, Inc., is in breach of its Lease Agreement with the
Plaintiff in that it:
(a) Failed to keep the fence on the premises in good repair;
(b) Allowed the fence to be damaged or fail into disrepair without fixing it;
(c) Failed to repair the fence before abandoning the premises;
(d) Left concrete block, materials and other debris to exist on the property;
-3-
(e) Failed to keep the parking and driving areas on the property in good
repair, including, but not limited to, by allowing large holes and
depressions to develop in that area without repairing them;
(f) Failed to cut the grass and allowed extensive weeds to grow on the
property;
(g) Failed to pay the five percent (5%) administrative fee for late rental
payments when due; and
(h) Otherwise failed to restore the premises and return it to Plaintiff in the
condition at the beginning of the Lease.
13. The actions of Defendant, NAPA Transportation, Inc., in vacating the premises in the
condition described was a breach of the Lease Agreement.
14. Defendant's breach has caused damages to Plaintiff in an amount equal to the
necessary costs to restore and repair the premises.
15. Plaintiff is also entitled to counsel fees pursuant to paragraph 27 of the Lease.
WHEREFORE, Plaintiff respectfully requests your Honorable Court to enter judgment in
its favor in an amount in excess of Twenty-Five Thousand Dollars ($25,000), plus interest,
counsel fees and costs of suit.
COUNT TWO - BREACH OF SURETYSHIP AGREEMENT
Plaintiff v. Ronald Accomando and Debra H. Accomando
16. The averments of paragraphs 1 through 15 are incorporated herein by reference as if
textually set forth at length.
17. As guarantors and suretyships of Defendant, Napa Transportation, Inc., Defendants,
Ronald Accomando and Debra H. Accomando, are liable for the damages set forth in Count One.
-4-
WHEREFORE, Plaintiff respectfully requests your Honorable Court to enter judgment in
its favor in an amount in excess of Twenty-Five Thousand Dollars ($25,000), plus interest,
counsel fees and costs of suit.
COUNT THREE - NEGLIGENCE
Plaintiff v. Napa Transportation, Inc.
18. The averments of paragraphs 1 through 15 are incorporated herein by reference as if
textually set forth at length.
19. The damage to the fencing and/or parking and driving surfaces was caused by the
negligence of Defendant, Napa Transportation, Inc., through its authorized agents and
employees, in that those individuals:
(a) Struck the fencing around the property with vehicles, causing damage to
the fencing;
(b) Struck the fencing with mechanized equipment or other devices that
damaged the fencing;
(c) Failed to properly maintain the fencing; and
(d) Drove vehicles in such a fashion as to cause damage to the parking and
driving surfaces.
20. Defendant's negligence caused damages to Plaintiff in the form of the expenses
associated with repair of the fencing, parking and driving surfaces.
WHEREFORE, Plaintiff respectfully requests your Honorable Court to enter judgment in
its favor in an amount in excess of Twenty-Five Thousand Dollars ($25,000), plus interest,
counsel fees and costs of suit.
-5-
COUNT FOUR - NEGLIGENCE
Plaintiff v. Exel Logistics, Inc.
20.-22. Plaintiff hereby withdraws its claim against Exel Logistics, Inc.
BUZGO~x~AVIS LAW OFFICES
Tim6thy ~I. Huber, Esquire
Attorney ~[.D. #47231
525 South Eighth Street
Post Office Box 49
Lebanon, PA 17042-0049
(717) 274-1421
Attorneys for Plaintiff
-6-
'JUL-01-2002 NON 09:44 ~ BUZC,-O~JDRVIS LAW OFFiOE$ FAX NO, 717 27~ .!752P, 09
DIXON PROPERTIES, I'i~C.,
NAI~A TRA1VS?ORTATION, I~C.,
RONALD ACCOMANDO,
DEBRA H. ACCOMA1VDO, md
F, XEL LOOISTICS, INC.,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -
NO.
VERIFICATION
I, I~RANCIS J. BIXON, do hereby veri~y tha~ I am an authorized r~s~u~ive of
Dixon Prol~rties, Inc., the Plaintiff in thc within action, and ~h~ the fa~t~ set fo~ i~ the
formsoia{{ COWiPLAi.NT are {~{e and correct to the t~t of my po~ou~ knowledge or
i,~rm~ion ~ beli~ and tha~ I ara auuhorized to and make ~his Verification for and on its
behalf. I ~umd that false s~at~-.-.~lts he,in are made subj~:t to ~he l~nalties of 18
P~C.S.A. ~etiou 4904 r~lating to uusworn ~lsificatiou to authorities.
DIXON PROPERTIES, INC.,
VS.
Plaintiff
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
:
CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION - LAW
:
: NO. 02-3298 CIVIL TERM
:
AFFIDAVIT OF SERVICE BY MAIL
COMMONWEALTH OF PENNSYLVANIA)
) SS:
COUNTY OF LEBANON )
I, MARYANN MOORE, an employee in the law firm of Buzgon Davis, 525
South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Plaintiff, being duly
sworn according to law, depose and say that I filed on September 6, 2002, in the Office of the
Prothonotary of Cumberland County, Pennsylvania, the original AMENDED COMPLAINT
and that I mailed a copy by first class, regular mail to Leslie D. Jacobson, Esquire, 8150 Derry
Street, Suite A, Harrisburg, PA, 17111, Attorney for Defendants, Napa Transportation, Inc.,
Ronald Accomando and Debra H. Accomando.
Sworn to and subscribed
before me this 6th day
Jennie L. Bt~nn~, N(~n/~ I
I
DIXON PROPERTIES, INC.
NAPA TRANSPORTATION, INC.
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.
IN THE COURT OF COMMON
PLEAS, CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO: 02-3298 CIVIL TERM
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days aider fids Complaint and Notice are served,
by entering a written appearance personally or by attorney and filing in writing with the Court your
defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case
may proceed without you and a judgment may be entered against you by the Court without further notice
for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You
may lose rights important to you, including custody or visitation of your children.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. 1F YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE T~ OF~FiCE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
DAUPHIN COUNTY LAWYER REFERRAL SERVICE
213 North Front Street
Harrisburg, PA 17101
(717) 232-7536
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defendexse de las d~nandas
que se presentan mas adelante en las siguientes paginas, debe tomar accien dentro de los proximos viente
(20) dias despues de la notificacion de esta Demanda y Aviso radicendo personalmente o por medio de un
abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las
demandas prc~'ntadas aqui en contra sulfa. Se le advierte de que se usted falla de tomar accion como se
describe anteriofm~te, el case puede proceder sin usted y un fallo por cualquier suma de dinero reclamada
en la demanda o cualquie~ otra reclamacien o remedio solicitado por el demandante puede set dicado en
.contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos
lmportantes para usted.
USTGED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI
USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA
SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL.
DAUPHIN COUNTY LAWYER REFERRAL SERVICE
213 Nor~ Front Street
Harrisburg, PA 17101
(717) 232-7536
ORIGINAL
DIXON PROPERTIES, INC.
NAPA TRANSPORTATION, INC.
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO: 02-3298 CIVIL TERM
ANSWERS TO COMPLAINT
,,WITH NEW MATTER AND COUNTERCLAIM
AND NOW, comes the Defendants, Napa Transportation, Inc., Ronald Accomando,
Debra H. Accomando, and Exel Logistics, Inc., by and through their attorney, Leslie D.
Jacobson, and files the within Answers to Complaint with New Matter and Counterclaim, and in
support thereof state as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. Admitted.
10. Admitted.
COUNT ONE BREACH OF CONTRACT
Plaintiff v. NAPA Tr~,nnportation~ In¢
11.
The averments contained in paragraphs 1 through 10 are incorporated herein by reference
as if textually set forth at length.
12.
Denied the Defendant, NAPA Transportation is in breach of its Lease Agreement with
the Plaintiff in that it denies it:
(a) Failed to keep the fence on the premises in good repair;
(b) Allowed the fence to be damaged or fall in disrepair without fixing it;
(c) Failed to repair the fence before abandoning the premises;
(d) Left concrete block, materials and other debris to exist on the property;
(e) Failed to keep the parking and driving areas on the property in good repair,
including but not limited to, by allowing large holes and depressions to develop in
that area without repairing them;
(f) Failed to cut the grass and allowed extensive weeds to grow on the property;
(g) Failed to pay the five percent (5%) administrative fee for late remal payments
when due; and
(h) Otherwise failed to restore the premises and return it to the Plaintiff in the
condition at the beginning of the Lease.
13.
Denied that the actions of Defendant, NAPA Transportation, Inc. in vacating the
premises in the condition described was a breach of the Lease Agreemem.
14.
Denied the Defendant has breached the contract in any way or has caused any damages to
the Plaimiffwhatsoever.
15. Denied that Plaintiff is also emitled to counsel fees pursuant to paragraph 27 of the Lease.
WHEREFORE, Defendant, NAPA Transportation, Inc., respectfully requests this
Honorable Court to dismiss Plaintiffs' case in its entirety and emer judgement in its
favor.
COUNT TWO - BREACH OF SURETYSHIP AGREEMENT
Plaintiff v. Rona!d Accomando and Debra H. Acc0mand.
16.
The averments contained in paragraphs 1 though 15 are incorporated herein by reference
as if textually set forth at length.
17.
Denied that as guarantors and suretyship of Defendant, NAPA Transportation, Inc.,
Defendants, Ronald Accomando and Debra H. Accomando, are liable for the damage to
the Plaintiff as more specifically set forth in the responses to Count One.
WHEREFORE, Defendants respectfully requests this Honorable Court to dismiss
Plaintiff's complaint in its emirety and emer judgmem in favor of Defendants and for any
other relief deemed appropriate.
COUNT THREE - NEGLIGENCE
.plaintiff v. NAPA Traosportation, Ine
18.
The responses of paragraphs 1 through 15 are incorporated herein by reference as if
textually set forth at length.
4
19.
(a)
(b)
(c)
(d)
Denied that there is any damage to the fencing and/or parking and driving surfaces, or
that if any damage exists it was caused by the Defendant NAPA Transportation, Inc., in
that it is denied that any authorized agents and employees, in that those individuals:
Struck fencing around the property with vehicles, causing damage to the fencing;
Struck the fencing with mechanized equipment or other devices that damaged the
fencing;
Failed to properly maintain the fencing; and
Drove vehicles in such a fashion as to cause damage to the parking and driving
surfaces.
20.
Denied the Defendant was negligent in anyway, or that the Defendant's negligence
caused any damage to the Plaintiff whatsoever.
WHEREFORE, Defendant, NAPA Transportation, Inc., respectfully requests this
Honorable Court to dismiss Plaintiffs complaint in its entirety and to emer judgmem in its
favor and for any other relief deemed just and appropriate.
COUNT FOUR - NEGLIGENCE
,Plaintiff v. Excel Lo~tics~ Inc
20-22(sic). Defendants herein need not reply to paragraphs 20 through 22.
NEW MATTER
23.
Defendants incorporate their responses to paragraphs 1 through 22 herein by reference as
if textually set forth at length.
24.
Defendants acknowledge their obligation as outlined in paragraphs 11 of the subject
Lease to make repairs and maintenance to the property.
25.
Said paragraph does not require tenant to make capital improvements to the property
resulting from normal wear and tear arising from tenant's normal activities.
26.
On June 9, 2000, Hampton Township, notified Dixon Properties, Inc. and NAPA
Transportation, Inc., of certain violations of the townships Development Ordinance. Said
letter outlines certain erosion and sediment control violations. ( See Exhibit A)
27.
Those violations occurred as a result of normal wear and tear during Defendants normal
use of the premise.
28.
In order to remedy said violations of the township ordinance, certain areas of the Lease
hold premises needed to be completely repaved specifically those in front of the garage
facility. At all times during the process, Mr. Frank Dixon, of Dixon Properties was made
aware of the problem and and the need for the capital improvement. See copy of
correspondence attached hereto as Exhibit B.
COUNTERCLAIM AGAINST DIXON PROPERTIES~ INC.
29. The responses and avem~ents in paragraphs 1 through 28 are incorporated herein by
reference as if textually set forth at length.
30. Under the Lease, Defendants had the obligation to make ordinary alterations and repairs.
31.
The improvements necessary pursuant to the townships notice of violation were capital
improvements, which are the responsibility of the landlord and not the tenant pursuant to
the terms of the Lease.
32.
In good faith, Defendants (Plaintiff's in counterclaim) negioated the lowest possible price
for repaying of the areas required in order to comply with the townships violation letter.
Said cost involved a total payment of twenty thousand, six hundred, fit~een dollars and
twenty-four cents ($20,615.24) which was paid in flail by NAPA Transportation, Inc. to
the contractor Mark Creed Inc. A copy of said invoice is attached hereto as Exhibit C.
33. Despite repeated demands, and numerous requests, Plaintiff, (Defendant in Counterclaim),
Dixon Properties, Inc. has refused to remit payment to the Defendants (Plaintiff in
Counterclaim).
34.
Because of the failure to remit payment Defendant (Plaintiffs in Counterclaim) have been
damaged in the amount of twenty thousand, six hundred, fifteen dollars and twenty-four
cents ($20,615.24).
35. Pursuant to paragraph 27, Defendants (Plaintiffs in Counterclaim), are entitled to recover
all attorneys fees and costs associated with this counterclaim.
Date: ~_~___.;9_,
WHEREFORE, Defendants (Plaintiffs in Counterclaim), respectfully requests this
Honorable Court to enter judgment in its favor for twenty thousand, six hundred, fifteen dollars
and twenty-four cents ($20,615.24) together with interest there on from September 11,2001, the
date ofjudgment, plus an award of attorneys fees and costs pursuant to the specific terms of the
Lease, and for any other relief deemed just and appropriate.
Respectfully submitted
ot on /
/ 8150 Derry Street !
Harrisburg, PA 171~
(717) 909-5858
Attorney for Defendant
Hampden Township
Board of Commi~lonem
Melvyn C. F~rfl~els~ein, President
[sabell Stathas, ~ce ~ldent
J~ E. Ren~er
Ne~ W. Funk
~n~d R. McC~Jln
~hip ~ger
John E. Bra~ey, Jr.
June 9, 2000
Dixon Properties, Inc.
218 North 14m Street
Lebanon, PA 17046
RE: 6370 Basehore Road, Mechanicsburg, PA
Gendemen:
In response to the numerous complaints received from the residents living in the vicinity of
the referenced site and the public traveling Basehore Road an on-site inspection was
performed on June 9, 2000. Excessive quantities of stone, dust, crumbled pavement and
areas of mud on-site and along Basehore Road are a direct result from truck traveling into
and out of your site.
The Township's Land Development Ordinance clearly addresses the site specific problems
mentioned. Section 512 Erosion and Sediment Control contains the following:
Section 512.2.J All public streets and/or right-of-ways shall be kept mud, dirt, and
dust free ...
Section 512.3.A Streets (travel ways) shall be improved to a mud-free or otherwise
permanent passable condition.
Section 512.4 Responsibility
A .... it shall be the collectiTM responsibility of the developer and of the
contractor, person, corporation and other entity causing such sedimentation to remove it
from all adjoining surfaces, drainage systems, and water courses and to repair any damage at
his expense as quickly as possible.
Also, a complaint has been lodged with the Department of Environmental Protection. If
the mud and dust does not remain within the boundaries of the property, it is considered
pollution and subject to additional regulations.
The conditions described are poor and are unacceptable. The r~quired maintenance and
improvements is the responsibility of the property owner. You are requested to contact
230 S. Spt,Ctlng Hill Road Mechanicsbutg, PA 17055-3097
E-Mail hampden@pa.net Web Page htlp'.//twp.hampden.pa, us FAX (717) 761-7267 TDD (717) 761-8533
Administration (717) 761-0119 Ambulance (717~ 761-5343 Police (717) 761-2609 Rec~.ation (717) 761-4951
Dixon Properties, Inc.
Page Two
June 9, 2000
this office by June 19, 2000, state how and when the condition will be brought into
compliance. If you do not respond, tl~e Township and/or Pennsylvania Department of
Environmental Protection may take legal action against you as permitted by law.
If you have any questions, please call the Township office.
Sincerely,
J. R. SPEASE, P.E.
Township Engineer
dixonlt2
c: ~ Accomando, NAPA Transportation, Inc.
John E. Bradley, Jr., Township Manager
NAPA
TRANSPORTATION, INC.
September 11, 2000
Mr. Frank Dixon
Dixon Properties
218 North 14* Street
Lebanon, PA 17046
Dear Mr. Dixon:
Enclosed is a copy of the invoice for the paving work in fi:ont of the garage facility that
Mr. Aecomando and you had previously discussed. As you will see, we were able to
negotiate a final price that is substantially less than the original quote for this work. I
believe this is above and beyond normal repair and maintenance of the premises.
Therefore, according to the terms of the lease, this is an item that is reimb~rsable to
NAPA. Please process this for payment and forward that payment to NAPA within 30
days.
Respectfully,
James Brandt, Controller
cc: Ron Accomando
P.O. Box 145, Mechanicsburg, PA 17055-0145 · (717) 795-0944/FAX (717) 795-0946
MARK CRET;;
INCORPORATED
? I l'~XAco ROAD
(717) 697-8035
INVOICE NO: 000077
ORDER NO: 980730
PAGE NO: 1
014002
NAPA TRANSPORTATION INC.
ATTN: RON ACCOMANDO
P.O. BOX 145
MECHANICSBURG, PA 17055-0145
PO%:
QTY
ITEM-CODE
1.00 INV
JOB:
009800
RENTAL 2000
DESCRIPTION
SEE ATTACHED BREAKDOWN
TERMS:
DATE:
07/28/2000
PRICE EXTENSION
20615.2405
20615.24
TOTAL:
$ 20,615.24
RIFICATION
I, Ron Accomando, do hereby verify that the facts stated in the foregoing
document are true and correct to the best of my knowledge, information and belief. I
understand that false statements herein are made subject to the penalties of 18 Pa. C.S.
§4904 relating to unswom falsification to authorities.
Date:
,,/f on
DAVID MORAND,
Plaintiff
EDWARD C. WINDMILLER
Defendant
1N THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
NO: 2234 S 2000
CERTIFICATE OF SERVICE
AND NOW, this 3~ day of October 2002, I Tammy L. Ketterer, paralegal at the
Law Offices of Leslie D. Jacobson, attorney for the Defendant hereby certify that on this day I
served the v~thin Answers to Complaint with New Matter and Counterclaim upon the person
indicated below, by depositing a true and correct copy of the same in the United States Mail,
postage prepaid, which service satisdies the requiremems of the Pennsylvania Rules of Civil
Procedure:
Mr. Timothy J. Huber, Esquire
525 South Eighth Street
P.O. Box 49
Lebanon, PA 17042
LAW~~D. JACOBSON
Harrisburg, PA 17111.5260
717-909.5858
DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 02-3298 CIVIL TERM
PLAINTIFF'S REPLY TO NEW MATTER,
ANSWER TO COUNTERCLAIM AND
NEW MATTER TO COUNTERCLAIM
AND NOW, comes the Plaintiff by its attorneys, Buzgon Davis Law Offices, and files
this Reply to New Matter, Answer to Counterclaim and New Matter to Counterclaim, averring as
follows:
I. REPLY TO NEW MATTER
23. The averments of paragraphs 1 through 22 of Plaintiff's Amended Complaint are
incorporated herein by reference as if textually set forth at length.
24. No reply required.
25. Denied. Paragraph 11 of the Lease Agreement speaks for itself.
26. Admitted that correspondence of June 9, 2002, from Hampton Township was
received by the parties to this proceeding. The letter speaks for itself.
27. Denied as stated. The alleged violations arise out of the use and operation of the
property by the Defendants. Defendants are responsible for the associated expenses.
28. Admitted in part and denied in part. It is admitted that, in order to address the
demands of the Township, certain areas of the premises required paving. It is also admitted that
Mr. Dixon was aware of the Township's demands and the need to pave a portion of the property
to rectify the problem. By way of further reply, counsel for Dixon Properties demanded that
Defendants undertake the duty to address the Township's demands in accordance with their
obligations under the Lease. The remainder of the averment is denied.
WHEREFORE, Plaintiff respectfully requests your Honorable Court to dismiss
Defendants' New Matter.
II. ANSWER TO COUNTERCLAIM
The averments of paragraphs 1 through 22 Plaintiff's Amended Complaint and
29.
the answers to paragraphs 24 through 28 above are incorporated herein by reference as if
textually set forth at length.
30. Denied as stated. Defendants' obligations are set forth in the Lease Agreement.
31. Denied. It is denied that the work done as described in the invoice attached to
Defendants' pleading were the responsibility of Dixon Properties. On the contrary, they were
not. The allegation is otherwise denied as a legal conclusion.
32. Admitted in part and denied in part. It is admitted that Defendants undertook
paving of portions of the premises in order to comply with the Township's demands. The
-2-
remainder of the averment is denied since, after reasonable investigation, Plaintiff is without
knowledge or information sufficient to form a belief as to the truth of the averments of paragraph
32.
33. Denied. Dixon Properties has no duty to remit the amotmt demanded to
Defendants. It is also denied that "repeated demands and numerous requests" were made to pay
the sum.
34.
35.
Denied. Defendants are not entitled to any recovery.
Denied. Defendants are not entitled to any recovery.
WHEREFORE, Plaintiff respectfully requests your Honorable
Defendants' Cotmterclaim.
Court to dismiss
III. NEW MATTER TO COUNTERCLAIM
36. The averments of paragraphs 1 through 22 Plaintiff's Amended Complaint and
the answers to paragraphs 24 through 35 above are incorporated herein by reference as if
textually set forth at length.
37. Pursuant to the Lease Agreement between the parties, Defendants agreed as
follows:
6. Alterations.. Tenant shall make no alterations, additions or
improvements to the Premises, without the prior written consent of
Landlord. All such alterations, additions or improvements shall be at
Tenant's expense, shall be completed in accordance with ail applicable
federal, state and municipal laws, and shall become a part of the Premises
when made and shall remain upon and be surrendered with the Premises at
the end of the term.
.oo
8. Condition of Premises. Tenant acknowledges and agrees
that there have been no representations or warranties made by or on behalf
-3-
of Landlord with respect to the Premises or with respect to the suitability
of the same for the conduct of Tenant's business. The Tenant is taking the
Premises in "as is" condition. The taking of possession of the Premises by
Tenant shall conclusively establish that the Premises were at such time in
satisfactory condition, order and repair.
11. Repairs and Maintenance and Utilities.
(a) Tenant shall keep the Premises in good maintenance and
repair at the sole cost of Tenant. The Tenant's repair and maintenance
obligations shall be all inclusive, including, without limitation, the parking
lot, sidewalk, roof, heating, air conditioning, plumbing and electrical
systems, building exterior and structural components, landscaping,
window and door glass, and snow and ice removal from parking areas,
sidewalks and, if conditions warrant, the roof.
24. Compliance with Legal Requirements. Tenant at all times
shall comply strictly with all requirements of all duly constituted public
authorities having jurisdiction as well as with the terms of all state, federal
or municipal statutes, ordinances or regulations which are or any at any
time hereafter become applicable to the Premises, to the activities
conducted thereon, and to Tenant as lessee thereof. Tenant shall save
Landlord harmless from all penalties, fines, costs and damages of every
kind which may result from any failure of Tenant to so comply.
28. Net Lease. The Tenant hereby acknowledges and agrees
that this Lease is intended to be a complete net lease to the Landlord,
except as expressly herein set out, that the Landlord is not responsible for
any costs, charges, expenses and outlays of any nature whatsoever arising
from or relating to the Premises, or the use and occupancy thereof, or the
contents thereof or the business carded on therein, and that the Tenant
shall pay all charges, impositions, costs and expenses of every nature and
kind relating to the Premises.
38. Pursuant to the aforesaid contractual provisions, Plaintiff has no duty to reimburse
Defendants for the amounts sought in the Counterclaim.
-4-
WHEREFORE, Plaintiff respectfully requests your Honorable Court to enter judgment in
its favor in an amount in excess of Twenty-Five Thousand Dollars ($25,000), plus interest,
counsel fees and costs of suit.
~AVIS LAW OFFICES
BUZGON
Attorney I.D. #47231
525 South Eighth Street
Post Office Box 49
Lebanon, PA 17042-0049
(717) 274-1421
Attorneys for Plaintiff
VERIFICATION
I, FRANCIS J. DIXON, do hereby verify that I am an authorized representative of Dixon
Properties, Inc., the Plaintiff in the within action, and that the facts set forth in the foregoing
PLAINTIFF'S REPLY TO NEW MATTER, ANSWER TO COUNTERCLAIM AND NEW
MATTER TO COUNTERCLAIM are true and correct to the best of my personal knowledge or
information and belief, and that I am authorized to and make this Verification for and on its
behalf. I understand that false statements herein are made subject to the penalties of 18
Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities.
Dated:
DIXON PRO--TIES, INC.
~/"~cis J ~:ix ~~
By:~~//D,,on ~
DIXON PROPERTIES, 1NC.,
VS.
Plaintiff
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
:
CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION - LAW
:
: NO. 02-3298 CIVIL TERM
:
AFFIDAVIT OF SERVICE BY MAIL
COMMONWEALTH OF PENNSYLVANIA)
) SS'
COUNTY OF LEBANON )
I, MARYANN MOORE, an employee in the law firm of Buzgon Davis, 525
South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Plaintiff, being duly
sworn according to law, depose and say that I filed on October 14, 2002, in the Office of the
Prothonotary of Cumberland County, Pennsylvania, the original PLAINTIFF'S REPLY TO
NEW MATTER, ANSWER TO COUNTERCLAIM AND NEW MATTER TO
COUNTERCLAIM and that I mailed a copy by first class, regular mail to Leslie D. Jacobson,
Esquire, 8150 Derry Street, Suite A, Harrisburg, PA, 17111, Attorney for Defendants, Napa
Transportation, Inc., Ronald Accomando and Debra H. Accomando.
Sworn to and subscribed
before m~ this 14th day
(MARYANN MOORE)
DIXON PROPERTIES, INC.,
Plaimiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 02-3298 CIVIL TERM
AFFIDAVIT OF SERVICE BY MAIL
COMMONWEALTH OF PENNSYLVANIA)
) SS:
COUNTY OF LEBANON )
I, MARYANN MOORE, an employee in the law firm of Buzgon Davis, 525
South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Plaintiff, being duly
sworn according to law, depose and say that I mailed on October 17, 2002 by regular mail, in a
postpaid envelope, the original REQUEST FOR PRODUCTION OF DOCUMENTS OF
PLAINTIFF DIRECTED TO DEFENDANTS to Leslie D. Jacobson, Esquire, 8150 Derry
Street, Suite A, Harrisburg, PA, 17111, Attorney for Defendants, Napa Transportation, Inc.,
Ronald Accomando and Debra H. Accomando.
Sworn to and subscribed
/ ,pf 9.ct er,
Not/arC
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and suk~itted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
(Check one) ( ) for JURY trial at the next term of civil court.
( X ) for trial without a jury.
CAPTION OF CASE
(entire caption must be stated in full)
DIXON PROPERTIES, INC.,
(Plaintiff)
VS.
NAPATRANSPORTATION, INC.,
RONALDA~,
DEBRAH. ACODMASDOand
EAst. LOGISTICS, INC,
VS.
(Defendant)
(d3eck one)
(X) Civil Action - Law
( ) Appeal fremArbitration
( )
(other)
The trial list will be called on
and
Trials co~,~'~nce on
Pretrials will be held on
(Briefs are due 5 days before pretrials. )
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1. )
No. 02-3298 Civil 19
Indicate the attorney who will try case for the p~ty who files this praecipe:
Timothy J. Huber, Esq., BuzgonDavis Law Office, 525 Si. 8thStrcc~, Lebanon, PA 17042
Indicate trial counsel for other parties if known: Leslie D. Jacobson, Esq.,
8150 Derry Strcc~, Suite A, Harrisburg, PA 17111, Attorney for Defendants, Napa
Transportation, Inc., Ronald Acccxaando and Debra H. Ac~mando
This case is ready for trial. Signed:I~A~]~- ~
Print Name: Timothy J. Huber, Esc~ire
Date: /]-//O /0 2-- Attorney for: Dixon Properties, Inc.
DIXON PROPERTIES, INC.,
VS.
Plaintiff
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION - LAW
:
: NO. 02-3298 CIVIL TERM
:
AFFIDAVIT OF SERVICE BY MAIL
COMMONWEALTH OF PENNSYLVANIA)
) SS:
COUNTY OF LEBANON )
I, MARYANN MOORE, an employee in the law firm of Buzgon Davis, 525
South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Plaimiff, being duly
sworn according to law, depose and say that I filed on December 10, 2002, in the Office of the
Prothonotary of Cumberland County, Pennsylvania, the original PRAECIPE FOR LISTING
CASE FOR TRIAL and that I mailed a copy by first class, regular mail to Leslie D. Jacobson,
Esquire, 8150 Derry Street, Suite A, Harrisburg, PA, 17111, Attorney for Defendants, Napa
Transportation, Inc., Ronald Accomando and Debra H. Accomando.
(MARYANN MOORE)
Sworn to and subscribed
before me this 10th day
fM~~~of Dec ember, A.D., 2002.
I v ,au t. vont I
DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO.: 02-3298
DEFENDANTS'. OB,JECTION TO LISTING CASE FOR NON-JURY TRIAL
Defendants received a copy of the notice requesting that the ease be listed for Non-Jury
Trial.
2. Discovery is not complete.
Defendants need a reasonable period of time to conduct discovery in order to properly try
this case.
WHEREFORE, the Defendants respectfully requests this Honorable Court to deny the Plaintiff's
request to list this matter for trial.
sofUlly Subm!tted,
n
/I.D. No.: 52673 I I
/ 815o Street \/
Harrisburg, PA 17111 ,o
717.909.5858
Attorney for Defendants
OmGmL
DIXON PROPERTIES, INC.,
Plaintiff
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO.: 02-3298
CERTIF,,ICATE, OF SERVICE
AND NOW, this 17~ day of December 2002, I Tammy L. Ketterer, paralegal at the Law
Offices of Leslie D. Jacobson, attorney for the Defendan~ hereby certify that on this day I served the
within Defendants' Objection to Listing Case for Non-Juo' Trial upon the person indicated below, by
depositing a true and correct copy of the same in the United States Mail, postage prepaid, which service
satisifies the requirements of the Pennsylvania Rules of Civil Procedure:
Timothy Huber, Esquire
I.D. No.: 47231
525 South Eighth Street
P.O. Box 49
Lebanon, PA 17042
LAW OFFICES,OF LESLIE D. JACOBSON
8~~~150y L ' ~f~De~eeLE"sP2eal-eAgal-
Harrisburg, PA 17111.5260
717-909.5858
l: :"dlb' 1 itiga~icm'Dixon Pro ~erlies\Rcsponse to Ob ¢cfion to I,isting (iasc lbr Trial.doc - 12/18/02 I 0:16 AM
DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 02-3298 CIVIL TERM
PLAINTIFF'S RESPONSE TO DEFENDANTS'
OBJECTION TO LISTING CASE FOR NON-JURY TRIAI~
AND NOW, comes the Plaintiff by its attomeys, Buzgon Davis Law Offices, and
files this Response to Defendants' Objection to Listing Case for Non-Jury Trial:
1. Admitted.
2. Denied as stated. By way of further answer thereto, Plaintiff's Complaint
was filed on July 11, 2002. Defendants' counsel accepted service of Plaintiff's Complaint on
July 15, 2002. On October 9, 2002, the undersigned mailed correspondence to Defendants'
counsel informing him of Plaintiff's intention to list the matter for trial at the earliest possible
date and inviting Defendants' counsel to initiate any needed discovery; a tree and correct copy of
said correspondence is attached as Exhibit "A". Defendant chose not to commence any
discovery.
BERNERD A. BUZGON
HARRY W. REED. JR.
TIMOTHY J. HUBER
EDWARD J. COYLE
MARY H. BURCHIK
SCOTt L. GRENOBLE
~OHN W. DITZLER
JASON J. SCHIBINGER
BUZGON DAVIS
LAW OFFICES
A PI~OI~IONAL CO~N~ATION
525 SOLrFH EIGHTH STREET
POST OFFICE BOX 49
LEBANON, PA 17042
PHILIP S. DAVIS
(1942 - 1995)
RICHARD W. DAVIS
(!~4- ~997)
PHONE: (717) 274-1421
FAX: (717) 274-1752
October 9, 2002
RE: Dixon Properties, Inc. v. Napa Transportation, Inc., et al
Leslie D. Jacobson, Esquire
8150 Derry Street, Suite A
Harrisburg, PA 17111
Dear Les:
I am in receipt of the Answer that you have filed in this case. I note that the introductory paragraph
to your Answer suggests that you are representing Exel Logistics. I assume that was done in error.
I note that there are no record claims against Exel Logistics at thJis point. I had previously forwarded
to you a consent to dismissal of Exel as a Defendant in this matter. Please advise as to whether or
not you will execute that consent and secure its dismissal.
In the event you intend to initiate any discovery, could you please do so promptly. I intend to list
this matter for trial at the earliest possible date.
I look forward to your prompt reply.
S~cerely,
TJI-I/mam
CC:
Robert C. Whipple, Esq. (w/enc.)
Marlin Wood (w/enc.)
Frank Dixon
EXHIBIT "A"
~/3[ :/,~ ~N01 '1 )'~,dlb',l itigatio~'~Di×on DropcrlJcs'~A []~davil ol' scrviccdoc - 12,'18/02 I 0:I 5 A M
DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 02-3298 CIVIL TERM
AFFIDAVIT OF SERVICE
COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF LEBANON )
I, MARY ANN MOORE, an employee of Buzgon Davis Law Offices, 525 South Eighth
Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Plaintiff, being duly sworn
according to law, depose and say that I mailed on December 18, 2002, by regular mail, in a
postpaid envelope, a true and correct copy of PLAINTIFF'S ILESPONSE TO DEFENDANTS'
OBJECTION TO LISTING CASE FOR NON-JURY TRIAL, the original of which was mailed
on December 18, 2002, for filing in the Office of the Prothonotary of Cumberland County,
Pennsylvania, to Leslie D. Jacobson, Esquire, 8150 Derry Street, Suite A, Harrisburg, Pennsylvania,
17111, attorney for Defendants.
Sworn to and subscribed
before me this 18th day
of December, A.D., 2002.
Notar Public . ~' ...... _
MARY ANN MOORE
DIXON PROPERTIES, INC.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO and
EXEL LOGISTICS, INC.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2002-3298 CIVIL
CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this 13T__~day of JANUARY, 2003, a pretrial
conference in the above-captioned matter is SCHEDULED for
WEDNESDAY, JANUARY 29, 2003, at 1:00 ~z_~ i:n Chambers of the
undersigned judge, Cumberland County Courthouse, Carlisle,
Pennsylvania. Pretrial memorandum shall be submitted by counsel
in accordance with C.C.R.p. 212-4, at least five (5) days prior
to the pretrial conference.
TRIAL in the matter will be scheduled at the pretrial
conference. Counsel are directed to have their calendars
available.
cc:/~imothy j. Huber, Esq.
/Leslie D. Jacobson, Esq.
Taryn Dixon
Court Administrator
Edward E. Guido, j.
o1-1'-1-03
DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND cOUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 02-3298 CIVIL TERM
AFFIDAVIT OF SERVICE BY MAIL.
COMMONWEALTH OF pENNSYLVANIA)
) SS:
COUNTY OF LEBANON )
I, MARYANN MOORE, an employee in the law firm of Buzgon Davis, 525
South Eighth Street, Lebanon, Lebanon Coumy, Pennsylvania, Attorneys for Plaimiff, being duly
sworn according to law, depose and say that I mailed on January 14, 2003 by regular mail, in a
postpaid envelope, the original RESPONSE TO DEFENDANTS' REQUEST FOR
PRODUCTION OF DOCUMENTS DIRECTED TO PLAINTIFF - FIRST SET AND
PLAINTIFF'S ANSWERS TO DEFENDANTS' INTERROGATORIES DIRECTED TO
PLAINTIFF - FIRST SET to Leslie D. Jacobson, Esquire, 8150 Derry Street, Suite A,
Harrisburg, PA, 17111, Attorney for Defendants, Napa Transportation, Inc., Ronald Accomando
and Debra H. Accomando.
(MARYANN MOORE)
Sworn to and subscribed
before me this 14th day
of January, A.D., 2003.
I v~ t. swo~z ~
DIXON PROPERTIES, INC.,
Plaintiff
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO and
EXEL LOGISTICS, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
02-3298 CIVIL TERM
CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this 29th day of January, 2003, a
nonjury trial is scheduled before the undersigned for Friday,
March 28, 2003, at 8:30 a.m.
The parties are given until March 1, 2003, to
complete any discovery. Any motions with regard to
discovery, any requests for continuances, or any motions in
limine, shall be filed not later than March 10, 2003.
Counsel are directed to have all exhibits pre-marked and to
provide copies to opposing counsel prior to March 1, 2003.
Any objections, other than to relevance, shall be filed in
the form of a motion in limine.
/Timothy J. Huber, Esquire
Attorney for Plaintiff
jLeslie D. Jacobson, Esquire
Attorney for Defendants
srs
Edward E. Guido, J.
/Exel Logistics,
01'3;
Inc.
DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC., '
RONALD ACCOMANDO, '
DEBRA H. AcCOMANDO, and '
EXEL LOGISTICS, INC., '
Defendants '
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND cOUNTY, PENNSYLVANIA
CIVIL ACTION LAW
NO. 02-3295
MOTION IN LIMINE
And now, comes the Plaintiff, by its attorneys, Buzgon Davis Law Offices, and files the
following Motion in Limine:
1. Defendants have identified an estimate of Security Fence Company as an exhibit
it intends to offer into evidence at trial; see copy of exhibit D-7 attached to this
Motion.
2. Pursuant to the Court's Order, a Motion in Limine should be filed in regard to
objections to exhibits other than to relevance.
3. It is believed that the individual who prepared the estimate is not expected to
testify at trial and, therefore, the exhibit is hearsay and a proper foundation to its
admission cannot be laid.
4. Plaintiff objects to the admission of exhibit D-7 on that basis.
By:
[UZGON DAVIS LAW OFFICE
T!~OTHY J. HUBER, ESQ.
Atty. I.D. 47231
525 South Eighth Street
PO Box 49
Lebanon, PA 17042
(717) 274-1421
Date:
710 Wise^ve.;e 'SECURITY FENCE CO-PhOne: (717) 244-7653
Tol~ Free: (800) 344-2132
P.O. Box 395 Const~ction Division ~: ~17) 24¢57~
ed uon, PA 17356
R ' eb S~:~.~tyfence'c°m
E-Maih sfc~lion-tech,com ~ ~ -
~ ...... 2003
....
-Ftrl~VISH N~.CE$SARY ~4TERIAL$ AND LABOR TO REPAIR - REPLACE - CHAEV LINK
FENCE/_ND GATES ~ REQO1RED To RE-SECURE LOT.
AREA A
REPLACE GATE AN'D GATE PoST A~ NEEDED
INSTAr,LED FP-!CE $1024.00
REPLACE GATE POST, RE-INSTALL SLIDE GATE AND REPAIR FENCE '
~' F., :.0' .'; ~ ' ' ' ""
INSTALLED PR/CE $.860. O0 ~ ~"- '''~''''~'''~ / '~ ~' '-
AB.F_.A C
REPAF~ FENCE AS NEEDED
INSTALLED pRICE $1 18&OO ,c ;:
~D
REP~ FE?~CE AS NEEDED
INSTALLED pRICE ~l,500. O0
hereby to furnish material and labor - eomptete in accordance with above spe~dlcabons, for ~i
extra c~== will be excited only u~ wtflten u~fl strike~, N~: ~ P~ ~Y be
~ ' r~ ' ~i -T~ ~,e ~c~. s~ ~' m~ ..... -'
CCU Co~ * 'nlq
.... · ........ For~5/~
=ON:ici AII~f~D::tS :
- sECURITY FENICE cO.
7 to Wise Avenue
RED LION, pENNSYLVANIA 1.7356
(717) 24~7653
FAX (717) 246-3162-
CALGUt. AT~O SY,
CHE~ !~/
I I
i I
DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 02-3298 CIVIL TERM
AFFIDAVIT OF SERVICE BY MAIL,
COMMONWEALTH OF PENNSYLVANIA)
) SS:
COUNTY OF LEBANON )
I, MARYANN MOORE, an employee in the law firm of Buzgon Davis, 525
South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Plaintiff, being duly
sworn according to law, depose and say that I filed on March 7, 2003, in the Office of the
Prothonotary of Cumberland County, Pennsylvania, the original MOTION IN LIMINE and that
I mailed a copy by first class, regular mail to Leslie D. Jacobson, Esquire, 8150 Derry Street,
Suite A, Harrisburg, PA, 17111, Attorney for Defendants, Napa Transportation, Inc., Ronaid
Accomando and Debra H. Accomando.
(MARYANN MOORE)
Sworn to and subscribed
this 7th day
D.,/2003.
Jennie L amwer, NOaly R__~!c._-
My ~ Expires Aug. 5, 200S
DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO.: 02-3298
DEFENDANT'S ANSWERS TO
PLAINTIFF'S MOTION IN LIMINE
AND NOW, comes the Defendants, by their attorney, Law Offices of Leslie D. Jacobson, and
files the following Answers to Plaintiff's Motion in Limine:
Admitted. Defendants have identified an estimate of Security Fence Company as an
exhibit it intends to offer into evidence at trial.
Admitted.
Denied that the individual who prepared the estimate is not expected to
testify at trial and, therefore, said individual, when known, will testify, and will be
added to Defendants witness list.
Counsel for Plaintiff has been notified and does not object to the addition of the
appropriate witness.
DATE:
17 MARCH 2003
~LAW OFFICES OF LESLIE D. JACOBSON
/ /L~slie D. Jacobson,
[ ~/I.D. No.: 52673
"' 8150 De~, Street
Harrisburg:, PA 17111
717-909-5858
Attorney fi>r Defendants
DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO.: 02-3298
CERTIFICATE OF SERVICE
AND NOW, this 17th day of March 2003, I Tammy L. Ketterer, paralegal at the Law Offices of
Leslie D. Jacobson, attorney for the Defendant hereby certify that on this day I served the within
Defendants' Answers to Plaintiffs' Motion in Limine upon the person indicated below, by depositing
a tree and correct copy of the same in the United States Ma/il, postage prepaid, which service satisifies
the requirements of the Pennsylvania Rules of Civil Procedure:
Timothy Huber, Esquire
525 South Eighth S~treet
P.O. Box 49
Lebanon, PA 17042
LAW OFFICES OF LESLIE D. JACOBSON
8150 Derry'b'~reet, Suite A
Harrisburg, PA 17111.5260
717-909.5858
DIXON PROPERTIES, INC., :
Plaintiff :
:
V. :
:
NAPA TRANSPORTATION, INC.,:
RONALD ACCOMANDO, :
DEBRA H. ACCOMANDO, and :
EXEL LOGISTICS, INC., :
Defendant :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-3298 CIVIL TERM
ORDER QF COURT
AND NOW, this 28th day of March, 2003, by
agreement of the parties, the Plaintiff's claim against Excel
Logistics, Inc., and the Defendant's counterclaim against Exel
Logistics, Inc., are withdrawn.
By the
Edward E. Guido, J.
Timothy j. Huber, Esquire
For Plaintiff
Leslie D. Jacobson, esquire
For Defendants
srs
DIXON PROPERTIES, INC.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTIC, INC.
IN THE COURT OF COMMON PLEAS OF
NO. 2002-3298 CIVIL TERM
CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this 1___~ day of APR[L, 2003, alter hearing and in accordance
with Pennsylvania Rule of Civil Procedure 1038(b) we enter the following order:
1.) On the claim of Plaintiff, we find in favor of Plaintiff and against
Defendants NAPA Transportation, Inc., Ronald Accomando and Debra
H. Accomando, jointly and severally in the amount of $11,000 plus
court costs.
2.)
On the counterclaim of Defendant NAPA Transportation, Inc., against
Plaintiff, we find in favor of Plaintiff.
Timothy ]. Huber, Esquire
525 South Eighth Street
Lebanon, Pa. 17042
Leslie D. ]acobson, Esquire
8150 Derry Street
Harrisburg, Pa. 17111
Edward E. Guido, ].
DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
NO. 02-3298
PRAECIPE TO ENTER JUDGMENT
TO THE PROTHONOTARY:
Please enter judgment against Defendants, NAPA Transportation, Inc., Ronald
Accomando and Debra H. Accomando, jointly and severally in the amount of $11,000.00, plus
court costs, in accordance with Judge Guido's Order of April 1, 2003.
Dated:
BUZGON DAVIS
BY:
TIMOTHY J. HUBER, ESQUIRE
Attorney I.D. 47231
525 S. 8th Street
Lebanon, PA 17042
717/274-1421
Attorneys for Plaintiff
DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC., '
RONALD ACCOMANDO, .
DEBRA H. ACCOMANDO, and ·
EXEL LOGISTICS, INC., .
Defendants .
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
NO. 02-3298
AFFIDAVIT OF SERVICE BY MAIL
COMMONWEALTH OF PENNSYLVANIA)
COUNTy OF LEBANON ) ss:
)
I, MARYANN MOORE, an employee of the law finn of Buzgon Davis, 525
South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Plaintiff, being duly
sworn according to law, depose and say that I filed on April 25, 2003, in the Office of the
Prothonotary of Cumberland County, Pennsylvania, the original and one true and correct copy of
a PRAECIPE TO ENTER JUDGMENT, and that I provided the Prothonotary with a stamped
envelope addressed to Leslie D. Sacobson, Esquire, 8150 Derry Street, Harrisburg, Pennsylvania,
17111, Attorney for Defendants.
Sworn to and subscribed
before me this 25th day
of April, A.D., 2003.
(MA~RYANN 1V~OORE)
DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO,
DEBRA H. ACCOMANDO, and
EXEL LOGISTICS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
NO. 02-3298
PRAECIPE TO SATISFY JUDGMENT
TO TIlE PROTHONOTARY OF SAID COUNTY:
Please satisfy thc judgment in this case.
BUZGON DAVIS LAW OFFICES
By: ~
TIMOTHY J. HUBER, ESQUIRE
Attorney I.D. #47231
525 South 8t~' Street
Lebanon, PA 17042
Attorney for Plaintiff
717/274-1421
Dated:
DIXON PROPERTIES, INC.,
Plaintiff
VS.
NAPA TRANSPORTATION, INC.,
RONALD ACCOMANDO, .
DEBRA H. ACCOMANDO, and ·
EXEL LOGISTICS, INC., .
Defendants .
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
NO. 02-3298
AFFIDAVIT OF SERVICE BY MAIL
COMMONWEALTH OF PENNSYLVANIA)
COUNTy OF LEBANON ) ss:
)
I, MARYANN MOORE, an employee of the law firm of Buzgon Davis, 525
South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Plaintiff, being duly
sworn according to law, depose and say that I filed on April 24, 2003, in the Office of the
Prothonotary of Cumberland County, Pennsylvania, the original and one true and correct copy of
a PRAECIPE TO SATISFY JUDGMENT, and that I mailed a copy by first class mail to
Leslie D. Jacobson, Esquire, 8150 Derry Street, Harrisburg, Pennsylvania, 17111 Attorney for
Defendants. '
Sworn to and subscribed
before me this 24th day
of April, A.D., 2003.
(MAROYA o0 -