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HomeMy WebLinkAbout94-02753 . J 1 ~ I ~ "( €, u' t..:. - . , (j r<)! to' c:- <0 J_ R, Rubl, Eaqul.. Anomey I,D, No, 55798 RHOADS ,. SINON 0.. Sou'" Mark.. Squa.., 12'" Floor p, 0, Box 1146 ".rriobUII. PA 17108.1146 (717)233-5731 Anomey. (or Smith Land eft Improvement Corporllion SMITII LAND & IMPROVEMENT CORPORATION, IN TIlE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PBNNSYLV ANIA Plaintiff NO. ql./ - ), 7 -5 3 Cdll ~rlYl v. TIlE EVANS COMPANY, ACTION FOR DECLARATORY JUDGMENT Defendant lSOTICE TO PLE~ YOU HA VB BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE TIllS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE mE OFFICE SET FORm BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE Court Administrator 4th Floor, Cumberland County Courthouse I Courthouse Square Carlisle, PA 17013 (717) 240-6200 1_ R, Rubl. l!Iqul.. AUomoy I,D, No, 55791 RHOADS '" SINON 0.. South M.rbl Squ'''' 12th Floor P, 0, Bo. 1146 ".rriabuli. PA 17101.1146 (717)233-5731 Attorney. for Smith ....nd & Improvement Corporation SMITH LAND & IMPROVEMENT CORPORATION, IN 11IB COURT OF COMMON PLEAS CUMBERLAND COUNTY, PBNNSYLV ANIA Plaintiff NO. Q4. :2753 v. 11IB EVANS COMPANY, ACTION FOR DECLARATORY JUDGMENT Defendant ...........0...............0.............. . ~ NOW COMES Plaintiff, Smith Land & Improvement Corporation, by its counsel, Rhoads & Sinon, and files the within Complaint for Declaratory Judgment as follows: 1. Plaintiff Smith Land & Improvement Corporation ("Smith Land") is a corporation fonned and chartered pursuant to the laws of the State of Delaware with a principal place of business located at 2001 State Road, Camp Hill, Pennsylvania. 2. Defendant The Evans Company ("Evans") is a corpomtion fonned and chartered pursuant to the laws of the District of Columbia with a principal place of business located at 8283 Greensboro Drive, Suite 200, Mclean, Virginia 22102. 3. On or about April 28, 1993, Smith Land and Evans entered into a Contract of Sale whereby Smith Land agreed to sell and Evans agreed to purchase approximately thirty (30) acres of real property (the "Property") located in Swatara Township, Dauphin County, Pennsylvania. A true and correct copy of the Contract of Sale is attached hereto at Exhibit "A" and incolpOrated herein by reference. 4. The Property is specifically located on U.S. Route 322 and Mushroom Hill Road, Harrisburg, Pennsylvania. 5. According to the Contract of Sale, the total price to be paid for the Property was Four Million Two Hundred Thousand Dollars ($4,200,000). 6. Pursuant to the Contract of Sale, Evans deposited $25,000 with an escrow agent, The Lawyers Title Insurance Company, as earnest money to be applied to the purchase price at closing. 7. The $25,000 initial deposit was refundable for a period of six (6) months from the date of t~e Contract of Sale (Agreement 12). 8. Conversely, in the event Evans failed to close within the time periods specified in the Contract of Sale, Smith Land became entitled to retain the $25,000 initial deposit as fixed and liquidated damages. - 2 - 9. Evans failed to close within the time period specified in the Contract of Sale and accordingly forfeited its right to a return of the $25,000 initial deposit. 10. Despite the fact that Evans failed to close within the time period specified in the Contract of Sale, Evans has wriuen to Smith Land and the escrow agent requesting the return of the $25,000 initial deposit. 11. Accordingly, a dispute currently exists between Smith Land and Evans insofar as each party contends it is contractually entitled to the $25,000 initial deposit. WHEREFORE, Plaintiff Smith Land & Improvement Corporation requests that the Court enter the following judgment: a. Declaring that Defendant The Evans Company has no claim, legal, equitable or otherwise, to the $25,000 initial deposit paid to lawyers Title Insurance Corporation; b. Declaring that Plaintiff Smith Land & Improvement Corporation, is entitled to retain as liquidated damages the $25,000 initial deposit plus any accrued interest; - 3 - ". . '. ". c. Declaring that Defendant, The Evans Company, shall be required to reimburse Plaintiff the reasonable costs and attorney's fees associated with bringing this action; and d. Granting such further relief as the Court may deem appropriate. RHOADS & SINON k . Hurley, Jr. Je R. Ruhl o e South Market Square . O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 6291\ Attorneys for Smith Land & Improvement Corporation - 4- '. '. VERIFICATION R. B. Jordan, n, deposes and says, subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities, that he is the Chainnan of the Board of Smith Land and Improvement COIporation, and that the facts set forth in the foregoing "Complaint" are true and correct to the best of his knowledge, infonnation and belief. _- ,(/1 , -;' .,'.':>'> -0 ,'" ,... 1#lv. - .!./ R B. Jordan, n AU "AIIUQAI,MI"'I.'CO, '._mllt~ HI" ",e'CUD @ . " " .'. exhibit A -- ~AY-20-94 FRI 07:07 L 8 SMITH INC P.02 FAX NO. 717+7318325 .' .' CONTRACI' OP SALE THIS CONTRACI' OP SALE, by and between SMITH LAND 8< IMPROVEMENT CORPORA'I10N, a Delaware Corporation (hereinafter "SelIer") and THE BY ANS COMPANY, a District of Columbia Corporation, or assigns (hereinafter "Purchaser"): WIT N E SSE T H: WHEREAS, Seller is the oWnll!' of approximately thirty (30) acres, more or less of real propeny loclted i.n Swnrara Township, Dauphin County, Commonwealth of P~lvania (the "Property")" l'Jcllled on U.S. Route 322 and Mushroom Hill Road, Harrisburg, Pennsylvania, l\lld til.1har shown on the plat attached herero, signed by the parties and made a part hereof as Exhibit A; and WHEREAS, Purchaser I. desirous of acquiring the said real property and Seller is desirous of selling the real property together with all irnprovements thereon, upon the terms and subject to the conditions hereinafter set forth. NOW, THEREFORE, in consideration of the covenants and undertaking provided for herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do agree as follows: 1. PURCHASE PRICE. The total price to be paid for the property shall be FOUR MIWON 1W0 HUNDRED THOUSAND DOLLARS ($4,200,000.00); OR ONE HUNDRED POR.'1YTHOUSAND DOLLARS ($140,000.00) per aae, rounded to the nearesr tenth of an aae, based on an updated ALTA boundmy survey ro be obtained by Purchaser. The Purchaser agrees to pay the entire purchase price in cash at the dare of conveyance, of wbich sum the deposit referenced below shall be a parr. 2. INrnAI. DEPOSIT. Within three business days after full execution and delivery of this Contract, Purchaser shall deliver to a tirle company licensed to do business in the Conunonwealth of Pennsylvania (the "Escrow Agent") a check in the amount of 1WENTY-PIVE THOUSAND DOLLARS ($25,000.00) (the "Initial Deposit"). The fnitial Deposit shall be credited against the Purchase Price at Closing. The Initial Deposit shall oJ be refundable for a period of six (6) months from the date of this agreement. . 3.. ADDmONAL DEPOSIT. ff, upon expiration of the Feasibility Study Penod set forth U1 Paragraph 5 below, the Purchaser elects to continue this Contract in force, Purchaser shall deposit with an Escrow Agenr an additional check (the "Additional Deposit") in the amount of TWENTY FIVE THOUSAND DOllARS ($25,000.00) The MAY-20-94 FRI 07:08 L B SMITH INC I 1'j , Initial Deposit and Additional Deposit will then become non-refundable except as provided in Paragraphs 12 and 14. The Initial Deposit and Additional Deposit may be refemd to herein collectively as the "Deposit". 4. WAIUlANnEs I\ND REPRE5ENTAnO~S. Seller does hereby Warrant and represent to PurchllSer: a. That seller owns good and marketable fee simple title to the propeny. free and clear of all liens. mortgages or deeds to secure debt. except those which will be paid in full at closing; b. That the Propeny is not subject to any restriction on use, lease, sublease, license, right of use, or claims of tenants in possession, and is not subject to any contraCt or options, and that during the tenn of the Comrnct. Seller will not lease or Convey all or any portion of the Property, Or any interest therein, or enter into any agreement granting to any person any right with respect to the Propeny, or any portion thereof without the priorwnnen consent of Purchaser; c. To the best of Seller's knOWledge, infonnalion and belief, the Property has not previously been used as a landfiJJ, as a dump for garbage or refuse, or as a Storage or disposal site for hazardous Waste and fUrrher~ that Seller, its affiliates, representati~and agents, are not presently using, storing or dispOsing of hazardous substances On the Propeny, nOr have they used, stored or disposed of hazardous SUbstances On the ProPerty in the past and have no actual knOWledge that hazardous SUbstances have ever been used, Stored or disposed of on the Property, all within the meaning of any ~1'vV P""".l.&a.. ~ La", mru.., '.w, _", ""'~ ""', .......don, 0"'" ~ or decree regulating, relating to Or impOsing liability or standards of conduct concerning any hazardous substance, at now or at any time hereafter in effect. d. That all contractors, subcontractors, laborers and materialrnen Perfonning work upon or furnishing labor and materials to improve or benefit the Propeny at Seller's request have been or will be paid in full by Seller. Seller will execute thl!! necessazy affidavits and indemnities required by the tide insurance COmpany to eliminate from its owner's title policy any exception for unfiled mechanics liens. .2. MAY-20-94 FRI 07:09 L B SMITH INC FAX NO. 717+7318325 p, 04 e. Seller wlUTants that the Property has fronrage to the public road located East of the Propeny, being Mushroom Hill Road and frontage on Route 322. f. Seller possess all requisite power to enter into and perform this contract and to carry out the transaction contemplated herein. S. FEASmnnY STUDY PERIOD. Purchaser shall have the right within One Hundred and Eighty Days (180) from the date of the execution hereof by Seller, to enter onto the Property for the purpose of performing boring, engineering, topographic tests or marketing studies upon or of the subject Property. In the event that satisfactory leasing or financing is not secured, or if said tests or studies do not warrant, in the judgment of Purchaser, in its sole and absolute discretion, the development of the Property, the Purchaser shall have the right, in said period, to terminate this contract by written notice to Seller, and in such eVf'.nt, all parties shall be relieved of further liability and obligation hereunder. In the event that Purchaser does not give Seller notice within the required one hundred eighty day period of Purchaser's determination that development of the Property is not feasible, then Purchaser shall be deemed to have waived any further right to terminate this Agreement under the provisions of this Paragraph S. Purchaser shall indemnify and hold Seller hannless for any claims, liabilities, actions and expenses (including attorney's fees) against or incurred by the Seller as a result of the activities by the Purchaser or its agents, employees or invitees, on or about the Propeny. Seller agrees to deliver to the Purchaser, prompdy upon request therefor by Purchaser and free of charge and cost to the Purchaser, all engineering and architectural data, tide and other information in Seller's possession, heretofore caused to be prepared by third parties with respect to the subject Propeny. 6. 1Tll.B OBJEcnONS. On or before the expiration of the Feasibility , Study Period Purchaser shall deliver to Seller a written statement of objection, if any, to Seller's tide to the Property. and Seller shall have fifteen (15) days after receipt of such objections in which to cure or remOVe the same. Seller agrees to use its best efforts to clear the title as hereinabove provided. The time for Closing hereunder shall, at the option of Purchaser, be extended (or the purpose of curing or removing such objections, but in no Wn...lf~' event for a period in excess of thirty (30) days. In the event Seller fails or refusep!to c;ure~ or remove any objections which are not liens, mOrtgages or deeds to secure de~t, then Purchaser shall have the,option, within fifteen (15) days of Seller's notice to Purchaser of .3 . MAV-20-94 FRI 07:09 L 8 SMITH INC FAX NO, 717+7318325 P,DS Seller's inability or unwillingness to cure or remove such objections, to waive such objections and close the purchase and sale provided for herein or declare the Contract null and void, in which case the Initial Deposit and the Additional Deposit shall be returned to Purchaser and neither party shall have any further liability hereunder. If Seller shall fail to cure or remove any liens, mortgages or deeds to secure debt to which Purchaser has objected, then Purchaser may either (i) close the purchase and sale hereunder and apply all or a portion of the Purchase Price to satisfy such encumbrance; or (ii) require the immediate return of all sums paid hereunder, and Purchaser may then avail itself of th~rv. right of specific perfonnanc~ ~. The Property is to be sold free of encumbrances except as aforesaid; tiele is to be good of record and in fact, fully insurable by a title company of Purchaser's selection, merchantable and marketable, at ordinary rates. 7. CLOSING. Closing hereunder shall take place on or before the earlier of (i) the date which is five hundred forty (540) days after the effective date of this Contract, or (ii) the date which is thiny days after all Conditions of Closing, as defined herein. are satisfied. TIME IS OF THE ESSENCE. If the Purchaser shall fail to close, unless entieled to do so pursuant to provisions hereof, Seller shall retaLTl the Deposit herein provided as fixed and liquidated damages, and Purchaser shall thereby be relieved from further liability hereunder. In the event Seller defaults hereunder, Purchaser shall have the opdon to (i) ternUnate this Agreement and receive a refund of the Deposit herein provided or (ii) bringing an action for specific performance. Closing is to be made in Dauphin County, PeIUlSylvania at the office of the Escrow Agent. Deposit with the title company or attorney the cash payment as aforesaid, the deed of conveyance for execution and such other papers are required of either party by the terms of this Contract shall be considered good and sufficient tender of perfonnance of the tenns hereof. It is agreed that, if required, funds arising out of this transaction may be used at Closing to payoff any existing encumbrances. The Property is to be conveyed in the name of Purchaser or assigns and Purchaser will order the examination of title and the preparation of all necessary conveyancing papers, and agrees to pay the title company charges, tax certificates, and notary fees, if any; provided however, that if upon examination the tiele should be found defective, ~d it is not x;emedied as aforesaid, the Seller hereby agrees to pay any and all above mennoned costs Incurred. Transfer and/or recordation taxes and srate and counry charges for recording deed shall be assessed one half (1/2) to Purchaser and one half (1/2) ." - MAV-20-94 FRl 07:10 L 8 SMITH INC FAX NO. 717+7318325 P.06 to Seller. Any spec:ial fannland assessment tax, rezoning tax, development tax Dr recapture tllX Shllll be pllid in full by Scller. 8. RISK OF LOSS. Seller agrees to execute and deliver a good and . sufficient Special Warranty Deed with full cove~ts of title. The risk of I~ss or dl1mll8,~.f'1 to said Property by fir~ or other casualty until the Deed of Conveyance 1$ recorded 15 ~ assumed by Seller. 9. ADJUSTMENTS AT a.oSING. Rents, taxes, water rent, and operating charges are to be adjusted to the date of the transfer. Taxes, general and special, are to be adjusted according to the certificate of taxes issued by the collector of taxes. Assessments or notations thereof for improvements completed prior to the date hereof, where assessment therefor has been levied or not. shall be paid by the Seller or allowance made therefore at the time of transfer. Annual benefit charges and assessments payable on an annual basis are to be adjusted to the date of transfer and thereafter assumed by Purchaser. 10. MUNlCPAL NOTICES. All violations of municipal orders or requirements noted or issued by any department of any governmental body having jurisdiction Dr action in any court on account thereof against or affecting the Propeny as of the date of Closing of this Contract, whether disclosed by inspection required by Purchaser or not, shall be complied with by the Seller and the Property conveyed free thereof. 11.. POSSESSION. Seller agrees to give possession and occupancy at the time of Closing. All applicable provisions of this Contract shall be incorporated into the Deed either directly or by reference. After the date hereof, Seller shall not mortgage or encumber the Propeny without the prior written consent of Purchaser. Seller represents and Warrants to Purchaser that Seller has not made and will not make any commitments or representations to the applicable governmental authorities. or any adjoining or surrounding Property owners, which would in any manner be binding upon Purchaser or' interfere with Purchaser's ability to develop and improve the Propeny as contemplated by Purchaser, without first Obtaining Purchasets written consent. 12. CONDmONS OF CLOSING. Unless waived in writing by Purchaser, the obligation of Purchaser to purchase the Propeny in accordance with the provisions hereof is c>.'Press1y made subject to the following conditions: .5 . HAY-20-94 FRI 07:11 L 8 SHITH INC FAX NO. 717+731832b P,O"i a. The survey obtained pursuant to this Contract reflects that the Property contains no less than thiny (30) acres and abuts adjoining landowners, highways and beds or public streets at all points indicated on Exhibit "A" hereto and the right of ingress into and egress from the Property upon the right-of-way of said road(s) is not limited or restricted in any manner, except for required governmental approvals" for highway and street access. b. The representations, warran,ties and guarantees. given by Seller to Purchaser regarding the absence of contamination, real or potential, of the Property are true and correct. c. Within thirty (30) days from Effective Date. Seller shall prepare and file an application with Swatara Township to subdivide the Property pursuant to a plan reasonably approved by Purchaser, from the larger tract of which it is currenrly a part and shall provide, at no COSt to Purchaser, an access road along the frontage of the Property as shown on the attached Exhibit "B" (the "Future Road"). Said Furore Road shall be designed in accordance with the specifications of the Swatara Township and/or the Pennsylvania Depamnent of Transportation as applicable. Purchaser shall prompt!)! ~c~ve copies of the approved construction plans. the pennit(s) and '-,A\11.. nA);t bond(sJA~ c'bnnection with the Furore Road Construction. The Future Road ~ shall be appropriately dedicated as a public roadway on the recorded~ subdivision plan and the,m:cgU'!lJ:.securiry for the construction of the Future Road shall be provideclA'to incraccepted by SWBtara Township prior to Closing under this Contract. When obtaining subdivision approval, Seller shall not be obligated to pay the cost of any improvements which are not to ~ be located on the Prop~~A certifie copy of the recorded Deed of Sub- , d1vi,iQn together With the epDroved plJt reflecting ~ll cond1t~ons of subd1v1sion shal be delivered to PurChaser within 10 days of 1ts recording. d. Seller shall provide. at no cost to Purchaser. access to water. sewer. telephone service and electriciry at the property line of the Property , or in the right-of-way of a public street or highway adjoining the Property. e. Seller shall join in the execution of any and all documents reasonably necessary to fu1fill the conditions precedent set forth in this Contract. so long as Seller dol!!. not incur any cost or liability in doing so. . .,t. The Property is served by sufficient utilities (including. without limitation. water. natural gas. sewer and electricity), within or adjacent to - 6 - MAY-2U-94 FRl 07:11 L B SMITH INC FAX NO. 717+7318325 P. 08 the Property in the right-of-way of an adjoining streets, to operate satisfacrorily a commerciaVretail center; and, g. The Property is zoned {or a commercial retail center which zoning shall permit the construction and operation of a shopping center. h. Building permits and approvals to construct a building or buildings of no less than 200,000 s.f., and three outpucels have been issued or are readily available. If these Conditions of Closing are not true or have not been satisfied by the date of Closing, then the Purchaser shall have the right ro declare this Contract null and void and to forthwith receive a refund of the Deposit, provided that with regard to subparagraphs 12 f. and g., Purchaser shall notify Seller within the one hundred eighty (180) day feasibility period under Paragraph 5 if these contingencies are not met, if Purchaser does not provide Seller with such a notice within the 1 BO day period, then these two contingencies shall be deemed to be met. 13. PURCHASER'S DILIGENCE. Seller no larer than forty.five (45) days after the expiration of the feasibility period provided in Paragraph 5 shall file with Swatara Township a Land Development Plan for the Property and shall thereafter use its best efforts to obtain and continuously and diligently pursue the applicable municipal, county and state approvals for the development of the Property and the issuance of a building permit for the construction of improvements on the Property. Purchaser shall, ar the request of Seller. but no more often than evety rhirty (30) days, provide Seller with a written report of the status of the Purchaser's efforts to obtain the required governmental approvals for the developmenr of the Property. 14. CONDEMNATION. In the event that at the time of settlement all or any part of the Property is (or has previously been) acquired, or is about to be acquired, by authority of any governmental agency in the exercise of its power of eminent domain' or by private purchaser in lieu thereof (or in the event thar at such time there is any threat or inuninence of any such acquisition by any such governmenral agency), Purchaser shall have the right, at its option. to terminate this ConD'act and recover its Deposit hereunder, or to purchase only so much of the Property not condemned or under threat of condemnation, in which event the Purchase Price and terms shall be adjusted accordingly. IS. WAIVER. Any condition or contingency herein contained shall be deemed to be for the benefit of the Purchaser and may be waived by Purchaser at anytime. - 7 - MAY-20-94 FRI 07:12 L B SMITH INC FAX NO. 717+7318325 p.oe . .. . 16. NOTICES. Unless otherwise provided herein, whenever no lice i.s 10 be given under the tenns of this Contract, such notice shall be deemed to have been giVen when enclosed in an envelope having the proper postage, addressed to the Sell.er or Purchaser, as the case may be, and deposited in the United States Post office or mailbox. The date at which notice shall be deemed to have been given shall be the date of the postmark on said envelope. ' 17. JURISDlCfION. It is the intention of the parties hereto that all questions with respect to the constrUction of the Contract and the rights and liabilities of the parties hereunder shall be detennined in accordance with the laws of the State where the Property is locllted. 18. NOTICES. Any date spedfied in this Contract which is a Saturday, Sunday or legal holiday shall be extended to the first regular business day after such date which is not a Saturday, SWlday or legal holiday. 19. BROKERAGE. Seller and Purchaser each represent and warrant to the other that, except as hereinafter specifically set fonh in this paragraph, il has not authorized any broker, finder of consultant to aCt on its behalf in respect to the transaction contemplated hereby, and that it has dealt with no broker, finder or consultant in connection herewith. Each of the Seller and ?urchaser (the "indemnifying Party") shall indemnify and save hannless the other fonn any claim by any broker, finder or consultant or other person for commissions or other compensation for bringing about the transaction " contemplated hereby where such claim is based in whole or in parr on the purporred employment or authorization of such broker, finder, consultant or other person by the Indemnifying Party, and from all expenses of the other in resisting such claim, including, without limitation, reasonable attorneys' fees. Seller and Purchaser hereby specifically acknowledge and recognize LMS CommerciaJlIndustrial Real Estate as the broker bringing about this transaction. Seller agrees to pay broker a commission pursuant to a separate agreement. 20. MlSCELI.ANEoUs. The prindpals to this Contract mutually agree that it shall be binding upon them, each of their respective heirs, executors, administrators, successors and assigns, that the provisions hereof shall survive the execution and delivery of the deed aforesaid and shall not be merged herein, for a periOd of one (1) year from the date of Closing, that this Contract contains the final and entire agreement between the parties hereto; and, neither they nor their agents shall be bound by any terms, conditions, statements, warranties or representations, oral or written, not herein contained. .8. MAY-20-94 FRI 07:13 L B SMITH INC FAX NO. 717t7318325 P.IO . '1 . . .. 21. EPFBCl'IVE DATE. This Contract is null and void unless ratified by all parties on or before the 28th day of April. 1993, which date is established and accepted as the final date of ratification by all parties to this Contract. The said date, unless modified, shall be the date for commencement of all time periods herein set forth. We, the undersigned, hereby ratify, ac:c:ept and 'agree to the above agreement and acknowledge it to be our Contract. 5 COMPANY OR ASSIGNS, Donald R. H The Evans C pany 8283 Greens oro Drive, Suite 200 McLean, Virginia 22102 Telephone: (703) 893.7500 Fax: (703) 893-0617 Tax 1.5. 52-0964264 L. B. SMITH, INC_ a Pennsylvania corporation By: I~ ~ad Tax I.D.: 23.1099090 Address for Notices: Fax: 717 731-8325 .9- MAV-20-94 FRI 07:13 L 8 SMITH INC FAX NO. 717+7318325 P. II . .. .. . .. .. ~ I . BR.OKER LMS R.EAL'lY 3718G1APri\22. 1m ~~ '~"lJJl, Ie, 'iliJ. OOA.J..,( ~- 1891 Santa Barbara Drive/Suite 201 Lancaster, PA 17601 Phone: (717) 579.9373 Pax: (717) 560-9909 Attachments: Exhibit A Plat identifying Parcel Exhibit B Future Road Plan .10. . ~'-'\ .; '. ~; ;'r~'c ' ;,.;( ;".:~~.:"; ;~:/)f(/ :'p~,l" ._.._.~..,,'~....,; ,~A!I,~I>","J..Jv.i~l",~itJ;ffi.'PI.-,~r' ~'"'''-" ""~"_.'''''-' -,-........,..,-. .... (f) ,:"-:: "'~- :"'}~';'-'~' ..~~'<~' ;-/Wf- -i{t"-o",..;',. - ,,-.., ;~,',. "'~~'~;: "11 ok-'_ '. " :." ,...' ,\FflCE ~FU:;;,:;,rlt()THONOTAnY . ".._nlf.~(J en nN!i$YLVM;I~!lTY IlHZ3 3 ~2 rll'9~ ..";'l:l~- , --""j" "r~J~w ~ ,~' :;":.r' ~ ....'~ } ,,>' '~'1"'" ','/ A"";" ~""'.\~'~ ~ ".!,;'}i-.;.:l:':L';; - ~.:~!rr~': rf! 40. 50 ~ 5.00 ~.~ ~ t:# i./s. 60 #&g--. , -, , - ~. 1".'.;'. _ . 'r~i~;,:\.(J~~~~,~- ,',"-' ~~~.. ..~-< " \"" c~.* ClQ.5 'f fLr-pl, #- 10 (0 So " ;\./11\.)0;) r\ZL-, ") \: :' ~' ~',~ t1 r~~~"1 "I. ,--~~'-"~1 , - / ' f.' -~1; , ',-. ;,'_-"--::-'""-,:-::-r:_:;-.r , T ,.1',:1':-:;'::' 'i ,':'(~ ;,,' . '. " , .' , , >' , - ... , I :"rr~""--":,~-,,,,' .."'!'-........ ......,.....,.... -' ...' /,\4 ~' I' I. I SMITH LAND & IMPROVEMENT ) IN THE COURT OF COMMON CORPORATION, ) PLEAS - CUMBERLAND COUNTY. ) PENNSYLVANIA Plaintiff. ) ) v. ) No. 94-2753 Civil ) THE EVANS COMPANY, ) ACTION FOR DECLARATORY ) JUDGMENT Defendant. ) ANSWER AND COUNTERCLAIM COMES NOW Defendant, The Evans Company (" Evans' ). by its counsel. and answers Plaintiff's Complaint as follows: 1. Evans admits the allegations of paragraph 1. 2. Evans admits the allegations of paragraph 2. 3. Evans admits the allegations of paragraph 3. 4. Evans admits the allegations of paragraph 4. 5. Answering paragraph 5 of the Complaint, Evans refers to the contract itself for a full and complete statement of the purchase price. 6. Answering paragraph 6 of the Complaint, Evans refers to the contract itself for a full and complete statement of the monies to be deposited with an escrow agent. 7. Evans denies paragraph 7 of the Complaint. and affirmatively avers that the deposit was refundable for an initial period of six months, which was twice extended for a total of two months by agreement of the parties. B. Evans denies paragraph B of the Complaint, and affirmatively avers that the contract was terminated within the time period specified in the contract, as extended by agreement -1- of the parties, and therefore, Evans was entitled to return of its $25.000 deposit. 9. Evans denies paragraph 9 of the Complaint. and affirmatively avers that the contract was terminated within the time period specified in the contract, as extended by agreement of the parties, and therefore, Evans was entitled to return of its $25.000 deposit. 10. Evans denies paragraph 10 of the Complaint, and affirmatively avers that the contract was terminated within the time period specified in the contract, as extended by agreement of the parties. and therefore, Evans was entitled to return of its $25.000 deposit. and so advised the escrow agent. 11. Answering paragraph 11 of the Complaint. Evans admits that there is a dispute between the parties with each party contending it is entitled to the $25.000 initial deposit. and joins in asking the Court for declaratory judgment. AFFIRMATIVE DEFENSES First Defense Plaintiff is estopped by its own words and conduct from denying its extension of the contract and seeking to recover Evans' deposit. Second Defense Plaintiff has waived the right to recover Evans' deposit. -2- COUNTERCLAIM As and for its Countercla~m, Evans alleges as follows: 1. Evans incorporates paragraphs 1.2.3.4, and 11 of Plaintiff's Complaint. which allegations are admitted and affirmatively averred herein. 2. By agreement of the parties. Evans was entitled to return of its $25.000 deposit if it gave notice of termination of the contract within the feasibility period established by the contract. 3. By agreement of the parties, said period was extended to December 28, 1993. 4. Prior to expiration of the feasibility period, Evans gave notice of termination of the contract and, therefore, is entitled to return of its $25.000 deposit. WHEREFORE, Counterclaimant Evans requests that the Court enter the following judgment: a. Declaring that Evans is entitled to return of its $25,000 deposit. plus accrued interest. b. Declaring that Plaintiff shall be required to reimburse Evans for its reasonable costs and attorney's fees incurred in connection with this action. c. Granting such other relief as the Court determines is just and proper. -3- THE EVANS COMPANY By Counsel ~ ')J.$~ l- ~.BUcci ,- (Pa. Bar No. 53434) WATT. TIEDER & HOFFAR 7929 Westpark Drive Suite 400 McLean, Virginia 22102 (703) 749-1000 CERTIPICATE OP SERVICE This is to certify that on the 13~ day of June, 1994, a true copy of the foregoing Answer and Counterclaim was mailed, postage prepaid, to Jack F. Hurley. Jr. and Jesse R. Ruhl, Esquire, One South Market Square, P.O. r 1146. Harrisburg, Pennsylvania 17108-1146. ~ L ~-- TimothY~' Brown -5- -+ :-;"~7~:':'';: ;;, .~-" ,_,~;;i~~~1,~~,.~~~1'~",j~~~);\;~. ~ -'.!-''' . l.UI 1!-1>1"-1llIV '. ...--,....._,_. -----, -_._...-..~-_.----- 12 01 fK '9~ Juull\ ,.' t;"ofFlce 01 1:::,>"" filOHOTAhY CUI' :,;,U.li\) r.O'J!iTY i':::in ;'j-iL'iPilA . ':~l'l :v: l' \ ,t. -', .... . ...:'" >"'" >'-,--'0".,..".. ,';..-' ~ . .T' ._' .'- -'~'~ < . .;~!:~. '." " -. " " .-~- 1 '. . ~ ;..l'!'; ~, .~!..~ -,- , PRAECIPE FOR LISTING CASE FOR TRIAL (Must be lypewrlllen and submitted In duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY (Check one) Please IIstlhe lollowlng case: lor JURY trial at the nexl term 01 civil court. X lor lrlal without a Jury. . ............................................................................................................................................................................. CAPTION OF CASE (entire caption must be slaled In full) (check one) Assumpsit Trespass Smith Land & Improvement Corporation, Trespass (Motor Vehicle) (Plalntlll) ( X) Action fOl'..DeclaratorY..-!!Jjgment (other) vs, The Evans Company, The lrlalllst will be called on .August 15,....l995___. and __._________ Trials commence on ~Qpl~mber 18->-..ill~._. . (Delendant) Pretrials will be held on_~ugys.t..~3. 1995.. ___ . (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 214.1.1 vs, No. n~:? Civil 1994 Indicate the attorney who wllllry case for the party who Illes this praecipe: Jl1sse R.. R!1hl, Esquire _Rhoads_~ Sinon,-1.~Cl,_~lllrlse! .~(L., .!.?t.hFl.!.!, l!!lEx:i!}burg, P'A l7!OI . (7P) .23..3.-,57~1 Indicate trial counsel for other parties II known: _Jo~eJlIl.Il. Bucci. Esquire. _Sa~!~.Makoroff _~ 9us~y, ,P'.l:" 7tl~_~1.r..!J!.~ck .Building. PittsbuEgh. PA 15219-6003 J41~1 ~7.!:4~9~_ .. This case Is ready for trial. Slg"d (k//Z/L/-o Print Namo/' Jesse R. Ruhl Attorney for: Plaintiff Date: July 13, 1995 \ j:;_",(,l -; ,,~ . .::;:'i'~;ik.,;,~~:",'<;,i~"d~~?;' t~>;,'.,:~ " ' ..~.~j~J,~~i_.~:r_,.;Ji~;,,:~~'-~itt:~1f/,;~~~t~~: . .~.. .T~.II) ,"'JJ;~Jt-1IA'l1J'_i!'11.A ~~l~~, ! J);V'~~~, ~J ,~~1~1ll/ .., ._li"r.n;,,";"~b, :t .. ~ .., " ' [~ '.l .. "J; .~ '~I ..1 '.,,:,' . .~-\:. ._.i w '" . /, " ~;. JUL'I~~ 3 Ol rK '95 , ' ~~. ~.~~&~" . _d: " . ::.(.;c'ofFIcr or ~iHtl f(;.lI!ON~TAhY ~U\.WFr;c.\~o C~','~TY ''''~'j''S it V~~"PA f' ,'" { ,J~Z . .- .rs . ~'7\~ /1. ~- ,; '" ~.; .,~'';: , .' J~ . '(0, ,"- . "~. ." {;.,;,- ''>11 . (,".- ,-<-,- ,i:':J.:.., . :~'?-' ' .. :,~.: J~_ ~>~, , -,~~ , : ~:: ;~" ; --~~., "''''- ~v___" --,--....~- - t'~.. i-I - t<. . ..-' ,. ,.~. --,.,-'- ':';,,'-, :~%;. ~,';~_: ;:~ -.';~~:~r:- ;"" o " " -"c: }, '''. v ',:' ,',' y::. -6:' l~: . ,.<,.oj ';;:t -,0;. .[f. " ;~.. ' ,;; ," "'^,'-- -- ...., " " .:~ '" ~~:-t ,- .' . i ~ " " ~~ rJ " - ~- t.> ::;,' -',' E., "' '" -,!<,<: ;' ,:~\~ r " '-". <," ," " , " "'.____.~ t' ~r.l:lll:"r ~"ua _.....,,--,,-- .~'lI~ rif ~'~n'-1' - ,. , ~, .. ',' , . I . ..~.. d, ,:r rl,O~ l_!. :',," f'f:; ~ . , ~, .. t" .,"'.: '.r ~.., ., ~ .-; \.,- .. ,- t:':- ~; , >(. ,..:) r.' i' ...._~' '. '" L' ~ .t_;.,-l;/ 4;I'I ' -.,< ,It "': "A _.,..r;:~" ~ ,~~l~: ",...,,,,j ':" I , " }'! '. b.' -..,; {~ '()'~' ,r; , ~'::1 ~" : " ::.~ , :,; -.G ,.., h ",' :;-;:.i, ~! ":~.>: ~' .;;,~, " '~.'.t:-, '.' ~. ~ -'-,,'.! .'P'O"lpo..._. -' fl' ...:~" ii~':.' ',' ~: .,..' t' _'l"""'-'" "\ --.- ! ,-' ._1\ ~,,\ ' ",;.' ',- ,'>,- 'f'~ -t.--- fl' f'~-:,';', l,_f ~~', ,-, l,;':"";;' .t.;,;,-',. ",- '." Of".__. .,...., ~.' H' \". ., 10-:,,'" P' ~~., .;!' ~: ~"'- - "'~. ~, ,~. ~'f ,;{, ~' '"-'....' , ~<-: ' ." '" .>',.:.' " ", .' " ;. ." s' -"::'1 ,"., , j ~.:' ,t" ">, ,-" , ~;.'" - 11' "!' " " " . ',__c ... the escrow funds, together with any accrued Interest, being held by the Lawyers Title Insurance Corporation (Case No. RIC-30681) pursuant to a May 17, 1993 Escrow Agreement, shall be delivered to Smith Land c/o Jesse R, Ruhl, Esquire, Rhoads & Sinon, One South Market Square, 12th Floor, P,O. Box 1146, Harrisburg, PA 17108; 4. That upon delivery of a fully executed counterpart of this Stipulation to the Lawyers Title Insurance Company, the escrow agent shall release all of the escrow funds with any accrued interest to Smith Land at the address referenced above; and 5. Upon receipt of a counterpart of this Stipulation executed by the attorneys for The Evans Company, counsel to Smith Land & Improvement Corporation will execute this Stipulation and present it to the Court for entry, and take all steps necessary to render the above-referenced matter settled, discontinued and ended. os & S1U SABLE, MAKOROFF & 1 i ',..-,'1- t~ , urley, Jr, e R, Ruhl o South Market Square P.O, Box 1146 Harrisburg, PA 17108-1146 717/233-5731 Joseph H. cci I . Seventh Floor, Frick Building 437 Grant Street Pittsburgh, PA 15219-603 412/471-4996 Attorneys for Smith Land & Improvement Corporation Attorneys for The Evans Companv Approved by the Court: jF/I;.L 'j (<; 1 J- , a..1"'~ J. 41980.' W1'110424 01 .','. .,j-, ,"'-,' .~ , ',. f ~:"-," :__~1i.-~-";'~Q;i;-.l ;,... ~- j ...-J, ,,', . c,: ;~l'\~lii';,;':!*(' <, >"',,' ; ~;::.,",}i~1:'';};'/ '('':'~,i. __,. ,,'uJ... -I_"",,...,...u.r.;,;.1i.~ ~~ "";.;~~ ,.\, . it" ,,!,t:,;)el~~<, ,h', ~' ::~ ". l-::" \, ? ~~~ :~;';,~~1.i/.':;' ~ ;~': :(y~, ,,' ,'- ::"~~~tf~~~'\;/,,,,-;-~- "''''':'j! ,..,IS i:~If:tl "i,,;~':"'l~(,,4{..,.., ',_' ,~tI;',~:::~;(. ~fc \,::':, .~'!k_"~;"",,;o:,;;,,\,, -':I.: . ~~i}f :::'~f ;:' '),t; _.~~ ;.:.. :"~'~'"' -.:~;. '.~ "\' , i1:.., . . ~~ ' j ~;"^ \* q '.. I':~: ,"~ , ,i~,~t A. - ';'(. ',;r~(',,' ,,~,.., " . " ",7', -'. ,:$ ~;' ;.f~. ,s"'- '" "';'~ ~: .':,~.: ~ .- " ~ " -'_"'tt .~ t';-. ~ -.....-- . -,_.._~...,--~_..... --~......_..... ",-~~-.....,...-..~,...,- ~ _.~- I ".-~_.. @ .;. 'J', .;:-. ~"';;~, ,,' ,. ,,) I"~ I" ,~: 3'~._'"'' Oll,,_ ,~S JUl3 t~~ \ {\ '~{::: c" OH\C~' T'C "'..1\lOllttTlofo.'i r>illf ,IH ,r'lu'. "(lU'-'1t . C\JI4~t\(' ~;w v' .. 'i'l'.iIlIStl.'/:.l\\!' ::. ~l ' ":' ~ , t:r ,,:. c ,~ " ", >' " "'! ,(\' C' " r:- ',:, ,~,: ".'- ',..- i1l>-~'- ~ 8/y./9,r , ....... 'F' '. ~, - . .-~" ~(" r~ ff, ".. :t;'> 'j~~'~, ,i-; ,,~". "i5 !t'M '''-YV "~J" 17 r," - ';"~ ,"h' ,fi .~ '.~' !;:;lil' '~ti,: .e" ff:...: <',~$'- ~ < , J ! . ~ '" 1 /(~::. >~ I ',., " '- , /l. ,,__'t,~;,i,. ,- i!f' r yo"); [ ,_,.... I ~... , '7,. t \ ~', ! ;<.:X,, ~. , , 1 j' ,I . ". "M:' '. ~., .,,.!- j, ' ~. ," ~~:.; 'l:--";.~~ ; + f'''- " 37. SMITH LAND & IMPROVEMENT CORPORATION V THE EVANS COMPANY : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2753 CIVIL TERM ORDER OF COURT AND NOW, August 21, 1995, counsel having failed to call the above case for trial, the case Is stricken from the September Term 1995 triall/st. Counsel may rel/st the case for trial when ready. By the Court, C H rold E. Sheely, P.J. Jesse R. Ruhl, EsqUire Joseph H. Bucci, Esquire Court Administrator (V\C\,I.&.ci. Co~i(.S ~e. '3. ;;1.5 -"CO :br ._-~.'~' .(~ ,;.:,~1r. - ;;:"~'! .7-0'-' - .~~~>;. \'j;< , " -~ -_._,~....- -' ..~.,--~ '~"'~4L" '.!;:i~' "" ..~:";,"~:l'j.0Q'~~~~~~,i~;iP.'.~';;"';z~ r:i;j<' ,'"".;J.:.1ij,\fi>""q:""'_......~.,.;....w-~,;~S'~.~'~>~: . .,' ._~,--._-_....---.._-,-~-~---_..._-_..__. > '.. - ~t.'. Auc 28 9 lIfAH'9S: f1tEO'OffIOE OF lliE rROTHOHOTAr.V CUMBERLAND COUNTY PENNSYLVANIA ,',< ,;' ,~ :/' '. ',-. ; .-','. o '~. ~ .- ~ . T~' "'i"-:, ", ::,.., -~ "'"~:''''''' '"