HomeMy WebLinkAbout94-05827
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IN THE COURT OF COMMON PLEAS
or CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94- Sg:J- 7 CIVIL TERM
JOHN N. MALLIOS and
VASILIKI KALLIOS,
plaintiffs
WAGDI AHMED ELHARAS and
HAMDY ALY, individually and
t/d/b/a KEYSTONE DINER,
Defendant.s
.
COIII'.SBIO. O' JUDGIIIIII'1'
Pursuant to the authority contained in the warrant of
attorney, the original or a copy of which is attached to the
Complaint filed in this action, I appear for the Defendants
individually and jointly, and confess judgment in ejectment in
favor of the Plaintiffs and against the Defendant. for possession
of the real property described as follows:
ALL THAT CERTAIN tract or parcel of land situate in
Middle.ex Township, Cumberland County, Pennsylvania, bounded and
described as follows, to wit:
BEGINNING at a point on the northwest corner of U.S. Route
11 and Carolina Drive, as shown on the subdivision plan
hereinafter mentioned; thence along the eastern side of Carolina
Drive in a generally nort.herly direction, North twelve degrees
eleven minutes twenty .econds East, a distance of two hundred
.eventy-five and ninety-three hundredths feet (N, 120 11' 20" E.,
275.93') to a point; thence in a generally easterly direction
approximately South seventy-sev~n degrees forty-eight. minute.
forty s.conds East, a distance of two hundred thirty-four and
thirty-eight hundredths feet (8, 770 48' 40" E., 234.38') to a
point; thence in a generally southerly direction, South seven
degree. thirty-two minut.es zero seconds West, a di.tance of two
hundred fifty-six feet (S. 7. 32' 00" W., 256.00') to a point;
thence along the previously stated U.S. Route 11 in a generally
we.terly direction North eighty-two degree. twenty-eight minute.
four second. West, . distance of two hundred fifty-six feet (N.
820 28' 4" N., 266.00') to a Point, the Place of BEGINNING.
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IN THI COURT or COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94~;2'" CIVIL TERM
JOHN N. IlALLIOS and
VASILIKI MALLIOS,
plaintiff.
WAGDI AHMID ELHARAS and
HANDY ALY, individually and
t/cS/b/a KEYSTONE DINER,
Defendants
mll.La.!'" :to. c!olII'...ro. O. "UDa"_1ft :I. a.MlaIft'
1. The plaintiffs are John N. Mallios and Vasiliki
Mallios, husband and wife, who reside at 224 Heisers Lane,
Carlisle, Cumberland County, Pennsylvania.
2. Defendant Wagdi Ahmed Elharas is an adult individual
whose last known address is Conestoga West Apartments, Apartment
B4l, 280 8tonemill Road, Lancaster, Lancaster County,
Pennsylvania 17603. Defendant Hamdy Aly is an adult individual
whos. last known addres. is 1428 Bradley Avenue, Apartm.nt J-214,
Carlisle, CUmberland County, pennsylvania 17013.
3. Defendants Elharas and Aly trade and do busines. as
~.yston. Din.r, a P.nnaylvania general partnership with ita
principal plac. of buainess at 1803 HarriSburg Pike, Carlisle,
Cuaberland County, Pennsylvania 17013.
4. Th.re is attached hereto as Exhibit "A", and
incorporated by reference, a c.rtain Agreement of 8ale dated May
5, 1993, between Plaintiffs and Defendants.
5. The Agr....nt of Sale attach.d as Exhibit "A" has not
b.en assigned by .ither Plaintiffs or Def.ndants.
......
.~.
ARTICLES OF
AGRBEMENT or BALB
AGREEMENT, made this ,5"& day of ~/
1993, between JOHN N. MALLIOS and VASILIKI MALLIOS, of 224
Hei.ers Lane, Carlisle, Ponnaylvania, hereinafter (whether
singular or plural) called "SELLER",
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AND
WAGDI .J\JlMED !lLHARl\S and Hl\HDY A. ALY, both of 971 Fairmont
Avenue, Whitehall, Pennsylvania, 18052, hereinafter (whether
singular or plural) called "BUYER."
WITNESSETH: That the'parties hereto, for the consideration
hereinafter described, intending to be legally bound hereby,
agree as follows:
1. Bale and Purchase. SELLER, for the consideration
hereinafter mentioned, agrees to sell and convey unto the BUYER,
his heirs and assigns, and BUYER agrees to purchase and accept,
all that certain tract of land with the improvements thereon
erected, more particularly described pursuant to Exhibit "A,"
attached hereto and incorporated herein by reference thereto.
SELLER, for the consideration hereinafter mentioned,
agrees to sell and convey unto the BUYER, his heirs and as~lgns,
and BUYER agrees to purchase and accept, all those items of
fixtures, furnishings, equipment and personal property
(hereinafter referred to as personal prop~rty), identified on
EXhibit "B", attached hereto and incorporated herein by reference
thereto.
2. Purchase Price. In consideration whereof, the said
BUYER agrees to pay to the said SELLER therefor, the sum of six
lXann A
Hundred rifty Thou.and and noll00 ($650,000.00) Dollars, as
follows:
A. Forty Thousand and nollOO ($40,000.00) Dollars on or
before the execution of this Agreement of Sale, the
receipt whereof is hereby acknowledged by the SELLER;
and
,
B. The sum ot Eighty-five Thousand and no/100 ($85,000.00)
Dollars to be paid in monthly installments of Two
Thousand Seven Hundred Forty-two and 71/100 ($2,742.71)
DOllars, said monthly installments to be applied first
to interest at the rate of ten (10%) percent per annum
on the unpaid balance of principal, and tho remaining
portion of each such installment to reduction of
principal, said monthly installments to be paid on or
before the 5th day of each month, beginning June 5,
1993. A five (5%)' percent late charge shall be added
to each payment received after fifteen (15) calendar
days from the due date. Said monthly payments
aforesaid shall continue for three (3) years from the
date hereof, at which time the full unpaid principal,
together with interest thereon, shall be paid in full;
and
C. The balance of Five Hundred Twenty-five Thousand and
nO/l00 ($525,000.00) Dollars to be payable in monthly
installments of Four Thousand Seven Hundred Seventy and
68/100 ($4,770.68) Dollars, said monthly installments
to be applied first to interest at the rate of ten
(10%) percent per annum on the unpaid balance of
principal, and the remaining portion of each such
installment to reduction of principal, sald monthly
installments to be paid on or before the 5th day of
each month, beginning June 5, 1993. A five (5%)
percent late charge shall be added to each payment
received after fifteen (15) calendar days from the due
date. Said monthly payments aforesaid shall continue
for ten (10) years from the date hereof, at which time,
notwithstanding the amortization aforesaid, the full
unpaid principal, together with interest thereon, shall
be paid in full.
3. Allocation of Prioe. The full purchase price of Six
Hundred Fifty Thousand and noll00 ($650,000.00) Collars shall be
allocated as fol:ows:
2
Equipment, furnishings and
personal property:
Inventory:
Good will:
PRICE
$500,000.00
150,000.00
ASSET
Real estate:
,
0.00
0.00
4. Prepayment. BUYER shall have the privilege of paying
as much more than the required monthly installment of principal
and interest as he desires, and nothing contained in this
Agreement shall be construed to limit him to said amount. In the
event of a prepayment by the BUYER, SELLER agrees to apply the
entire amount of prepayment to the outstanding balance due and
owing on the CCNB BanK, N.A., Mortgage.
5. Taxes, Insurance, Assossments, Repairs and Charges. In
addition to the said monthly installments on account of purchase
price and interest thereon, said BUYER agr~es to pay the taxes
and municipal assessments, utility charges (if any), maKe all
necessary repairs to the premises, and keep in force not less
than Five Hundred Thousand and no/lOO ($500,000.00) Dollars of
fire insurance with extended coverage, with loss payable to the
parties hereto as their interests may appear. In addition, BUYER
shall acquire and keep in full force and effect during the term
of this Agreement liability insurance in an amount of at least
One Million and nO/100 ($1,000,000.00) Dollars for accident,
injury or death to anyone person or to property, and One Milli.on
and nO/lOO ($1,000,000.00) Dollars for accident, injury or death
to persons or property arising out of anyone occurrence, with
3
SELLER being named as additional insured. A copy of said policy
shall be provided to SELLER.
6. Place of payment. All payments shall be made to SELLER
at such address as said SELLER shall supply to said BUYER.
7. Possession. It is also agree~ between the parties
hereto that possession of said premises and the personal property
shall be delivered to said BUYER on the 5th day of May, 1993, and
that said BUYER shall be entitled to receive rents, issues and
protits therefrom from said date of delivery of possession,
subject to the conditions set forth herein. BUYER has inspected
the real estate and personal property, including the improvements
thereon, immediately prior to signing this Agreement, and accepts
said property in its present "as is" condition.
8. Alterations. BUYER agrees not to make any substantial
alteration of the condition of the premises, or of the buildings
thereon erected, without first securing the written consent and
approval of the SELLER.
9. Title. Upon compliance with the foregoing terms and
conditions and upon payment of the said purchase price in full by
the said BUYER, the said SELLER will, at his own proper cost and
charQ~, make, execute and deliver to BUYER a good and sufficient
Deed for the proper conveying and assuring of the said premises,
in fee simple, free from all encumbrances, dower and right of
dower, subject only to easements and building and use
restrictions and conditions vlsible or of record, such conveyance
to contain the usual covenants of special warranty and otherwise
<\
insurable by a licensed title insurance company at regular rates,
without exception.
Upon compliance with the foregoing terms and conditions
and upon payment of the said purchase price in full by the said
BUYER, the SELLER will, at his own pro~r cost and charge, make,
execute and deliver to BUYER a good and sufficient bill of sale
for all personal property being conveyed hereunder, free from all
encumbrances or claims of creditors.
10. Tax Proration and Transfer Taxes. Taxes for the
current year shall be prorated between the parties hereto using
the fiscal years of the taxing authorities as the basis, and May
5, 1993 as prorating date. When legal title is taKen by BUYER,
SELLER shall pay one-half (1/2) of the state and local transfer
taxes then in effect up to a maximum of Five Thousand and nO/100
($5,000.00) Dollars, and BUYER shall pay the remainder. If this
property is conveyed tv a third party at the request of BUYER,
then all transfer taxes on such conveyance shall be paid by such
third party and the BUYER, as they may agree, and none shall be
paid by SELLER.
11. SELLER's Right to Enoumber. SELLER reserves the right
presently or hereafter to mortgage or otherwise encumber said
premises provided the principal amount of said mortgage or
encumbrance, when added to the existing principal balance of the
CCNB Bank Mortgage, if any, does not excoed the remaining
principal balance due and owing under this Agreement, and
provided also that the principal balance on the said new
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fi~ancing shall not be due and, owing by a lump sum balloon
payment prior to 'the balloon payment obligation due and owing by
the BUYER to the SELLER under the herein Agreement. said future
liens, mortgages or encumbrances shall be satisfied by the SELLER
prior to the time of final settlement. 'There presently exists an
unpaid Mortgage relating to the subject real property, to wit: a
Mortgage from JOHN N. MALLIOS and VASILIKI MALLIOS to CCNB Bank,
N.A., dated June 6, 1991, recorded June 7, 1991, in the Office of
the Recorder of Deeds in and for Cumberland County in Mortgage
Book 1016, page 306, in an original principal amount of Three
Hundred Thousand and nO/100 ($300,000.00) Dollars, which Mortgage
is subject to call on or after June 10, 1996. with respect to
said Mortgage, SELLER agrees to make proper disposition of
payments as follows:
a. Upon payment by the BUYER to the SELLER of
the ~greed upon monthly payment of Four
Thousand Seven Hundred Seventy and 66/100
($4,770.68) Dollars, SELLER will immediately
apply all or a portion of those funds to make
the minimum monthly payment then due and
owing pursuant to the terms of the said
Mortgage with CCNB Bank, N.A.
b. SELLER further agrees that upon request of
BUYER, SELLER will provide written proof that
payment has been made.
c. In the event payment is made by BUYER to
SELLER and SELI.,ER does not make immediate
payment to CCNB Bank, N.A., as required
herein, SELLER hereby authorizes BUYER to
make the minimum monthly payment to CCNB
Bank, N.A., directly and to utilize any
payment so made as a credit against the
monthly payment of Four Thousand Seven
Hundred Seventy and 68/100 ($4,770.68)
Collars due and owing by BUYER to SELLER.
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d. SELLER aq~ees that SELLER will provide BUYER
with any notice of any kind or nature
whatsoever the SELLER receives from CCNB
Bank, N,A., relating to the aforesaid
Mortgage within one (1) week of the receipt
of the noticu by the SELLER.
12. Furnishings, Equlp~ent and Personal Property not to be
,
Removed. During the term of this Agreement no personal property
shall be transferred or moved from the premises. It is the
intention of the parties that the real estate and all personal
property be retained at the premises until payment of the full
purchase price is made. Nothing herein shall be construed to
prohibit the consumption or Use of inventory and other
consumables, however, 8U"ERS agree to maintain an adequate
inventory and quantity of other consumables at all times.
Further, nothing herein shall preven.t BUYER, upon notice to
SELLER, from replacing any equipment, furnishings or other
personal property so long as the same is replaced with an itemes)
of like kind and vdlue.
13. Covenants of BUYER. BUYER promise, covenant and agree
as follows:
A. To maintain the premises and personal property in as
good a condition as they existed at the time of
settlement and to make all necessary repairs thereto.
B. To conduct, all busirless operations in conformity with
all of the laws and regulations of the Commonwealth of
Pennsylvania and its administrative agencies and
political SUbdivisions.
C. To make timely payments of all taxes and charges
arising out of the operation and conduct of the
business being purchased herein.
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To promptly pay all installment payments du~ and owing
to the SELLER as partial considaration of this
Agreement.
E. To do nothing that will jeopardize the security of the
SELLER with respect to the conduct of the business and
the physical condition of the premises or personal
property.
D.
14. BUYER, at his expense, shall cause UCC financial
statements to ba filed in the Office of the Prothonotary of
Cumberland County and the Department of State of the Commonwealth
of Pennsylvania providing SELLER with a security interest in all
personal property being conveyed herein.
15. Bankruptoy or Insolvency of BUYER. In the event that
BUYER shall be insolvent and unable to pay his debts as due, or
in the event that BUYER shall file a Petition in Bankruptcy, or
in the event that a Petition in Bankruptcy is filed against him
by a creditor, such act shall constitute a default under this
Agreement and SELLER shall have all of the rights granted to them
by this Agreement to pr.oceed or recover possession of the entire
property and all rights and privileges granted hereunder.
16. Breach by Purchaser: Remedies of SELLER. In the event
BUYER shall fail to make said monthly payments as aforesaid for
the space of thirty (30) days after the sam0 shall have become
due and payable by the terms hereof, or if a breach of any of the
other foregoing conditions be made by the BUYER and not cured
within ten (10) days of receipt of written notice from SELLER of
said breach, SELLER, at his option, may:
a. Declnre a forfeiture of BUYER's rights
hereunder and cancellation of this Agreement.
On such election, all right, title and
B
interest of BUYER hereunder shall cease and
determine, and all payments theretofore made
by BUYER shall be retained by SELLER as
liquidated damages and as rental for the use
and occupancy of the real estate and personal
property, and, in such eveht, the
Prothonotary or any attorney of any Court of
Record of Cumberland County is hereby
authorized to appear for and ~onfess judgment
in an amicable action of ejectment and
replevin against the said BUYER, his heirs,
assigns, executors, admin~strators or
lessees, and in favor of the SELLER, his
heirs, assigns, administrators and executors,
for the premises and personal property herein
described, and to direct the immediate
issuing of Writ of Possession with Writ of
Execution for costs, including an attorney's
fee of ten (10%) percent of the unpaid
balance of the purchase price, without notice
and without asking leave of Court;
b. In lieu of declaring a forfeiture, accelerate
and confess jUdgment, or accelerate and bring
an action for the balance of the pu~chase
price remaining due, or for any other relie!
available in law or equity, including suit to
recover any payment or payments made by
SELLER and repayable by BUYER hereunder, it
being stipulacea and agreed that such
obligation to repay is a separate and
independent covenant of BUYER hereunder. No
action to recover any payment or payments so
made by SELLER shall constitute a waiver by
SELLER of his right to proceed otherwise with
respect to any subsequent default. BUYER
hereby authorizes any Prothonotary or
attorney to appear for and confess judgment
against the BUYER and in favor of the SELLER
for the entire unpaid balance of the purchase
price, together with costs, interest,
insurance payments, etc., and with ten (10%)
percent added as an attorney's fee.
17. No Waiver. Acceptance by SELLER of any of the
aforesaid monthly payments after the same shall have beoome past
due and in default, or any failure to enforce any of the rights
herein reserved to the sreLLER, or any of the penalties,
9
forfeitures, damages or conditions herein contained, shall not in
any wi.. be considered a waiver of the right to enforce the same
at any time, without notice whatsoever, and any attempt to
collect the amount due by one proceeding shall not be considered
a waiver of the right to enforce any of'the other proce~dings
herein contained, but all of the rights of the SELLER and all
forfeitures, penalties, damages and conditions may be enforced,
togather or successively, at the option of SELLER.
18. Amendment. No amendment or modification of this
Agreement shall be valid unless the same shall be in writing and
signed by both parties.
19. Entire Agreement. This Agreement constitutes the
entire agreement between the parties and supersedes any prior
written or oral agreements between them respecting the within
subject matter. There are no warranties, representations,
agreements, arrangements or understandings, oral or written,
between and among the parties hereto relating to the subject
matter of this Agreement which are not fully expressed herein.
20. Assignment. The interest of the BUYER in this
Agreement shall not be aSSignable, by sale, assignment, lease,
subleasing or otherwise, in whole or in part, without the prior
written consent and approval of. SELLER, and if such assignment is
attempted, all rights and remedies of the SELLER set forth
herein, or which the SELLER might otherwise have, shall
immediately accrue to the SELLER. Transfer of title by Will,
10
survivorship or by descent shall not be regarded as an assignment
requiring the consent and approval of SELLER.
upon payment in full of the outstanding present
Mortgage to CCNB Bank, N.A., the interest of the BUYER in this
Agreement shall be assignable with the consent of the SELLER,
which consent shall not be unreasonably withheld.
21. Reoording. This Agreement, or a memorandum thereof,
may be filed of record in any public office, as appropriate.
22. Time of the Essenoe. It is the agreement of the
parties hereto that time shall be of the essence.
23. Binding Effect. This Agreement is to extend to and be
binding upon the heirs, successors, executors, administrators and
assigns of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals, intending to be legally bound, on the day and year
first above written.
~~~~~~--
~ M {YU~~
Jo n N. Ma11ios
/}~~~j/ mt:~~
Va8iliki Malli08
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~' AG-. ""': !::: t .lIt:} ~ As
Wagdi Ahmed Elhara.
H~~~'~
Hamdy ~. ~ly
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EXHIBIT "B"
'I
CARLISLE RESTAURANT BgUIPHERT LIST
35 Tables
8? Chain
4 High Chairs
1 Nai~r..s S~ation
28 Sooth.. x 4 . 112
2 Sooth.s x 6 . 12
1 Salad Bar
1 Sharp Electronic !R-2396 Caeh
1 Sever age AIr Refrigerator
2 Soup Warmers
1 Toastmaster Bread Warmer
1 Sandwich Unit
1 Refrigerator
Kitchen
3 Gas steam Tables
1 4-Burner S~ove
2 a-Burner VUlcan S~oves
1 Broaster
2 Ga. Fryers wi~h2 pans each
2 Gu Grills
1 Bay Har! ne
1 VUlcan Broller
1 VUlcan'Conven~lon Oven
1 Convention Oven
1 2-Door Refrigerator
1 Hobart Refrigerator
1 Walk-In Refrigera~or
1 Walk-in Freezer
1 2-000r Victory Freezer
1 Hobart DiShwaSher
1 5/s Sink
1 Wooden Work Table
1 Sls Work Table
1 Hobart Chopper
1 Hobart Veal Tenderizer
1 S/s Sink
9 s/s She1vu
1 Hanltowic Ice Machine
1 Hobart Meal:. Sa1/'
J Globe Slice Har.hlne
1 12 'e.t Hood wIth An. uS Sy.lem
VarIous Pots and Pane
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IN THB COURT or COMMON PLIAS
or CUMBlRLAND COUNTY
PINNSYLVAl"IA
CIVIL ACTION - LAW
94-5827 CIVIL TIRM
JOHN N. IlALLIOS and
VABILIICI IlALLIOS,
Plaintiffs
WAGDI AHIIID ZL1IARA8 and
HAMDY ALY, incUviduaUy .nd
t/d/b/a KEYSTONI DINIR,
Def.nd.nts
.
.
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".%D&91~ O. ...vle.
COIIMONWIALTH or PINNSYLVANIA
COUNTY or CUMBERLAND
.
.
: SSe
.
.
AND NOW, THIS day of octob.r, 1994, I, Edward L. Schorpp,
I.quire, attorn.y for pl.intiffs in the above caption.d .ction, h.r.by
swear that I have ..rv.d a true copy of the Co.pl.int and Confe..ion
of Judga.nt in the above c.ptioned matt.r upon the followin91
Hamdy Aly
1428 Bradley Avenue
Apt. J-213
Carli.le, PA 17013
".9di Ahmed EIHare.
Con..tog. w..t Apt..
Apt. BU
280 Stone.ill Road
Lanca.ter, PA 17603
H.mdy Aly and Wagdi Ah.ed B1Haras
tla ~.y.ton. Din.r
1803 Harrisbur9 Pike
Carli.le, PA 17013
by d.e.o.itin9 the .am. in the U.S. Mail, po.tage pr.-paid, on Octob.r
I'~ ' 1994, by ordin.ry .aU .ddr....d to .ach Defendant a. ~.t
forth abov.. B~~ _'
Edward L. So orpp, Il.q.
Sworn and .ub.oribed ~o
b.for. .. on thia ,~~ day
of OCtob.r, 1994.
Mo~th~
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IIGINNING at a point on the northwe.t corner ot u.s. Route
11 and Carolina Drive, a. .hown on the .ubdivi.ion plan
her.inafter ..ntioned, thence along the ..st.rn .ide of Carolina
Drive in a g.n.rally northerly dir.ction, North tw.lve d.gree.
.l.ven .inut.. twenty ..cond. la.t, a di.tanc. of two hundred
.eventy-five and ninety-three hundredth. f.et (N, 120 11' 20" E.,
275.93') to a poin~' th.nc. i~ a g.ner.lly .a.terly dir.ction
approxi..tely South ..v.nty-..v.n d.gre.. forty-eight minute.
forty ..cond. la.t, a distance of two hundred thirty-four and
thirty-.ight hundredth. fe.t (S, 770 48' 40" E., 234.38') to a
point' th.nc. in a generally southerly dir.ction, South seven
d.gre.. thirty-two minutee z.ro seconds W..t, a di.tanc. of two
hundr.d fifty-.ix fe.t (S. 70 32' 00" W., 256.00') to a point'
thence along the pr.viou.ly stated U.S. Route 11 in a g.n.rally
w..terly dir.ction North eighty-two degree. twenty-eight .1nut..
four s.cond. We.t, a distance of two hundred fifty-six fe.t (N.
820 28' 4" W., 266.00') to a point, the Place of BEGINNING.
CONTAINING approximately sixty-five thousand on. hundr.d
four and twenty-five hundredths square feet (65,104.25 square
f.et) or on. and forty-nine acres (1.49 acres), more or l....
BEING Lot No. 2 on the approved subdivision plan for
Carlisl. Dev.lopment Corporation as recorded in the CUmberland
County R.cord.r'. Office on May 8, 1984, in Plan Book 45, Page
81.
BEING the .ame pr..is.. which C.P.S.H., Inc. a Pennsylvania
corporation by it. d..d dat.d June 5, 1991, and r.cord.d in the
Office of the Record.r of Deeds in and for CUmb.rland County in
De.d Book "0", Volume 35, Page 730, granted and conveyed unto
John N. Mallios and Vasiliki Mallios.
The .bov. de.crib.d premises i.s improved with a restaurant
known .. and number.d 1803 Harrisburg Pike.
.11181'1 a