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INVESTMENT REALTY SERVICES, ) IN THE COURT OF COMMON
INC. ) PLEAS OF CUMBERLAND
Plaintiff ) COUNTY, PENNSYLVANIA
)
vs ) CIVIL ACTION - LAW
)
FRANK T. PERANO, ) NO. 94-5969 CIVIL TERM
Defendant ) IN DIVORCE
mmu
AND NOW, this
day of
, 1996, a conference is hereby
scheduled on the attached Motion for Protective Order to be held before the undersisned
in Court Room No.
of the Cumberland County Court House in Carlisle,
Pennsylvania, commencing at
o'clock _m, on the
day of
1996.
BY THE COURT,
J.
INVESTMENT REALTY SERVICES, ) IN THE COURT OF COMMON
INC. ) PLEAS OF CUMBERLAND
Plaintiff ) COUNTY, PENNSYLVANIA
)
vs ) CIVIL ACTION - LAW
)
FRANK T. PERANO, ) NO. 94-S969 CIVIL TERM
Defendant )
AND NOW, comes the above-named Plaintiff, by hi$ attorney, Samuel L. Andes,
and moves this Court for a Protective Order pursuant to Pa. R.C,P. 4012, based upon the
following:
1. The moving party herein is the Plaintiff, Investment Realty Services, Inc. The
Respondent is the Defendant, Frank Perano,
2. Defendant's counsel has issued a notice for the deposition of John O'Brien and
issued a subpoena to Mr. O'Brien scheduling Mr. O'Brien's deposition for 10:00 a.m. on
Thursday, 21 March 1996 at the offices of Defendant's counsel in Williamsport,
Pennsylvania.
3. The deposition of Mr. O'Brien should be prohibited by this Court for the
following reasons:
A. Mr. O'Brien has no knowledge of the transaction or occurrence
on which Plaintiffs action is based,
B, Mr. O'Brien has no information whi<:h is relevant to this action
or which would be properly admissible at trial or would lead to the
discovery of evidence or witnesses who would have relevant information
which would be admissible at trial.
C. Defendant seeks to depose Mr. O'Brien only for the purpose of
embarrassing the Plaintiff and its owners and employees and making this
litigation unnecessarily unpleasant and expensive for Plaintiff and its
owners and employees.
D. The deposition of Mr. O'Brien will cause Plaintiff unnecessary
expense which will not lead to any information or evidence which will
advance the preparation or trial of this action.
4. If the Court permits Defendant's cowlsel to depose Mr. O'Brien, such
deposition should not be held at the place Defendant has proposed to hold it for the
following reasons:
A. Mr, O'Brien lives in the Shamokin, Pennsylvania area, and
requiring him to travel to Williams port is an unreasonable burden upon
him.
B. Mr, O'Brien has expressed willingness to be deposed. if
necessary, if that deposition is held in Shamokin, Pennsylvania and Mr.
O'Brien's private counsel has offered the use of his offices in Shamokin for
such a deposition.
C. This litisation is pendins in Cumberland County and, with one
minor exception, all discovery has been conducted within Cumberland
County.
D. Requiring Plaintiff and its counsel to travel to Williamsport for
the deposition of Mr. O'Brien would cause an 1IIU1ecessary burden and
inconvenience for Plaintiff and its counsel.
,. The only connection that Williamsport has to this case is that it is the location
of the office of Defendant's counsel,
6. Plaintiff believes that Defendant seeks this discovery in bad faith, that the
discovery is intended to embarrass and inconvenience and Plaintiff and Plaintiffs
counsel, and that the litigation of this case will not be advanced in any way by the
deposition of John O'Brien,
WHEREFORE, Plaintiff moves this Court for a Protective Order pursuant to Pa.
R.C.P. 4012 which will do the following:
A. Prohibit entirely the deposition of John O'Brien by Defendant or
his attorney; or
B, Permit the deposition of Mr. O'Brien by Defendant or his
attorney but limit the subject of thaI deposition to the transaction between
the Defendant and CountJy Manor Mobil Home Park which is the subject
.
r
INVESTMENT REALTY . IN THE COURT OF COMMON PLEAS
.
SERVICES, INC. . CUMBERLAND COUNTY, PA
.
Plaintiff, .
.
.
.
VI. . No. 94-5969 Civil Term
.
FRANK T. PERANO, . CIVIL ACTION - LAW
.
Defendant.
TO THE PROTHONOTARY:
Kindly enter the appearance of Allen E. Ertel, Esquire, on behalf of Defendant,
t'rank T. Perano in the above-captioned matter.
EN E. ERTEL & ASSOCIATES
f4/
Allen E. Ertel, Esquire
ID # 07S24
Suite 301
30 West Third Street
Williamsport, Pennsylvania \7101
(717) 326-2814
NVBBTtlBNT IIALTY ) IN THB COUIT OP COtlHON
IlIVICIl8, INC., ) PLIlA8 OP CUHBEILAND
plaintiff ) COUNTY, PIlNNSYLVANIA
)
VB. ) CIVIL ACTION - LAW
)
IANl T. PIlIANO, ) NO. 94-5969 CIVIL TBRM
Defendant )
PLAINrIPP'S BIIIlP TO OPJ'OlIB DBPBNIWI'I"S PlBLIHINAlY OIldIlCTIOIlS -
IOCIlDUIAL HI8'f01Y
This action was c~enced by a writ of SUMMons issued on 18 October 1994. The
rit was served upon the Defendant on ~6 October 1994 and Defendant responded with a
ule upon the Plaintiff to file a cOMplaint. wbich lule was issued 15 Noveaber 1994.
laintiff filed its original cOMplaint on 5 DeceMber 1994 and Defendant responded by
reli.inary objections which were filed on 31 Deceaber 1994. In response to the
reli_inary objections, plaintiff filed an aMended COMplaint on 5 January 1995.
efendant filed preliMinary objections to that a.ended COMplaint raising for the ~st
art the sa.e grounds raised in Defendant's preliMinary objections to Plaintiff's
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riginal cOMplaint. Those preliMinary objections are now before the Court.
The parties bave engaged in extensive discovery, deposing a total of 8 people on ·
iiferent dates between January of 1995 and June of 1995. At those depositions they
ave identified and received testi~ny about nu.erous dOCUMents.
Defendant has not filed a brief ill support of hIs preliMinary Objections. This
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~rlef, therefore, will address the preliMinary objections in the order raised in the
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rleading.
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Plaintiff is a licenseu real estate broker wbich specializes in transaction.
involving .obile hOle parka. Prior to 1991, Plaintiff and Defendant bad worked
ogetber on nwaeroua transactions in vbicb Defendant purcbased .obile boee parks which
ad been located for Defendant by Plaintiff. Tbe parties were well known to elch other
nd, over a period of Many years, bad developed a working relationahip and a repeated
pattern of working together.
In 1991 Defendant continued his interest in purchasing aobile hoee parka and
requested Plaintiff to asaist hi. in locating one whicb would be appropriate for bia
eed.. Tbe parties orally agreed, as tbey bad nUMeroua tiMea in the past, that
Plaintiff would repre.ent Defendant in the aearcb for an appropriate property, for
I hich Defendant would pay a findera fee of ~ percent of tbe ultiMate purchaae price.
A. before, tbat agreeMent was not reduced to writing.
,I During the spring of 1991, Plaintiff located a ~bile hOle park in Cuaberland
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:County which fit Defendant's rAquireMents. Plaintiff and Defendant worked togetber to
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!try to reacb agreeMent witb the owner of that MObile hOM' park, Charles Taylor, to sell
iit to Defendant. Tbeir efforts and negotiations with Taylor continued through May of
11993 and were auccesaful in bringin9 TaYlor and Defendant to an oral a9reeMent for
iDefendant'a purchaee of the ~bile bOMe park. However, Taylor declined to 81gn a
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~rltten agreeMent in May of 1993. Tbereafter. when Taylor decided to proceed with tb.
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! ,Ide to Defendant, DefendilDt deal t dlfectl y with Taylor, excluding Plaint! If trOll any
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i~articiPation in, or even notice of, tbe final tranlaction. Aa a result, Ia.eti.. in
1!1994 Defendant purchued Taylor's IIObile hOMe park, witbout notice to "'aintift. When
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I'p h1Dti If learned of the COMpletion of the transact ion and requested paYMent of it.
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I ifee. Defendant declined paYMent. TII18 suit followed.
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Tbird, Pllintiff did not prepare tbe agree.ent of sale tbat vas ulti.ately signed
y tbe Defendant. Tbe docu.ent that Plaintiff did prepare, or tbe docu.ents prepared
bill Plaintiff VII actively representing Defendant. included the disclosures required
y tbe statute. !vidence of all of that has been developed during the discovery vbicb
al be.n cQlpleted to date. In fact. lOst of the docuaents produced by Defendant
i..elf contain tbe very disclosures vhich this preli.inary Objection clai.. vere not
de,l In su., the require.ents of section 601 of the statute .ay be a .atter
I requiring proof at trial. but there is nothing about tbose disclosures tbat require
hat tbey be pled in Plaintiff' 5 cOllplaint.
Defendant next contends that he should be granted a de.urrer becau.e tbe Plaintiff
id not plead tbe existence of a sales contract. Again, there is no require..nt in tb.
Irules of court or tbe case law of Pennsylvania tbat requires a party to aver tbe
'rxistence of a written contract vhen they are not suing upon or atte.pting to enforce
I~be contract. Tbe contract of sale vas UltiMately betveen Charles Taylor and tbe
i'fendant. Plaintiff vas not a party to tbat agree.ent and does not now seek to
I~nforce it.~ Tbe contract vbicb tbe Plaintiff seeks to enforce is an oral contract
I~etveen Plaintiff and Defendant providing for the pay..nt of a fee for Plaintiff's
:~erYices in locating a property purcbased by Defendant. There is notbing in the lav
Itbat reqllirea PlaintHf to aver. or attacb to its cQlPlaint. a copy of tbe ague.ent
I~etveen tbe Defendant and a third party in order to enforce Plaintiff's rigbts under
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1 !tbe oral agree.ent for tbe paYHnt of the tee.
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l'bole disclo.ures appear. aMOng other places, in Perano Deposition Exbibit No. 1
iand Perano D.position Exbibit No.8. copies of which are attacbed to tbis brief.
~Ibe agree.ent vas for the sale of tbe MObile hOMe park and that agr....nt val
! ,conn_ted by botb parties. Pia inti U is not s.eking in any way to .nforc. tbat
llagr....nt of IIle at tbia t i.e.
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Plnally, Dtlendant seeks a deMurrer on the b\sls tbat Plalntlll dld not aver. in
ts cOlplaint. the length or terM 01 the agree~nt between the plaintill and the
lendant for Plalntlll's lee. Our law does not require that the length 01 a contract
or services such aa thls be averred. The law only requires that sullicient aver.ents
s to ti.. be included In the co.plaint to ver.lt the Delendant to Identlty the .atters
~n whlch the suit la brought and to deter.ine it the actlon haa been brought wlthln the
~pproprlate statute of liMltatlons. Hikula vs. HarrlsburG Polyclinlc Hosplt~l. ~8 Die
~d. 12~ (Dauphin Co.: 1(12); Lynn vs. HorGan. 10 Die 2d. 111 (1914); Baker vs. RanGoa.
1229 PI. Bup''Ir. 3ll. 324 A2d. 498 (1974). There is nothlng in the law that requires the
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rlalntlff to aver every date on which transactions occurred. Generally. a plalntiff ia
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"at requ1red to aver every tact which SUPP01.tS bls clal. or wbl.ch will be proven at
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trial.
I Here. In paragraphs 6 throu<Jh 9 of p1alntltt' s co.plaint. Plaintiff states that
\tbe parties began dea11ng on this particular transaction In the spring of 1991 and that
~lalntlff continued Its eftorts with Detendant tbrough the su..er of 199~. Tbat
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~ertainlY provides Detendant with adequate notice of the ti.e traMe in wbich plaintift
~rovlded the aenices tor which it now seeks paYMent. The intorMation 11 MOre than
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8ufticient for tbe Defendant to deter.ine if he has a defense based upon the statute 01
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!ll.itations. Plalntiff bas satlstied the requireMents of pleading tiMe in thia caae.)
None of tbe argu.ents subMitted by Detendant. or tbe deticienciea in Plaintiff'a
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~OMplaint wblcb the Defendant clal.s exist. are sulticient reason to grant Defendant's
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de.urrer and dis.ils Plaintiff's caaplaint.
3we Must reMeMber tbat the Defendant has dilcovery available for the develOPMent
~f furtber facti giving rile to or supporting any defenses he wilhel to .ake baled upon
l11tber tbe aufticiency of tbe contract or affirMative delensel lucb aa tbe statute of
11.1 utionl.
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.. PLAInI"'8 COIII'LAIII'l' COIftAIN8 8UPFIeIJlIl'r AYB1J1B11'1'8 AI to tIIlB to IAtIln '1.
[.e.,. 1019(1).
Detendant's aecond preli.inary objection appears to be a request tor a MOre
Ipecific pleading, based upon Defendant's clailll tbat Plaintlff has tailed to aver
arious dates and tiMes in its cOMplaint. The case law on tbis sUbject hal been
addrelled in the preceding portion at tbis brief and will not be repeated here.
laintitf's cOMplaint is lufficient because it atates the tiMe fraMe in which tbe oral
contract between tbe parties was Made and the perforlllance of Plain~itt waa rendered.
bere is certainly aulficient specificity in those portion. of Plaintitt'. a..nded
cOMplaint to put Defendant on reasonable notice of the nature at Plaintifl'a clai., the
I i.. the services were rendered, and whether Detendant bas any basis
,laUir.ative defense of statute of lilllitations.
to raise tbe
It i8 true tbat Plaintiff did not aver tbe tile or place of the conclusion at the
agree..nt at sale between tbe Defendant and ebarles Taylor. That is because, at tb8
iti.. Plaintitt's a.ended cOMplaint was prepared, Plaintiff did not bave that
I inforlllation, as noted in Paragrapb 11 of tbe alllended caaplaint. However, allot
that
intor.ation is well known to Detendant, in tact better known to Detendant than to
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IPlaintill. Iloreover, all of tbat intorlllat.ion bas now been developed tbrougb discovery
:ao a IIIOre specific pleading is not necessary to provide Detendant notice 01 the detaill
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lof Plaintiff's clai..
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Iu au., there ia no reason to require Plaintiff now to a.end ita COMplaint .iMPly
Ito atate facta whicb are better known to Defendant than to Piaintltt and which have
lalrUdY been tbe aubject of extensive discovery.
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c. 'LAIJrrIrr'1 CLlI" II IlO'I' IAIBD UPON A lIIIfIIIG AIIO. 'IIIIUfOIIl, 'LAIlI'l'1rr HAl
I OOKPLIBD WIfB PA. I.C.P. 1019(h).
Delendant next requeltl that Plaintiff'l a..nded cOMplaint be stricken because
laintilf did not attach to tbe c~plaint a written docuMent containing the disclolures
IreqUired by the Real Istate Licenling and Reglltration Act. As we bave noted above,
~bere is no require.ent in tbe law of Pennlylvania tbat requires tb,t Plaintiff
pecificallY aver c~pliance witb tbe requireMentl of the statute. If Delendant
elievel tbat IOMe required disclosurel were not .ade. he .ay raise thole as an
ffir..tive defense. Plaintiffs are not required, in their initial pleading, to
nticipate affir.ative defenses. first p~Gas Coal eQ. VI. Wheeler Run eoal eo.. )01
a. 48~, l~~ A. 685 (1930). It is not necessary for tbe plaintiff to plead tbe
vidence relied upon to prove bil claiM at trial. f.A. Carpenter I eo. VI. Vul~anite
~ll Pa. ~~l, 61 A. 1~ (1905). If the Det~ndant believes it hal a
~efense to Plaintilf's action based upon ~laintiff's failure to .ake required
~ilclosurea, tbat is an affirlllative defense wbicb Defendant Ibould ralle in lts
leading. That is not a lIIatter requiring tbe a..ndMent 01 Plaintiff'l cOMPlaint.4
D. PLAIIltIPP'I AIUlIIDBD COIIPLAINt II IlO'I' DBPIC'l'IV1l fOl PAILUU '10 lVa ftII 'IIlB
ru or 'IlIII 0IlL COIrrIAct .mUII 'IHIl PU'II8.
I Oelendant railed tbls sa.e argulllent in support of its de.urrer and the cale
~utboritiea on tbll point are dilcussed In a preceding portion of thil brie!. It il
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.ufficient to atate, here, tbat Plaintiff bal cOIIIpetently averred all 01 the iMportant
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ter.s of the agree.ent between tbe partiea. Tbe fact, 01 courle, is that tbere wal no
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4AI noted earlier, tile dllcloluree required were Made and have' been tboroughly
reviewed in the dhcovety in tbe cue to date.
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Ipecific ti.. lilll1t on the oral contract between Plalnt1ff and Defendant. Pla1ntl11
as to locate a property for the Defendant to purchase. Tbere wal no tillle li.it within
h1ch Plaintiff was obligated to find tbe property. Thul there was no Ipecific tl..
erlll of the agree..nt between the partiel which the Plaintiff CQuld aver.
We MUlt Ilso recall tbat tbe partiel bave now concluded four full days of
epolition, in wbicb they took tbe testilllOny 01 e1gbt indiv1duall and during wblch
UIIIIroUI doculllents were produced and reviewed. certainly Delendant now bas IIIOre than
~dequ.te infor.ation about tbe tillle provisions of tbe agreeMent between tbe parties,
and Plaintiff'a aver..nts regarding tillie, for Defendant to prepare an answer or otber
responlive pleading to Plaintiff's cOlllplaint.
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Plaintiff's a..nded cOIIIplaint fairly states Plaintiff's clai. and does 10 with
!sufficient specificity to lIIake Defendant aware of the exact nature of Plaintiff's clal111
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~nd to prepare and plead Defendant's defense. ?laintiff is not required to plead the
~vidence 1t will lubMit to prove ita clailll or to plead facts to raise or refute
~fendant'l affirlllative defenlea. Tbe parties bave now engaged in extenlive dilcovery
land the facta are al well known to Defendant aa to Plaintifl. Defendant Ihould be
[required to anawer Plaintifl's a..nded coaplaint 10 tbll lIIatter can proceed to trial.
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aelp.~tfully subMltted,
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8aMue " L;- Ande ---
Attorney for Plaintiff
a
THIS AGREEMENT, made ,19 by and between
TAYLOR ENTERPRISES, INC., a Pennsylvania corporation with
offices in Mechsnicsburg, Pennsylvania, hereinafter called
"Seller", and FRANK T. PERANO, of King of Prussia,
Pennsylvania, hereinafter called "Buyer",
WHEREAS, Seller represents that it is the sole owner of
a mobile home psrk situated in Middlesex Township, Cumberland
County, Pennsylvania, and known aa "Country Msnor" together
with all improvements thereon, and
WHEREAS, Seller desires to sell the aforementioned
property to the Buyer upon the terms and conditions
hereinafter set forth.
NOW THEREFORE, the parties hereto in consideration of
the mutual covenants and conditions herein ~ontained and
intending to be legally bound hereby covenant snd agree as
follows, to wit:
1. Seller agrees to sell and convey to Buyer and Buyer
agrees to buy from Seller upon the terms and conditions
hereinafter set forth:
a. All that parcel of land situated in Middlesex
Township, Cumberland County, Pennsylvanis, contsining
Acres, more or less, and improved with 426 mobile
home spaces together with and all the tenementa,
hereditaments, improvements, appurtenances, rights, easements
and rights-of-way incident thereto, all hereinafter
collectively called the "Subject Property", said property
being more fully described in Exhibit "A" attached hereto;
and,
b. The Sellers' going business related to the mobile
home park situated on the Subject Property; and
c. Certain personal property used in the operation of
said business more fully described in Exhibit "B" attached
hereto.
2. The purchase price to be paid by the Buyer to the
Seller for all the property described in Paragraph 1, above,
shall be Nine Million ($9,000,000.00) Dollars, payable as
follows:
a. Fifty Thousand ($50,000.00) Dollars within ten (10)
deys of the date of this Agreement, said amount to be held in
en interest bearing account by Investment Reslty Services,
Inc., as Broker, in accordance with the laws of Pennsylvsnia.
Any interest earned on said deposit shall inure to the
benefit of Buyer.
b. Eight Million Fifty Thousand ($8,050,000.00) Dollars
in cash at the time of settlement, execution and delivery of
warranty deed.
c. Nine Hundred Thousand ($900,000.00) Dollars in the
form of a second mortgage to Seller, which sholl be
accompanied by a note written for 240 months. The annual
interest rate charged on the note shall be eight (8%) percent
and the note shall call for annual interest payments to be
made by Buyer during the first five (5) years following
settlement. During the subsequent fifteen (15) years Buyer
shall make monthly interest and principal payments in the
amount of $8,600.87. The Buyer shall have the right to
prepay all or part of the balance at any time without
penalty.
3. This Agreement is contingent upon Buyer's physical
inspection and of his verification of the income and expenses
of the Subject Property.
4. This Agreement is contingent upon Buyer obtaining
financing to complete settlement hereunder in sn amount not
to exceed eighty (80%) percent of the purchase price at s
rste not to exceed 10 1/2% and for a term of not less thAn 20
years. If Buyer is unable to obtain a comittment for said
financing by or before December 15, 1991, this Agreement
shsll become null and void and all deposits, vith interest,
shall be returned to Buyer. Seller agrees to cooperate with
any appraiser or engineer retained by Buyer for the purpose
of obtaining requisite appraisals or environmental surveys
for financing. All costs incurred for same shall be paid by
Buyer.
5. Seller will transfer to Buyer at settlement all
right, title and interest in any leases by an Assignment of
Loases and will transfer all security deposits.
6. Seller shall bear the risk of loss from fire or
other casualty until the time of settlement. In the event of
damages to the property, Buyer shall have the option of
rescinding this Agreement or of accepting the property in its
then condition with the proceeds of any insurance recovery
obtainable by SeIter.
.
7. Seller warrants that the property is zoned for 8
mobile home park and that the current use is not in violation
of sny township or county ordinances.
8. Seller warrants that the Subject Property is
serviced by public sewer and private water and that all
assessments and taxes for SAme have been paid. Seller agrees
to execute all documents necessary to transfer the Public
Water Supply Permit issued by the Pennsylvania Department of
Environmental Resources to Buyer at oettlement.
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~."'~ 01' SAUl
THIS AGREEMENT is made between TAYLOR ENTERPRISES, INC., a
pennsylvania corporation, with offices at 6476 Carlille Pike,
Kechanielburl, Pennlylvania, Cumberland County, Pennlylvania,
(herein called "Seller")
-AND-
fRANK T. PERANO, an adult individual with officel at 570 Dekalb
Pike, Suite 106, Kinl of Prussia, Kontlomery County,
PennlrlVania 19406, or hil nominee in accordance with the terml
of th I Alreement of Sale (herein called "Buyer").
WIT N E 5 SET H:
Seller and Buyer. intending to be bound lelally hereby and
in conlideration of the mutual covenantl and alreementl let
forth, do alree as follows:
1. Alreement to Purchase and Sell. Seller hereby alreel
to lell and Buyer hereby agrees to purchase, upon the terml and
conditionl hereot, the Property and Assetl (al defined herein)
ot Seller.
2. The Property. Seller shall, on the date specified
herein, grant and convey unto Buyer the parcel of real property
conliltinl of approximately 100 acrel, togetner with all
improvementl and permanent fixtures attached thereof, located
in Kiddlelex TOwnlhip, Cumberland County, Pennlylvania, which
parcel iI more particularly delcribed in Exhibit "A" to thh
Alreement (herein called the "Property"). In addition to the
laid real eltate, Seller shall transfer to Buyer, free and
clear of lienl and encumbrancel, the equipment and other
peuonalty which iI identified in Exhibit "B" to thh Alreement
(herein called the "ABleU"). which tranlfer shall be completed
by tranlfer of vehicle titlel and the illuance of a bill of
lale to Buyer at the time of Settlement.
3. Purchale Price. Consideration and ASlumption of
Obli~atiolll. The total Purchaee Price Ihall be Nine KilUon
($9, 00,000.00) DOllarl, U.S.. together with the alsumption by
Buyer of all Seller'l obligatlon under (a) Seller'l leale
alreement with Lellie M. Hickl, Jr. relating to the retail
Itore facility located on the Property; (b) deleted
intentionally; (c) Seller'l obligations relating to the
provilion of cable television eervice through "CTC
Coaunicationl". a proprietouhip owned or controlled by
Selleri (d) Seller'l obligationl purluant to all mobile home
Ipace leasel for all spacel witbin the Property; and (e)
Seller'l relponlibility for compliance with any and all
requirementl that are now or may bereafter be impoled upon the
Property trom any municipality, jurildiction, alency,
coaillion, or other reculatory entity with relpect to any
alpect of the Property or the A.letl.
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4. Payment of the PurchAse Price. The stated Purchase
Price of Nine Million ($9,000,000.00) Dollars shall be payable
to Seller as tallows:
a. The sum of Fifty Thousand ($50,000.00) Dollars
shall oe paid as an earnest money deposit, upon the .ienine ot
this Aereement, which sum shall be held for the benefit of
Seller in an lnterest-bearing escrow account with intere.t
accrued to the Buyer, except in the event of a default by
Buyer, by Investment Realty Service., Inc., a 1icen.ed
penn.ylvania real estate brokerace pur.uant to the Real E.tate
Licen.ine Law. of Pennsylvania;
b. The sum of Nine Hundred Thou.and ($9QO,OOO.00)
Dollar. shall be paid by the execution and delivery of a
Horteaee Note and secured by a second lien Horteaee to be
recorded acainst the Property to Seller which Note and Mortea,e
.hall be in the form and substance attached hereto collective y
as Exhibit "C", provided that said documentl shall be .ubject
to review and approval by Buyer'S fir.t morteacee, .aid
approval to be obtained by Buyer within fifteen (15) day. of
mutual execution of this Acreement of Sale. In the event
Buyer'. first Horteacee and Seller'. coun.el do not aeree
recardine the form and substance of the Second Note and
Morteaee document. within fifteen (15) day., then this
Acreement .hall be void and the earnest money deposit .hall be
returned to Buyer;
c. The sum of Eieht Million Fifty Th~usand
(8,050,000.00) Dollars tocether with any other .ums due
hereunder .hal1 be payable in cash or it. equivalent at the
time of Settle&ent.
d. Buyer and Seller acknow1edee that Seller may
elect to include thi. transaction a. part of a .o-called
"tax-free exchanee" of property pursuant to Section 1031 of the
Internal Revenue Code and, if reque.ted by Seller, Buyer aerees
to cooperate in every respect to affect the tax-free eschanfe,
provided that Buyer shall not incur any additional transact on
expen.e. as a re.ult of the election to employ the tax-free
exchanee.
5. Precondition. to Buyer'. Oblications.
a. Suitabl1ity of Property. Buyer Ihal1 have
fifteen (15) day. followin& mutual execution of thi. Alreement
to .ati.fy him.elf recardine the suitability of the Property
for luyer's lntended u.e; to review mobile bome .pace lea.e.;
to perform any in.pection(s) upon the Property and any of the
included personalty; to review any municipal Or eovernmental
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reculation. applicable to the Property; and to review And
verify any tinancial data pertainine to the Property. If Buyer
notifie. Seller ot its failure to satisfy or approve any of the
condition. contained in this Section within the titteen (15)
day. time period .et forth, then this Acreement .hall
automatically terminate upon Seller" receipt of .uch notice.
In .uch event, the earne.t money depo.it .hall be returned to
Burer .nd thi. Acr..m.nt .hall th.reafter be null .nd void and
ne ther party .hall have any further oblication to the other.
It Buy.r tail. to notify Sell.r .. provided in h.r.in, then the
earne.t money .h.ll become nonrefundable aa to m.tter.
pert.ininc to thi. P.r.eraph, and thi. Acreement .hall be in
tull force and eftect lubject to Seller" perform.nce and
oblifation. h.reunder .nd any other contineencie. contained
here n.
b. Statu. of Title Re~. Within titt..n (15) day.
tollowinC mutual execution of th . Aer..m.nt, S.ll.r .t ita
.xp.n.. .hall furni.h to . preliminary title report trom .
reput.bl. Title In.ur.nce Company ahowinc it. willincne.a to
i..ue . .tandard owner'. pOlicy of title inaur.nce on the
Prop.rty, tOfether with full copiea of .11 exceptions. Buyer
.hall have t fte.n (15) days after receipt of the preliminary
title r.port and exceptiona within which to notity S.ll.r in
writine of Buyer's di..pproval ot any exception. .hown in the
r.port, other than the matt~r. let forth at Paraeraph 7 hereof,
and any liena to be a.ti.fied by Sell.r at cloainf' In the
.v.nt ot auch diaapprov.l, Seller ahall h.ve unti ten (10)
daya b.tor. the cloaine d.te de.crlbed in par.ci.ph 6 to
elimin.te any di..pproved exception. F.ilure of Buy.r to
di.approv. any exception within the fifteen (15) d.y period
.hall be deemed .n .pprov.l of the exception shown in the title
report.
c. Katter. Relatine to Survey of Property. Seller
acre.a to turni.h copiea of any exiatine perimet.r .urv.y(.) or
other aurv.ya r.latine to the Property to Buyer within tifteen
(15) d.y. ot execution of thi. Aeree~ent. If addition.l
.urveyine work i. requir.d in order to define the loc.tion of
.ny r..erved ....ment. or to eliminate .ny title objectiona,
Sell.r .h.ll furni.h and bear the expenae of auch .urv.y.. If
.ny aurv.y work i. required by BUY6r or any l.nder of Buyer,
.uch work .hall be obtained .nd paid for by Buy.r.
d. Time of the EI.enee. It il aere.d that time
.hall b. of the e..enc. with r.apect to the provi.ion. of 5(A)
and 5(B) .bove.
6. tlttle.eot aod Clolinc. Thi. trana.ction .hall be
clo.ed on . date and .t auch location which i. mutually
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acceptable to Buyer and Seller but which date il not later than
ninety (90) daYI atter execution of thil Aereement by both
parties ("Settlement Date"). In the absence ot mutual
afreement of the partiel, settlement shall be held at the
o tices ot Seller'l counlel, HETTE, EVANS & WOODSIDE, 1801
North Front Street, Barrilbure. The time set torth tor
lettlement hereunder, and all other timel tor the pertormance
ot Buyer'S oblieations under this Aereement Ihall be ot the
ellence. At the time of settlement, all real eltate taxe.,
utility charee., rent., security depo.itl and other adjultment.
.hall be pro-rated a. ot the Settlement Date. Buyer Ihall be
re.pon.ible for all recordine and filine tees and tor all title
inlurance premiums. Pennsylvania Realty Tranlter Taxel .hall
be divided equally between Buyer and Seller. Seller Ihall
deliver pO.le..ion of the Property to Buyer on th. Settl.ment
Date.
7. CloMin, Document.. At the time ot Settlement, Seller
Ihall convey title to the Property by .pecial warranty d.ed to
Buyer, the title to the laid Property to be luch a. will be
inlurable by a reputable title insurance company at relular
ratel, tree and clear of all liens, encumbrance., ealements,
reltrictionl and detectl, except al may be accepted by Buyer
purluant to Paraeraph 5(B) hereot, and includinl the tollowine:
a. Building and ule restrictions ot recordi
b. Rights in public roadl abuttine xhe PropertYi
c. Public and private utility easementl attectine
the property;
d. Ealementl and minor encroachmentl apparent upon
inlpection of the Property and other erantl of record which do
not materially interfere with the exiltine and propoled ule ot
the Property al a mobile home parki
e. Ealem.ntl in tavor of Seller and/or Meadowl Sewer
Co. tor perpetual tutur. accell to all exi.tine lewafe
diltribution and collection linel, equipment and fac litiel tor
the purpolel of inlpection, maintenance, repair, expanlion,
modification or other related purpo.e.. At the Settlement
Date, the partie. Ihall execute .uch document I a. may be
nece..ary to identify and define the location and extent of
luch ealement(.).
Al.o at Settlement, Seller shall execute and deliver to
Buyer all vehlele title'i a Bill of Sale tor other it.m. of
per.onaltYi all document. nece..ary tor the tran.fer ot cable
te1evi.lon a..et.; all document. nece..ary tor the tran.ter ot
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water dhtribution facility &lute and permit I : appropriate and
realonably necellary corporate re.olutionl for the execution
and delivery of the clo.inc documentl: blanket allicnment of
all mobile home Ipace lealel to the extent written lealel
exilti and luch other document I al may be realonably required
by the title inlurance company. Buyer and Seller acree to
execute luch document I a. may be rea.onably required to
effectuate the term. and provi.ionl of this Acreement.
8. Refr.lentation. and Warrantiel.
a. Seller Repre.entation.. Seller hereby reprelentl
and warrantl to Buyer al fOlloWl, which reprelentationl and
warrantie. .hall be deemed made by Seller to Buyer al.o al of
the Settlement Date:
(1) Seller il a corporation, duly orKaniled,
validly exiltinc, and in cood Itandinc under the law. of the
Commonwealth of Pennlylvania and ha. all requilite corporate
power and authority to .ell and convey the Property, to enter
into thil Acreement and to carry out to purpolel of thil
tranlaction al contemplated hereby. AI of the Settlement Date,
Seller will be duly qualified and in cood Itandina al a
corporation authorized to do bu.inell in the Commonwealth of
Pennlylvania:
(2) Seller hal full power and authority to enter
into and perform thi. Acreement in accordance with itl termli
(3) Seller hal not received any notice or
communication from any covernmental entity indicatinc that a
condition exiltl with ~elpect to the Property or with reepect
to any improvementl thereon which violate any ordinance.
reculation, code or law, except al dilclo.ed to Buyer:
(4) Except al .pecifically provided herein,
Buyer acknowledcel that Buyer i. purchalinc the Property and
the Aneta in "al in" condition, includinc latent detect I and
conditionl and without any reprelentation. or warrantiel or any
kind or nature. includinc without any warranty of
merchantability or warranty of fitnell for a particular
purpo.e. Buyer acknowledcel for Buyer and Buyer" 'UCC'llor.,
h.ir., in,urerl, and (to the extent thi. Acreement i.
al.icnable) allicn., that Buyer will be civen fifteen (15) daYI
followinc mutual execution of thil Acreement to in.pect and
invelticate the Property and the Alletl, and any other matter.
rel.vant to the tranlaction. Upon the pa.lace of laid tifteen
(15) day periOd, Buyer Ihall be deemed to have in.pected luch
ite.. and matterl and Ihall have waived any richt to object to
the condition of the Property. the A.let. or any other alpect
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of thit trantaction. The closing of this trantaction shall
conttitute an acknowledgement by Buyer that the Property and
Attett were accepted without representation or warranty of any
kind or naturel and bated tolely upon Buyer's own intpection
and invettigat on. Additionally, the closing on thlt
trantaction thall conttitute an acknowledgement by Buyer that
the Buyer it not relying upon Seller or anyone acting on
Seller't behalf as to any condition upon or relating to the
Property or the Attett. Thit Paragraph shall survive the
Settlement and the execution of the deed and other clo.ing
documentt.
b. Buyer Repretentations. Buyer hereby repretent.,
warrant. and covenantt (which warrantiet, repre.entationt and
covenantt thall turvive the Settlement) at followt:
(1) There are no actiont, proceedingt or
invettigationl pending againtt Buyer which que.tion the
validity of thit Agreement or of any action taken or to be
taken by Buyer pur.uant hereto or which materially affect the
ability of the Buyer to perform it. Obligation. hereunder.
(2) Any and all financial information provided
by Buyer to Seller in connection with Buyer" ability to tecure
the required financinf or otherwi.e perform hereunder, it true
and correct and conta nt no mi.repre.entationt, non-diecloture,
or mi..tatement. of financial condition.
9. 20ninl and Use of Proper~. The zoning cla..ification
of the Property i. Re.idential-Suburban per the Zoning'
Ordinance of Middle.ex Town.hip, and the intended u.e thereof
for a mobile home park i. presently a valid, permitted and
conforming ute. If at any time before the Settlement Date the
zoning cla..ification of the premites i. modified or changed in
.uch a manner that the operation of a mobile home park i. no
longer an allowable u.e or the Townthip hat pending action to
amend the zoning ordinance to a mobile home park i. not
permitted, then thit Agreement .hall immediately be declared
null and void, and in .uch ca.e, the earne.t money depotit
referred to herein .hall be returned to Buyer.
10. Conduct of Butinet.. Except al tpecifically provided
herein, from the date of thil Agreement until the Settlement
Date, Seller will conduct no conttruction or development
activitie. on the Property; enter into no contractt,
a&reement., or other Obligation. relating to the Property which
would extend beyond the Settlement Date; or make any chan.e. to
the Property without Buyer't advance written approval.
Notwithttandlng the above, Seller agree. to advi.e all mobile
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home park tenant. that a lot rental increa.e of Fifteen
($15.00) Dollar. per month, per lot, .hall take effect a. of
July I, 1992 with respect to all lots tor which a lot rental
increaae may be lawtully imposed. Until delivery ot po.se..ion
to Buyer, Seller ahall maintain the Property and A..et. in lood
repair and Ihall dellver the Property Ind Asset. in the .ame
condition a. now exiat., rea.onable wear and tear excepted.
11. Morteaee Contincency. Buyer's oblieation to proceed
to .ettlement under thi. Alreement shall be continlent upon
Buyer'a ability to obtain tinancina in the minimum amount ot
Seven Million Two Hundred Thousand ($7,200,000.00) Dollar. at a
maximum fixed intereat rate of ten and one-half (10 l/2~)
percent per annum or a variable intereat rate not 'to exceed two
and one-half (2 l/2~) percent per annum above the Prime aate ot
Intere.t a. publiahed in The Wall Street Journal. Said
financinl .hall be deemed acceptable if it is obtained tor a
minimum term of five (5) year..
Seller acree. to crant acce.. to the Property and otherwiae
cooperate with any appraiser, in.pector, bank officer, enaineer
or other repre.entative ot any lender for the purpo.e of
property apprai.al, environmental aurvey or loan evaluation.
All coat. tor .uch servicea .hall be borne by Buyer.
Buyer's obliaations shall be further contincent upon
Buyer" ability to obtain a commitment for and proceed to loan
clo.inl on the re-tinancinl of Buyer'a property. located at
Elizabethtown and known as Cedar Manor Mobile Home Park, .aid
financinl to be in the minimum amount ot Two Million Nine
Hundred fitty Thousand ($2,950,000.00) Dollars repayable over a
minimum term of twenty (20) year. with an applicable initial
intereat rate not to exceed ten (101) percent per annum.
It Buyer i. unable to obtain a written commitment for both
of .aid loan. within .ixty (60) day. ot mutual execution ot
thi. Alreement, notwith.tandinl timely application and
.ubmi..ion ot all data and document. which may be reque.ted by
any fro.pective lender, and despite Buyer'a dilieence in
.eek nf .uch financina, this Acreement shall be declared null
and vo d by Seller, and the earne.t money depo.it, with accru.d
inter.at, .hall be returned to Buyer.
12. Real E.tate Broker. The partie. warrant to each other
that Buyer hat dealt with Inve.tment Realty Service., Inc., a
licen..d real e.tat. brokerafe firm in the State of
Penn.ylvania, relative to th s transaction and Buyer acree. to
indemnity Seller alain.t any brokerage teea which may be due a.
a re.ult ot this relationship. Seller warrant. that Seller ha.
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not encaced any broker with respect to the subject transaction.
and indemnifie. Buyer aeainst any claim for a brokeraee fee
ari.inc from .uch eneleement.
13. Remedie. Upon Default.
a. Seller" Remedie.. Subject to the condition. .et
forth herein, in the event that thi. tran.action fail. to clo.e
on account of IUrer" fault or inability to clo.e, the amount
previou.ly depo. ted or paid a. earne.t money or exten.ion fee.
.hall be forteited by Buyer and retained by Seller a.
liquidated damace.. Such amount ha. been acreed by the partie.
to be rea.onable compen.ation and the exclu.ive remedy for
default, .ince the preci.e amount of .uch compen.ation would be
difficult to determine.
b. Buyer'. Remedie.. In the event that the
tran.action fail. to clo.e on account of Seller" fault, Buyer
.hall be entitled to .uch remedie. for breach'of contract a.
may be available under applicable law, includine (without
limitation) the remedy of .pecific performance.
14. Municipal ~rovement.. Seller warrant. that no
notice of any municipal body or otber pUblic authority ha.
heretofore been lerved upon it I!qui rine work to be dOlle or
improvement. to be made upon the Property; and that Seller ha.
no knowledce of the enactment or adoption of any ordinance or
re.olution by any .uch body or authority autho~izine work or
improvement. for which the Property may be a..e..ed.
15. In.uranee. It i. hereby acreed that liability
in.urance coveraae on the Property .hall be maintained by the
Seller until Settlement hereunder.
16. Condemnation. In the event of the takinc of all or
any part of the Property by eminent domain proceed inc. or the
commencement of any .uch proceed inc. prior to Settlement,
S.ller .hall immediately cive Buyer written notice of .uch
takinc or commencement of proceed inc. and within ten (10) day.
of Buyer" receipt of .uch notice, Buyer .hall proceed a.
follow. :
a. Should all of the Property be condemned, the
Buyer .hall be permitted to terminate thi. Aereement by written
notice to that effect to the Seller on Of before the dated
fixed for Settlement thereof, and thi. Acreement .hall become
null and void, all monie. paid a. an earne.t money depo.it
.ball be returned to Buyer, and neither party .hall have any
other liability or oblieation to the other.
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b. It, however, only a portion ot the Property i.
cond.mn.d, then at the lole option ot the Buyer, Buy.r may
proc..d to S.ttl.m.nt and take title to the remainint portion
ot the Property at the Purchale Price let torth here n, in
which event Seller Ihall a'lien to Buy.r allot the Seller',
rilht., title and intere.t in and to any award r..ultinl trom
.uch condemnation or Buyer may .l.ct to void thi. Alr....nt and
have all hand monie. and intere.t thereon r.turned to Buy.r.
17. Sewale Facility. The penn.ylvania S.wale Faciliti..
Act, Act ot January 24, 1966, No. 537 P.L. 1535, a. ...nd.d,
r.quir.. that there be a .tatement relardinl the availability
ot a community .ewaae .y.te.. Seller r.pr..ent. that the
Prop.rty i. .erviced by a community .ewale .y.te., and that all
a.......nt. and taxe. tor .aid .y.t.. have been paid. The
p.rti.. acknowl.da' and alree that the public ..w.r.I'
t.ciliti.. .hall not be conv.yed to Buy.r and .h.ll be r.t.in.d
by S.ll.r, t/. H.acow. S.wer Co., .ubject to the ......nt
d.~cribed h.r.in at Paralraph 7(.), and turth.r .ubj.et to any
obliaation. ot .aid Meadow. Sewer Co. to provide ..waee
di.po.al ..rvic. in accordance with the taritt and r'eulation.
ot ..id H..dow. S.w.r Co., a. the 8... .ay b. .oditi.d or
r.vi..d tro. ti.e to time.
18. Rilht of Fir.t Refu.al. Seller, in con.ideration ot
thi. Alre...nt ot Sale and the .um ot One ($1.00) Dollar to b.
p.id by Buy.r .t S.ttlem.nt hereund.r, h.r.by Irant. Buyer a
rilht ot tint retueal ("Riaht") to purcha.. <:ertain other
pr..i.e. ot Seller, located in We.t Hanover Town.hip and
con.i.tinl ot . .obil. home park known a. Country Hanor Farm.,
upon the tollowinl t.rm.:
a. The Riaht .hall commence on the S.ttlem.nt Dat.
h.r.under and .hall only commence it Buyer make. Settl..ent
hereunder:
b. The Rieht .hall .xpire tw.nty-four (24) .onth.
atter the Settl..ent Date hereunder, unleL' properly exerci..d
prior to .uch dat.:
c. At .uch ti.e, if any, it Seller r.c.ive. a bon.
tide written ott.r tro. a third party to purcha.. .aid Country
Hanor Far.., Seller .hall notity Buyer ot .uch ott.r within ten
(10) day. ot r.ceipt ot the otter, followinl which Buy.r .ha1l
h.v. thirty (30) daYI to exerci.e the Rilht by .ub.ittinl
writt.n notice of election by hand-deliv.ry or certiti.d .ai1,
r.turn receipt reque.ted, toeether with an earne.t .on.y
d.po.it in the a.ount ot Twenty-Five Thou..nd ($25,000.00)
Do11.r. or the amount of depo.it provlded in the third party
otter, whichever a.ount it te.. (OlEarneet Money"). It Buyer
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may lell laid property to
If the third party lale il
automatically reinltated.
doel not exercile the licht, Seller
the third party free of the lieht.
not conlummated, the Rieht Ihall be
19. General Provilionl.
a. Bindine Effect. Thil Aereement Ihall be bindine
upon and inure to the benefit of the partiea, and their
relpective heirl, perlonal reprelentativel, IUCC.llorl, and
...ienl, except that Buyer may allien thil Aereement of Sale to
a nominee entity if luch nominee ia a validly con.tituted
entity owned entirely by Buyer. Except aa aet forth above,
Buyer may not a..ien or tranater ita intereat in thil Aereement
without prior written approval or Seller, which approval may be
withheld by Seller for any realon. and further provided that
Buyer Ihall at all times remain pftrlonally oblieated for the
Morteaee Note and Hortelee to Seller under Paraeraph 4(b)
her.ot.
b. Noticel. Notice under thil Aereemlnt Ihall be in
writine and shall be effective when actually delivered. If
mailed, a notice Ihall be deemed effective when depoaited aa
reeiltered or certified mail, or overnieht delivery lervice,
pOltaee, pOltaee prepaid, directed to the other party at the
addresl tor notices by written notice to the other.
c. Waiver. Failure of either party at any time to
require performance of any provision of thil Aereement Ihall
not limit the partY'1 rieht to enforce the provilion. Waiver
of any breach ot any provilion Ihall not be waiver of any
lucceedine breach of the provision or a walver of the proviaion
itlelf or any other provision.
d. Attorney'l Feel. In the event luit or action il
inltituted to receive, interpret or enforce the terma ot thil
Acre.ment or to relcind thil Alreement, the prevailine party
Iball be entitled to recover from the other party luch lum al
the court may adjudle realonable al attorneYI' feel at trial,
on any appeal, and on any petition for review, in addition to
all other luml provided by law.
e. Prior Alreementl. Thil Alreement luperledel and
replacel all written and oral aereementl previoully made or
exiltine between the partiel, relatine to the Property except
for the Letter of Intent dated October 4, 1991, which letter il
incorporated herein by reference. except to the exten~ that the
periodl let forth therein hive been waived or have lapled in
the event of any conflict between thil Aereement and laid
letter. tbil Aereement Ihall control.
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f. Agplicable Law. Thi. Acreement .hall be
con.trued, applied and enforced in accordance with the law. of
the Commonwealth of Pennsylvania and Venue .hall be acreed to
be in Cumberland County.
C. Chanl" in Writinc. Thi. Acreement and any of
it. term. may be chanled, waived. diecharled or terminat.d only
by a written in.trument .icned by the party alain.t whom
enforcement of the chance, waiver, di.charce or termination i.
.oucht.
h. Indemnified Parties. Any indemnification
contained in thi. Acreement for the benefit of Sell.r .hall
.xtend to Seller'. officer., employee., and acent..
i. Counterparte. Thi. Alreem.nt may be executed
.imultaneou.ly or in counterpart., each of which .hall be
de.med an oricinal, but all of which tOI.ther .hall con.titute
one and the .... Acreement.
j. Invalidity of Provi.ions. In the event any
provi.ion of thi. Acreement, or any in.trument to b. deliv.red
by Buyer at clo.inl pur.uant to thi. Acr..ment, i. d.clared
invalid or i. unenforceable for any rea.on, .uch provi.ion
.hall be deleted from .uch document and .hall not invalidate
any other provi.ion contain.d in the document.
k. Survival of Covenants. Any covenant. and
alreement. which thi. Acreement doe. not require to b. fully
p.rformed prior to the Settl.ment Date .hall .urvive the
Settlement Date and .hall be fully enforceable thereafter in
accordance with their term..
1. Acceptance. If thi. Acreem.nt ha. been executed
by one (1) of the partie. and i. pre.ent.d to the other party,
.ucb offer .hall expire unle.. accepted by the oth.r party
within two (2) day. after ex.cution by the firet party.
m. Covenant AlainEt Recordation. Buyer .hall not
record or pre.ent thi. Acreement for recordation in any Office
of the Recorder of Deed., except with advance written con..nt
of Seller, which con.ent .hall be attach.d to the document
prior to recordinc. Any att.mpted recordation in violation of
thi. covenant .hall con.titute a default by Buyer her.under at
Seller'. election.
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(
INVESTMENT REAL TY
SERVICES, INC.
Plaintiff, r-,.- t
...
.
AUG I 5 1995
IN THE COURT OF <;OMMON PLEAS ~
CUMBERLAND COUNTY, PA
VI.
No. 94-5969 Civil Term
FRANK T. PERANO,
Defendant.
CIVIL ACTION - LAW
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(".,I,i."t.-y.l
/1E.f.ENl>ANT'." 8R/~F ON PR.EJd.MIN<J8.r OBJID'ION.'i
facts .nctrroc~
Investment Realty Services. Inc., sued Frank Perano on an "alleged" commission due on a
real estate purchase of a mobile home park called "Country Manor". Defendant. Perano. filed
preliminary objections to Plaintitl's first Complaint and Plaintiff filed an Amended Complaint.
Defendant preliminarily objected to the Amended Complaint and these preliminary objections are
before this Court.
In his Complaint. Plaintiff alleges an "oral" contract between Plaintiff, a licensed real
estate broker. and Defendant for Plaintiff to obtain a purchase of a mobile home park for the
Plaintiff. Plaintifffurther alleges that the "alleged" oral contract was made in "early 1991". but
does not allege the term of said contract. Plaintiff further alleged "to the extent that any of the
disclosures required by 63 Pa. P.S. 455.607 and 455.608 were required in the transaction which
led to the Defendant's Pl'rchase of said mobile home park. either Plaintiff made said disclosures as
required by law or PlaintitT was 1I0t obligated to make such disclosures or include such
disclosures in the sales agreement. because Plaintitl. did not prepare or participate in the
asreement of sale. To the extent any other disclosures were required of Plaintiff. the~
disclosures were properly made."
(2) A statement describing the pwpose of the Real Estate Recovery hnd
established undc:r section 108 and the telephone number of the commission at which
the purchaser can receive further information about the fund.
(3) A statement of the zoning classification of the property except in cases
where the property (Or each parcel thereof, if subdividable) is zoned solely or
primarily to pennit single-family dwellings. failure to comply with this
requirement shall render the sales agreement or sales contract voidable at the option
of the buyer, and. if voided. any deposits tendered by the buyer shall be returned to
the buyer without any requirement for any court action.
(4) A statement that access to a public road may require issuance of a
highway occupancy permit from the Department of Transportation. "
&-.,.,
IJ ) \1\
I. ' . )
63 P.S. 4S~.608 "Information to be Given atlnitiallnt~rview" Jlro~es: ' , . \), I'
"r~ "I ~ 1.,.( r" I
.. ~ ~'/' ' .
"The commission shall establish rules or' regulations which shall set forth the
manner and method of disclosure of information to the prospective buyer or seller
during the initial interview. Such disclosure shall include, but shall not be limited
to:
( 1) A statement that the broker is the agent of the seller or that the broker is
the agent of the buyer.
(2) The purpose of the Real Estate Recovery fund and the telephone number
of the commission at which further infonnation . ed.
(3) A ~tatement that the duration of th listing agreement 0 contract . d ~e
broker's commission are negotiable. " :--:. ( '~'.;'
(4) A statement that any sales agreement must contain the zoning
classification of a property except in cases where the property (or each parcel
thereof, if subdividable) is zoned solely or primarily to pennit single-family
dwellings. "
It .\
63 P.S. 4~~.604 "Prohibited Acts" Section 10 provides "Failing to specify a definite
termination date that is not subject to prior notice. in any listing contract."
In the pleadings in this case, the Plaintiff has not alleged that he has complied with these
requirements. The Plaintiff has not plead the duration of the contract and that the broker's
commission is negotiable. Since Plaintiff has not plead the requirements under these statutes, the
contract is subject to dismissal. Cf. HrOlffl ",. Kle/nte!ler, 406 A2d S69 (1979).
Plaintiff has not plead any of the infoooation which was to be given at the initial interview.
Also this infonnation obviously should be given in writing, but no such writing i:l attached to the
Complaint. In fact, one of the most glaring deficiencies of the pleadings is the failure of Plaintiff
to allege the duration of contract and that thl: broker's commission is negotiable. In the complaint,
the allegations are that a contract was arrived at early in 1991, but the sale was not consummated
until 1994. Is it reasonable to expect such a relationship to last three years on an oral contract?
Defendant does not believe that this is reasonable. Thus, the very reason for the teoo of the
contract to be stated. which is required under the act, is evident in this case. The reason that the
teoo has not been plead is because an ettempt to plead such a tenn would show the absurdity of
these allegations.
There is also no pleading (I) that Plaintiff disclosed that the broker was the agent of the
buyer, (2) the purpose and telephone number of the Real Estate Recovery Fund, (3) the duration
of the agreement nor (4) a statement of the zoning classification of the premises.
Consequently. Plaintiff has not stated a cause of action because these are conditions
precedent to enforcement of any alleged contract.
2. PLAINTiFf DID NOT STATE A CAUSE Of' ACTION BECAUSE HE DID NOT
ALLEGE THE TERM OF TIlE CONTRACT.
As can be seen by the requirements for a broker to have II contract, the duration of the
contract is required to be stated. '\'his is an essential teoo of a contract.
Without such teon. there is no ,"ontract; therefore. Plaintiff has not stated a cause of action.
The ~ontract has to be detinite and the length of such alleged contract is not only
indefinite, but not stated; theretore, the allegations do not state a cause of action. Cf Heachler VS.
Mellon Stuart, 47 A2d 145 (Pa. 1946).
3. PLAINTIFF DID NOT COMPLY WITH PA RULES OF CIVIL PROCEDURE 1019(t)
SINCE PLAINTIFF DID NOT AVER TIME OR PLACE.
Rule 1019 provides "Avennents of time and place. . . shall be specili':!!lIy stated."
"
In Paragraph 6 of its Amended Complaint, Plaintiff alleges that "in early 1991, Defendant
engaged Plaintiff to search for a mobile home park." Then the Complail't states "that through
discussions between Plaintiff and representatives of Defendant" . . . and "as a result of these
discussions, the parties reached an oral agreement. .." At no place does the Complaint allege
when or where such oral agreement was reached. There is not even a year plead or any location
within the world. The Complaint is completely blank. Thus, the requirements of Rule 1019(t)
has been violated. Defendant can not tell if the statute of limitations can be plead or where this
alleged contract was made. Defendant can not respond to this vague allegation.
0\
4. PLAINTIFF DID NOT ALLEGE WHETHER ITEMS WERE IN WRITING, AND IF IN
A WRITING, PLAINTIFF DID NOT ATTACH A COPY AS REQUIRED UNDER PA. RULES
OF CIVIL PR()('EDURE 1019(h).
Rule 1019 (h) provides "A pleading shall state specifically whether any claIm or defense
set Corth is based on a writing. I f so. a pleader shall attach a ~opy. "
f
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6. In early 1991. Def.ndant engaged Plaintifl to I.arch for a MObile hOllle park in
the central P.nnlylv.nia area for Defendant to purcba... During dilculllonl between
Def.ndant and representatives of Plaintilf, Defendant agreed to pay to Plaintill a
finder'l f.e or co.-islion, calculated on tb. basil of the price paid for any MObl1.
hOMe park purcbased by Defendant as a result of Plaintiff's searcb, advice, and
eflortl, for tbe elforts and services of Plaintilf.
1. In reliance upon the oral agreeMent between the parties, described in tb.
for.going paragrapb, Plaintiff learcbed for, identified and located. and .ade known to
Def.ndant an opportunity for Defendant to purchase a mobile bOMe park located in
euberland County, Pennlylvania, known as the "eountry Hanor Mobile HOI. Park."
8. In tbe spring of 1991, Plaintiff arranged for Defendant to vilit and inlpect
the eountry Manor Mobile HOllIe Park. following tbat insp.ction, D.fendant exprealed
great interest in purchasing and acquiring tbe mobile bo.e park and requelted that
I Plaintiff continue with its efforts toward tbat end.
9. frOM tb. spring of 1991 tbrough the SUMMer of 1992, Plaintilf dillgently
worked witb D.fendant, tbe owners of tbe Country r.anor Mobile HOllie Park, .nd tb.
attorneys and otber representatives of the owners of the Country Manor Mobile HOllIe Park
in an effort to arrange the sal. of tbe eountry Manor Hobile HOIII. Park to Del.ndant.
As a direct r.sult 01 the effortl of Plaintiff, Defendant reacbed an agr..lllent witb the
own.rs of the Country Manor Mobile HOllIe Park for tb. purcbas. of tbat property on
I
i c.rtain specili.4 ter.s and conditions.
10. 1b.r.aft.r, Defendant, dealing directly with the own.ra 01 tbe Country Manor
Mobil. HOIIII Park, concluded bls purchase of that property on tbe la.. ter.s and
conditions al originally negotiated by D.fendant with the asailtance of, and through
the .ffortl 01, Plaintiff.
3
INVIITltIN'l' llALTY IIIVICII, INC., ) IN tHl COUl! or cotltlON
PlaiDtUf ) PLIAI or CIltIIlIILlND
) COUNTY, PBNNIYLVlKIA
VI. )
) CIVIL ActION - LAW
PlAIII '1'. PWNO, )
Defendent ) NO. 94-~969 CIVIL fBIH
) JUlY tlUL DBltANDID
IIJDCI
'fO DIPINDANT NMIID HIIBIN:
YOU HAVB BUN 8UBD IN eOUlT. IF YOU WIIH TO DBPBND AGAIN8T THB CLAIHI 8ft POltH IN
'!III FOLLOWING PAGBI, YOU HUIT TUB ACTION WITHIN TWBNTY (20) DAYS AnlR '!111I cotIPLAINT
AND rm'IeB AU .DVBD, BY ENURING A WRI'r'l'EN APPBARANell PBl80NALLY OilY AftOlNlY AND
FILINe IN WRITING WITH THI eOURT YOUI DIlfEN8ES OR OBJBCTIONS TO THI CLAIKI lit POItH
AGAINIT YOU. YOU All WAINIO THAT IF YOU fAIL TO DO SO, T1l1l eAII HAY PROCIlBD WITHOUT
YOU, AND A JUDGIlIlII'l' HAY BI INTBlIlD AGAINST YOU BY THI COURT WITHOUT rUI'!IIBI rm'Iel POI
ANY IIONIY eLAIIIID IN THIl COHPLAINT OR FOR ANY OTHBI eLAIH 01 IIlLIU UQUIlITID IY THI
PLAIIl'I'IPF. YOU ItAY LOll IIONBY OR PROPBITY OR O'l'HBI RIGHTS IMPORTANT TO YOU.
YOU lHOULD TAIB THIS PAPBR TO YOUR LAWYBR AT ONeB. If YOU DO NOT HAVB A LAWYII 01
eAllNOr ArPOID ONB, GO TO OR TBLIPHONI THIl OprIell 1ft fORTH BilLOW TO rIND OUT WHDI YOU
elK Oft LBGAL HELP.
COURT ADHINI8TRATOR
rOUITH PLOOI, eUKBBlLAND COUNTY COUlT HOUIB
CARLI8LI, PENNSYLVANIA 11013
TIlLIlPHONI: (117) 240-6200
1
INVBSTMENT REALTY IBRVICBI, INe .. ) IN THB eOURT OP e~
Plaintiff I PLEAS OP eUKIBlLAND
I COUNTY, PBNNSYLVANIA
VI. I
I eIVIL ACTION - LAW
PRANI T. PERINO, )
Defendant ) NO. 94-~969 eIVIL TBRM
) JURY TRIAL DEMANDED
AJlllIlDBD COIIPLAIIrr
AND MOl, cOllIes the above-naMed Plaintiff, by ita attorneys, Andel, Vaughn' Bangl,
and lIIakea tbe fallowing Alllended COMplaint 1n this lIIatter:
1. Tbe Plaintiff is InvestMent Realty Services. Inc., a corporation organized and
conducting business under tbe laws of tbe COIIIMOnwealtb of Pennsylvania witb offices at
4740 Delbrook Road in Hechanicsburg, CUlllberland County, Pennsylvania. Plaintilf ia a
corporate real estate broker, fully licensed by tbe CaMIIIOnwealth of Pennaylvania, and
ita prealdent, Brian A. Gross, is a real estate broker fully licensed by the
Ileo.-onwealtb at Pennlylvanla and, as such, the Plaintiff functiona aa a licenaed real
estate broker.
I
2. Tbe Defendant is Frank T. Pel'lno, an adult individual wbo lIIaintaina offic..
for the conduct of bil busineas, and wbo was aerved in tbia lIIatter, at ~70 Oekalb Pike,
Suite 106., ling of Pru8lia, Pennaylvania.
l. Plaintiff is currently, and has been at all tilllea relevant to thi& action,
engaged in tbe buainess of real estate aalea, purcbases, Manage.ent, and related
activities, Ipacifically including the buying, selling. and .anaging of MObile bOIl
parka Ind tbe repreaentation of and advice to people buying, selling, and ..naging
IIIObile bOIl parkl.
4. For .everal yeara prior to 1991, Defendant purchased and operated IIIObile hOMe
parkl .
2
5. For leveral yeare prior to 1991, in hie learch for, purchaee 01, and
.anag...nt of ~bile bu.e parks, Defendant dealt repeatedly witb Plaintilf and paid
Plaintiff repeatedly for Plaintiff'l lervicel to bi. in tbose various .atters.
6. In early 1991, Defendant engaged Plaintifl to searcb for a ~bile hOMe park in
the central Pennlylvania area for Defendant to purcbale. During diecullions between
Defendant and reprelentatives of Plaintiff, Defendant agreed to p~y to Plaintifl a
finder'. fee or cOIIIIIIission, calculated on tbe basis of the price paid for any ~bile
bOMe park purcbaled by Defendant as a result of Plaintiff's search, advice, and
eftortl, for the efforts and lervicel of Plaintiff. As a relult of tbole dilculeiona,
the parties reached an oral agreeMent wbereby Plaintilf would searcb for and attelllpt to
locate auitable projects for Det~ndant to purcbale and, in exchange for thole lervicel,
Defendant would pay Plaintiff a fee equal to five percent of tbe purcbase price be paid
for any propertiee so purchaled.
7. In reliance upon tbe oral agreeMent between the parties, described in the
foregoing paragraph, Plaintiff searched for, identified and located, and lIIade known to
I Defendant an opportunity for Defendant to purcbase a ~bile hu.e park located in
II CuMberland eounty, Pennsylvania, known II tblll "eountry "anor "obUe Ho.e Park."
i 8. In tbe apring 01 1991, Plaintiff arranged for Defendant to visit and Inlpect
I tbe eountry Hanor "obUe HOMe Park.
great inttrest in purchaling and acquiring tbe MObile hOMe park and requ..ted that
Following tbat inspection, Defendant expreseed
i Plaintiff continue witb ita
i
i
~Iforta toward that end.
9.
Pru. the aprlng of 1991 tbrougb tbe lu..er of 1993, Plaintiff diligently
worked with Defendant, tbe ownerl of tbe Country "anor Hobile HaMe Park, and the
attorneYI and other representativea of tbe owners of the Country "anor Hobile HOle Park
)
io an .ffort to arrange the sale of the Country Haoor Hobl1e HOMe Park to D.lend.nt.
AI a direct r..ult of tbe effortl of Pl.intilf, Defend.nt r.ached an agr....nt with the
ownerl of tbe eountry Manor Hobile HOllIe Park for tbe purchale 01 th.t property on
certain .p.cifi.d terllls and conditione.
10. Tbereafter, Defendant, dealing directL.y wltb the owners of tb. Country Haoor
Mobil. HOllIe Park, concluded his purcbase of tbat property on sUbstantially the ..11I.
ter.. and conditions a8 ori9inally negotiated by Defendant witb the a..iltance of, and
throu9b tbe efforts of. Plaintiff.
11. Althougb Plaintill il not privy to all tbe details of the traneaction by
whicb Def.ndant purcbased tbe Country Manor Hobile HOllIe Park, Plaintiff b.lieves th.t
the total purchase price was S9,OOO,OOO.00.
12. Pur,ulnt to tbe agreeMent between Plaintilf and Defendant. Def.ndant w.. to
pay Plaintilf a fe. equal to five (~\) percent of tbe purchase price of tbe MObile hOMe
park located by Plaintiff and purchased by Defendant.
13. Plaintiff well and truly perforllled all of its Obligations under the agreeMent
b.tw.en tbe parties and bas earned the fee due to it by Defendant. To tb. .xtent tbat
any of the disclosurel required by 63 Pa. P.S. 4~~.601 and 4~~.608 were required ln the
I tran.action whicb led to the D.fendant'a purcba.e of aaid IObile hOMe park, .itb.r
I Plaintiff iliad. .ucb diaclolures as required by law or Plaintiff wa. not Obligated to
'I..ke lucb di.clolure. or include .uch disclosures in the Illes agreeMent, b.cau..
Ii Plaintiff did not prepare or participate in tbe agr....nt of sale. To the extent .ny
I other diaclo.ur.. w.r. r.quir.d of Plaintiff, thoee diaclosurel were prop.rly ..d..
I
14. D.I.ndant owes Plaintiff a fee of S4~O,OOO.00 and hat owed that f.. to
'lalntiff 81nCl. b. settled on the purchu. 01 the eO'lDtry Manor Mobile HOMe Park In Hay
lof 1994.
I
I
4
INVESTMENT REAL TV . IN THE COURT OF COMMON PLEAS
.
SERVICES. INC. . CUMBERLAND C:OUNTY, PA
.
Plalntlft', .
.
.
.
va. . No. 94-S969 Civil Term
.
.
.
FRANK T. PERANO, . CIVIL ACTION. LAW
.
Defendant. .
.
AND NOW comes Defendant. Frank T. Perano, by bis counsel, Allen E. Ertel,
Esquire. and preliminary objects to the Plaintiffs Amended Complaint on the followinS
pounds:
I. Defendant objects in tbe nature of a demurrer in tbat:
(a) The Plaintiff did not aver tbat tbere was a sales contract or sales
apeement wbich included tbe disclosures to the prospective buyer. i.e.
Frank Perano. whicb disdosures are not made in tbe sales contract or sales
apeement. tbe contract is voidable.
(b) Plaintiff did not plead any sales asreernent or sales contract which is
required by 63 P. S. ~SS.607.
. .
INVESTMENT REAL TV . IN THE COURT OF COMMON PLEAS
.
SERVICES, INC. . CUMBERI,AND COUNTY, PA
.
Plaintiff, .
.
va. . No. 94-5969 Clvlll'erm
.
.
.
FRANK T. PERANO, CIVIL ACTION - LAW
Defendant. .
.
I hereby certify that I am this day serving the foregoing documents upon the
following named penon (s) by, as follows:
Samuel L. Andes, Esquire
Andes. Vaugbn &. Bangs
525 North Twelfth Street
P. O. Box 168
Lemoyne, Pennsylvania 17043
Date: J - )-5- Q5
~r-G/
Allen E. Ertel, Elqulre
One Executive Piau, Suite :105
JJO Pine Street
Wllllamlport, Pennlylvanla 17101
(117) 326-:1814
"
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I'
INVESTMENT REALTY . IN THE COURT OF COMMON PLEAS
.
SERVICES. INC. . CUMBERLAND COUNTY. PA
.
Plaintiff.
va. . No. 94-5969 Civil Term
.
.
.
FRANK T. PEKANO. . CIVIL ACTION - LAW
.
Defendant. .
.
fJillL/ON FJl.I. CONTINl/ANCE..
1. The law lirm of Allen E. Ertel and Associates represents Defendant Frank T. PerBllo in the
above-captioned mstter.
2. On or about July 28, 1995, Defendant's Cowlsel received notification from the office of
Prothonotary, Cumberland County, that the above-captioned matter has been listed for argument
on August 16, 1995.
3. Defendant's counsel is previously scheduled for argument on another matter in Lycoming
County Courthouse at 2:00 p.m. on August 16, 1995. A second argument on yet another matter is
previously scheduled at 3:30 p.m. in Lycoming County Courthouse on August 16, 1995. (See
attached notices.)
4. Counsel for Defendant is a sole practitioner and has no other attorney to send to
Cumberland County to attend said argument.
5. On August 2, 1995, Defendant's counsel's legal assistant attempted to contact PlaintiO's
counsel to obtain a concurrem:e on their request for a continuance on this Agreement.
INVESTMENT REAL TV . IN THE COURT OF COMMON PLEAS
.
SERVICES, INC. . CUMBERLAND COUNTY, PA
.
Plalnllff, .
.
.
.
VI. . No. 94-5969 Civil Term
.
.
.
FRANK T. PERANO, . CIVIL ACTION - LAW
.
Defendanl. .
.
Attorney Samuel L. Andes. Esquire. counsel for Investment Realty Services, Inc., does not
concur 10 this Motion for Continuance.
Respeclfully lubmltted,
len E. Erlel, Esquire
D H07514
Attorney for Defendanl
INVESTMENT REALTY . IN THE COURT OF COMMON PLEAS
.
SERVICES, INC. . CUMBERLAND COUNTY. PA
.
Plaintiff. .
.
.
.
va. . No. 94-5969 Civil Term
.
.
.
FRANK T. PERANO. . CIVIL ACTION. LAW
.
Defendant. .
.
I hereby I:ertify that 1 am this day serving the foregoing dOl:umellts upon the folIowins
named person (s) by. as follows:
SllRucIL.Andes. E~uUe
Andes, Vaughn & Bangs
S2S North Twelfth Street
P.o.. Box 168
Lemo)'ne, Pennsylvania 17043
- rrqs-
,~fl rJlfl
E. Ertel. Esquire
e ElCeutive Piau. Suite 1
30 PIne Street
Wllliam.port. Pennsylvania 17701
(711) 316-1814
IHVlSTMBNT RBAL'!,'Y SBRVICBS, I IN THB COURT OF COMMON PLlAS or
INC. I CUMBBRLAND COUNTY, PBHNSYLVANIA
Plaintiff I
V I
1
PRANK T. PBRANO I NO. 94-5969 CIVIL TBRM
Defendant I
IN RBI DBFBNDANT'S PRELIMINARY OBJBCTIONS
BBFORE SHEELY. P.J. AND OLER. J.
ORDER OF COURT
AND NOW, this 22nd day of AUGUST, 1995, after careful
consideration, defendant's preliminary objections to plaintiff's
complaint are DI8MI...D. Defendant is directed to file an answer
within twenty (20) days of receipt of this order.
By the Court,
.
.r
Samuel L. Andes, Bsquire
For the Plaintiff
C<>f'~'" ~( 8'/.13/'S.
....8.7.
Allen E. Ertel, Esquire
For the Defendant
Isld
) .
INVESTMENT REAL TV . IN THE COURT OF COMMON PLEAS
.
SERVICES. INC. . CUMBERLAND COUNTY, PA
.
Plalnllff, .
.
.
.
va. . No. 94-5969 Civil Term ~Fal
.
.
.
FRANK T. PERANO, . CIVIL ACTION. LAW
.
Defendant. .
.
J. Please IdentljY. giving the name.' and home and buslnes., addresses and telephone
numbers, of any PfrscJn who you Intend to "all aY witnesses In Ihls maller, Including uPfrt
witnesses.
Defeaant bas not Identified those witneuel whom he intend. to caU at the trial and he
.... not identified tboee wltneua wbo testify a. esperts at tbe triaL When such
determinations bave been made, a rtlponlt providing that the witneu and Identity of the
opert wltneu will be provided.
1. 1I.r 10 all Pfr.YOIU identified in your an,wer to Ihe pre,'eding interrogalory. excepl those
IdentlJltt' as eXPfrl wi/ne.ue.'. please provide a brief .,um,,",ry of Ihe lesl/mony you eXPfcl lhey
wJII offer allrial, lhe baYi., oflheir knowledge of.,uch ,,",lIer.,. and lhe source of any informalion
lhey have whi,'h Il'JII be included in lheir le.,timo"y.
Defendant hal not Identlfted thOle witnesses who will testify al expertl at the trial.
When luch a determination hal been made. a response providing that Information pertalnlD,
to the Identify of the upert wltneu and expert wltneu testimony will be provided.
3. Pleafe Identify, giving the name, professional address and phone number, and a
dfscrlptlon of the professional and employment affiliation and qualification of ea,'h person whom
you plan or exped to call Q.'J an expert witne.u at trial of this mat/er.
See response to Interrogatory No.1 above.
4. As to each per.tOn identified in your amwer 10 the preceding Interrogatory, plea,e "upply
tlte follawing Information:
A. A list of the person's education. training, and other experiem:es and
qualifications to testify aY an expert witne.ys. Including the identity of any
courts In which he ha, previously qualified 10 testilY aY an expert.
B. rhe subject matter on which he or .,he i.' expe,.ted to te.,tify.
C. A statement ofthefa,.t., upon which the expert ha, drawn conelusiom or
baJed his opinion.
I). A statement aY to the opiniOlu the expert i.' expeded 10 submit In his
testlnwny and a .,ummary ~fthe ground" Includlngfoctual. ItK'l/, and
.'dentlf'" or theoreti,'al. .Ior ea,'h _,uch per.Ylm.
, '
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INVESTMENT REAL TV . IN THE COURT OF COMMON PLEAS
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SERVICES, INC. . CUMBERLANDCOUNTV,PA
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Plalntlft', .
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va. . No. 94-5969 Civil Term
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.
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fRANK T. PERANO, . CIVIL ACTION - LAW
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Defendant. .
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I hereby certify that I am this day serving the foregoing docwnents upon the following
named person (s) by, as follows:
STAGE PRE AD
Samuel L. Andes, Esquire
Andes, Vaughn & Bangs
'2' North Twelfth Street
P. O. Box 168
Lemoyne, Pennsylvania 17043
DI&c: ~95
A len E. Ertel, E.qulre
One EIKutlve Plaza, Suite JOS
330 Pine Street
Willlam.port, Penn.ylvanla 17701
(717) 316-J814
JL
INVESTMENT REALTY IN THE COURT OF COMMON PLEAS
SERVICES, INC. . CUMBERLAND COUNTY, PA
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Plaintiff, .
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v.. . No. 94-5969 Civil Term
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.
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FRANK T. PEHANO, . CIVIL ACTION - LAW
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Defendant. .
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ti!lIJa
TO DEFENDANT NAMED HEREIN:
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 claim 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 of any money claimed in the claim 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 THIS PAPER TO YOUR LAWYER AT ONCE. If' YOU 00
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.
Court Administrator
Fourth Floor
Cumberland County Courthouse
Carlisle, Pennsylvania 17013
(717) 140-600
af Iln r {~/I 1/1hQ
Allen E. Ertel, Esquire I
AUornt). for Defendant
10 1107514
INVESTMENT REALTY . IN THE COURT OF COMMON PLEAS
,
SERVICES. INC, . CUMBERLAND COUNTY. PA
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Plaintiff. .
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VII. . No. 94-5969 Civil Term
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FRANK T. PERANO. . CIVIL ACTION. LAW
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Defendant. ,
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I. Defendant is without knowled8c and information to know IS to where the Pllintiff il
inc:orporated or where it is OOin8 business at the present time. When PlaintitT c:onducted bulin"l
with the Defendant, they were located in a ditTerent location. Defendant is liso without
knowlcd8e or infonnation IS to whether they were a reli estate broker fully lic:enlCd by the
Commonwealth of Pennsylvania and whether or not Brian Oross WIS fully lic:enlCd by the
Commonwealth of Pennsylvania. After reasonable investiption. this is I matter thai needa to be
proven at trial.
2. Admitted.
3. Defendant, after reasonable investillltion, does not have knowled.e or information
suffic:ient t!l form a belief It to the truth of the matter IS to whether the Plaintiff i. enppd in the
lIIIRI8ementand related activities of real estate sales. purc:hases. and manllemenl. In addition.
Defendant is without information and knowled8e as to Plaintiffs lIlIIIIIinll mobile home pull..
As far IS buyinl and sellinl mobile home parks.. it is admitted that the Plaintiff i. in the bu.incu
ofreprcscntinl people buyinl and sellinl mobile home parks.
4. Admitted.
S. Denied that Defendant paid Plaintiff repeatedly for rendered services. There were
occasions when Plaintiff was paid by Defendant for services to him in reprd to the purchase of
mobile home parks. but it is denied that Plaintiff was ever paid for the management or searching
for mobile home parks. The only time Defendant paid Plaintiff, and this was on only various
occasions. was when, in fact, the purchase was completed.
6. Denied that Plaintiff was engaged by Defendant to search for a mobile home park in the
central Pennsylvania area fer Defendart to purchase. In fact, the Plaintiff approached the
Defendant lIJld said that there was a mobile home park for sale and Defendant knew of the mobile
home park previously. In addition, it is denied that there were discussions between Defendant
ad Plaintiff whereby Defendant agreed to pay to Plaintiff a finders fee or commission calculated
on the basis of the price paid for any mobile home park purchased by Defendant. Furthermore,
there was no agreement tl) pay anything for a search by Plaintiff, advice by Plaintiff and efforts by
Plaintiff. The only time that Defendant has ever paid Plaintiff was for completing a transaction.
It is denied that there was any oral agreement reached where the Plaintiff would search for ad
attempt to locate suitable projects for Defendant to purchase. It is denied that in exchange for
these services, Defendant would pay Plaintiff a fee equal to 5% of the purchase price he paid for
ay properties so purchased. It is further denied that the Defendant agreed to pay the Plaintiff for
anything t.) do with the "Country Manor Mobile Home Park".
7. It is denied that there was any oral agreement between the parties. It is further denied that
the Plaintiff searched for, identified or located, or made known to Defendant an opportunity for
Defendant to purch..~ a mobile home park located in Cumberland County, Pennsylvaia, known
as the "Country Manor Mobile Home Park". This park was known by the Defendant prior to any
COIl~ with the Plaintiff, and further it was advertised in the Wall Street Jouma1 by the owner of
the park.
8. It is admitted that Plaintiff arranged for Defendant to visit and inspect the "Country Manor
Mobile Home Park". It is admitted that Defendant expressed interest in pun:hasing and ac:quiril18
the mobile home park and that Plaintiff did continue with his effons toward that end without any
request by the Defendant.
9. It is admitted that the Plaintiff worked with the Defendant; however, Defendant i. without
knowledge or infonnation sufficient to fonn a belief as fo the lrUth of this statement that Plaintiff
worked with the owners of "Country Manor Mobile Home Puk" Md, after investi8ltion, it is
denied that Plaintiff did so. It is further denied that Defendant relU:hed a final I.eement with the
owners of "Country Manor Mobile Home Park" for the pun:hue of that property. In fact, the
lIIJI'CCIIlent was not completed and was never reduced to writinS as required by law.
10. It is denied that the Defendant concluded his purchase of the "Country Manor Mobile
Home Puk" on substantially the same tenns and conditions as originally Resotiated by Defendant.
Furthennore. it is denied thlt there was any assistance and efforts of the Plaintiff for the pun:hase
of "Country Manor Mobile Home Park".
I l. It is denied that the purchase price was $9,000,000.00.
12. It is denied that Defendant was 10 pay Plaintiff ~% of the purchase price of the mobile
hOllle park. It is furthel' denied Ihat the Plainliff I~ated the mobile home park.
13. It is denied that the Plaintiff perfonned hi. obli8ltions under any qreement because no
qreemcnt wu rcKhed. Further it is denied Ihat there is MY fee due to the Plaintiff by the