HomeMy WebLinkAbout95-01851
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HARRISBURG MEDICAL MANAGEMENT,
INC. ,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiff
v.
DOCKET NO.
tjS'. 11'';1 fit,.: 't ,&"",
ROGER C. PETRONE,
Defendant
CIVIL ACTION - EQUITY
COMPLAINT
1. The Plaintiff, Harrisburg Medical Management, Inc.
(hereinafter "HMM"), is a Pennsylvania corporation with
offices at 17 South Market Street, Harrisburg, Pennsylvania
17105.
2. The Defendant, Roger C. Petrone (hereinafter "Landlord"), is
an adult individual who maintains offices in a commercial
office building, with parking, located at 4076 Market
Street, Hampden Township, Camp Hill, Pennsylvania 17011
(hereinafter the "property").
J. On or about May 20, 1992, HMM and Landlord entered into an
office lease (hereinafter "Lease One") whereby HMM agreed to
lease from Landlord approximately 4,600 square feet of
office space together with certain parking rights (the
office space, common areas and parking lot are hereinafter
jointly referred to as the "Premises") at the Property. A
copy of this lease is attached hereto as Exhibit "A" and
incorporated herein by reference.
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4. Pursuant to Paragraph 1 of Lease one, in addition to the
office space which was leased, the Premises included the
unlimited and "non-exclusive right to the use of all common
areas including hallways, walkways and parking areas on an
'as available' basis."
5. The real estate listing for the Property dated February 22,
1993, which was supplied by Landlord's agent, the realtor,
provides that the property includes, among its amenities, 75
parking spaces for the use of tenants of the office
building. A copy of this listing is attached hereto as
Exhibit "B" and incorporated herein by reference.
6. This real estate listing was provided to HMM by the realtor
prior to HMM entering into Lease One and was relied upon by
HMM.
7. HMM operates a mUlti-physician practice at the Premises
which provides primary health services to a broad population
of patients.
8. Upon relocating its operations to the premises, HMM
experienced an appreciable shortage of available parking
spaces for use by its employees and patients.
9. HMM notified Landlord of this shortage in early 1993. A
copy of this notice is attached hereto as Exhibit "C" and
incorporated herein by reference.
10. In response to HMM's inquiries regarding the shortage of
parking, Landlord notified HMM that he was leasing 20 of the
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75 parking spaces located on the property to persons or
entitities other than HMM for their exclusive and private
use. According to Landlord, these 20 spaces were "limited
common elements" subject to a Declaration of Condominium
which was filed in the Cumberland County Recorder of Deeds
off ice. t:otwi thstanding the Landlord's representations
concerning these twenty spaces, a review of the records in
Cumberland county Recorder of Deeds Office has revealed no
condominium documents have ever been filed by Landlord for
the Premises.
11. The 20 spaces which the Landlord alleges to be limited
common elements are at the rear of the Property and are
shown on a parking diagram attached hereto as Exhibit "0"
and incorporated herein by reference.
12. On or about February 23, 1993, the parties reached an
interim agreement (without prejudice to either party's
claimed rights) to alleviate HMM's parking shortage for the
Premises; the Landlord agreed to provide HMM with use of the
20 disputed parking spaces and with keys to access the
nearby door and elevator.
13. This agreement was entirely ineffective as the Landlord
neither provided HMM or its employees with access to the
rear parking spaces, nor provided HMM with the keys to the
nearby door and elevator.
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14. On January 29, 1994, because of its need for increased
office space HMM entered into a second lease with Landlord
(hereinafter "Lease TWo") for additional office space at the
Property whereby HMM agreed to lease an additional 1,155
square feet ("Additional Premises"). A copy of Lease Two is
attached hereto as Exhibit "E" and incorporated herein by
reference.
15. Lease Two contained the same parking provision as Lease One
(see Paragraph 4 of this Complaint).
16. In May, 1994, HMM applied to Hampden Township for a building
permit to renovate the Additional Premises leased by HMM
pursuant to Lease Two.
17. At the end of May, 1994, the Township rejected HMM's
building permit application because the Landlord had failed
to provide the requisite number of parking spaces on the
Property as required by the Hampden Township Zoning
ordinance.
18. The Landlord's failure to comply with the parking.
requirements of the Hampden Township Zoning ordinance
resulted in HMM experiencing a two month delay in its
occupancy.
19. The building permit for the Additional Premises was issued
by the Township to HMM on or about July 29, 1994, after the
Landlord agreed to re-stripe the parking area to provide for
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more parking spaces and to construct additional parking
spaces.
20. The Landlord's agreement to provide more parking spaces
through re-striping of the parking lot and to construct
several additional parking spaces on the Premises had only a
negligible effect upon the parking shortage as the Landlord
still refused to provide HMM with access to the 20 disputed
parking spaces.
COUNT I - SPECIFIC PERFORMANCE
21. Paragraphs 1 through 20 are incorporated by reference herein
as though set forth in full.
22. Lease One and Lease Two are valid contracts between the
parties.
23. HMM performed all material obligations on its part under the
Leases,
24. Landlord breached the Leases, including but not limited to
Paragraph 1 of each Lease, by failing to provide HMM, its
employees and patients with access to all parking spaces on
the Property.
25. Landlord breached the Leases by entering into contracts
exclusively leasing parking spaces on the Property to third
parties, when such property had already been leased to HMM
on a non-exclusive basis.
26. As a direct and proximate result of Landlord's breach of the
leases, HMM has suffered damages in the form of overpayment
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of rent for the portion of the Premises which it has leased
but has been prevented from using.
27. As a direct and proximate result of Landlord's breach of the
Leases, HMM's business has suffered as it has not been able
to provide adequate parking for its employees or patients,
which has resulted and will result in a loss of business to
Landlord.
28. The Premises, as real property, are unique and HMM has no
adequate remedy at law to compensate it for use of the
twenty parking spaces.
29. HMM has been irreparably harmed as a result of Landlord's
unlawful refusal to allow HMM, it's e~ployees or patients
access to the twenty parking spaces.
WHEREFORE, the Plaintiff, HMM, demands judgment against the
Defendant, Landlord, and requests this Court to enter an Order
awarding the Plaintiff:
(a) the amount of all rental overpayments from the date of
the execution of Lease One, damages for loss of
business due to the lack of adequate parking, plus
prejudgment and post judgment interest and costs of the
suit;
(b) an injunction, preliminary until hearing and final
thereafter, enjoining the Landlord from exclusively
leasing any parking spaces on the Property as HMM has
acquired the non-exclusive rights to use such spaces
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pursuant to the Leases entered into between the
parties; and
(c) such further relief as may be appropriate under the
circumstances.
COUNT II - OUIET ENJOYMENT
30. Paragraphs 1 through 29 are incorporated by reference herein
as though set forth in full.
31. Landlord breached its common law obligation to provide for
HMM's quiet enjoyment of the Premises by entering into
private contracts and leasing real property on the Property
to third parties, when such property had already been leased
to HMM.
32. As a direct and proximate result of Landlord's breach of
HMM's right to quiet enjoyment, HMM has suffered damages as
set forth in Paragraph 26 and 27.
WHEREFORE Plaintiff HMM demands judgment against the
Defendant, Landlord, and requests this Court to enter an Order
awarding the Plaintiff:
(a) the amount of all rental overpayments from the date of
the execution of Lease One, damages for loss of
business due to the lack of adequate parking, plus
prejudgment and post judgment interest and costs of the
suit; and
(b) an injunction, preliminary until hearing and final
thereafter, enjoining the Landlord from exclusively
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leasing any parking spaces on the Property as HMM has
acquired the non-exclusive rights to use such spaces
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pursuant to the Leases entered into between the
parties.
(cl Duch further relief as may be appropriate under the
circumstances.
COUNT III - FRAUD
33. Paragraphs 1 through 32 are incorporated by reference herein
ao if set forth in full.
34. IIMM was induced to enter into the Leases with Landlord upon
the representations made by Landlord and Landlord's agent
that the Property had seventy-five parking spaces available
for use by all tenants.
35. Landlord knowingly, intelligently, willfully and with a
reckless disregard or a wholly unwarranted disregard of
HMM's rights or interests, misrepresented, concealed or
otherwise failed to disclose that HMM would not have access
to all seventy-five parking spaces on the premises.
36. Landlord knowingly, intentionally, willfully, and with a
reckless disregard or a wholly unwarranted disregard of
HMM's rights or interest, misrepresented that the twenty
spaces reserved by the Landlord for his own use were limited
common el~ments under a Declaration of Condominium filed
with the Cumberland county Recorder of Deeds.
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37. Landlord's statements regarding the availability of 75
parking spaces were made with the intent of inducing HMM to
lease the Premises. Further, Landlord's statements
concerning the parking spaces which were purportedly subject
to the Declaration of Condominium were intended to prevent
HMM from taking legal action to enforce its rights under the
Leases.
38. HMM justifiably relied on the Landlord's representation
concerning the number of spaces available for HMM's use on
the property before it entered into the leases.
39. HMM justifiably relied on Landlord's representations that
HMM did not have the right to use the parking spaces
reserved by the Landlord because they were limited, common
elements of a condominium lawfully created and recorded.
40. The malicious misrepresentations made by Landlord were made
in bad faith and with wanton disregard of HMM's rights under
Lease One and Lease Two.
41. As a direct and proximate result of the Landlord's
fraudulent misrepresentations, HMM has suffered damages in
the form of overpayment of rent for the portion of the
Premises which it has leased but it has been prevented from
using.
42. As a direct and proximate result of Landlord's breach of the
Leases, HMM is presently being prevented from using 20
parking spaces on the property which have been unlawfully
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reserved by Landlord for his own uses. Landlord's actions
have caused HMM to lose a substantial portion of the benefit
of the bargain anticipated by HMM.
WHEREFORE, Plaintiff HMM demands judgment against the
Defendant Landlord and requests this Court to enter an Order
awarding the Plaintiff:
(a) the amount of all rental overpayments from the date of
the execution of Lease one, damages for loss of
business due to the lack of adequate parking, punitive
damages in excess of $20,000, plus prejudgment and
post judgment interest and costs of the suit; and
(b) an injunction, preliminary until hearing and final
thereafter, enjoining the Landlord from exclusively
leasing parking spaces on the Property as HMM has
acquired the non-exclusive rights to use such spaces
pursuant to the Leases entered into between the
parties.
(c) such further relief as may be appropriate under the
circumstances.
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FEB 19 '93 12150
FR
CAPITAL HEALTH SYSTEM
PA';E,005
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'n-:E IAIW i;ooSE
IjfFICE LEASE
4076 Market strei!t
Cat;;! Hill, Penr.sylva:Jiu, 17101
'I:-!IS !ZAS:: :rece this
and bGt:...een,
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, 1992, by
ROcer C, ?etror:l~
3920 ~~ket Str~et
Ca:i!? :ill 1 , l'er.r:sy 1 van.i a 17011
<herein called "Lessor")
i.ND
P.ar:isburg ~cal ~agme::t, Inc.
a ?er.r.sylvania corp::::aeion wit.!l offices at
157 paxton StreL1:
E=.:.sbu..-g, l'e::.".sylvaIlia 17101
(~e:-ei."1 called "!..;:;see'l)
W!~iES~w'.~:
" In 'consicleraticn of, apd ~"1C!e:c erA subject. to, the mltual ccver.ents,
cocdition, and cor.sice:cation herein, :re<:ited, lessor and lessee, illten<ili:g to
be ,legally ~ed hereby, agree as folla...-s:
1. r......~ed Premises:
, ; ," Lessor hereby lets and ~es to ::.cssee, who hereby l~es f...-a:I lessor
that tIOrtion of the oreni.ses sit'.:ate at 4076 Market se;eee, Cam:l Hill,
CUr.tlei:-land county, P1. located on the :first flclOr of the buildinq contair.i.'1q
4,600 sqUare feet. and is = :fully shc:.'11 on t.!le sketch plan at;~cIJed hereto
as Exhibit A hereof. lessee shall also have the non-exclusive ~~to t.!le~use.r
..:<?~.al,l,,~~,areas: includir.q.llll.11Ways, '~lYS and parilig areas on an ,"as
r ~ab1l!!;.f,basis;)
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, , ,,' ':'" ieS's~ shall have and hold the de:ilied prB1li.ses for an initial teou of
f.l.veyear&"and seven llDllt.'1s, said te..'ll1 CQ1JlleIlC:i:Jg Aucust 1, 1992 and ecd.i.ng
F~ary'l;' 199B. 1'rCvided that: lessee shall have the opticn, unless Lessee
shall then: be, in default herel1llder, to extend tbis lease for three (3) funber
five (5) '/eM: extensions in aCcordance '/lith the ter.rs :urt.W: provic!ed in tlli
,
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FEB-19-93 FRI
11: 55
EXHIBIT ^
2318233
FEB 19 '93 12:51
F ~'
CAPITAL HEALTH S',";TEII
PAI;E , 006
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lease. ~e ::ot!.ce of ootio:1 to e::o=cise S1lC.1 ,~::e:~s:.ons shall be c:.Ve:l by
Lessee to Lessor no later than six (6) lll:lnths ;?r.!.or ::13 tl:e e.:'q)iratlro of the
then current. lease te.I:1l.
3. Base Rent:
Duri.!:q the initial tenn of this lease LesSe!! shall pay ta Les~r, as
base rent the follC'1Ii..1q cr.-aunts:
Months 1 through 6 .!.r.clusive '" 54,200?A-r ~nth.
~~:lt:l:s 7 throuch 30 inclus.!.ve '" 55,000 ~r :iOnt!l.
Mor.t!-.s 31 tl'lrcUgh 67 inclusive'" $3,678 ?er :iOm:..'l.
!n t.he eVent Lesse!! shall e.'tte::d tl:e lease ter:n hereof :.ll accorcance
'.'ith the prvv.!.sions hereL1 contai!:cd t!\eretor ::be i:ase rent ciuri.1g such per.!.od
of e.'<te.~.sio:1 shall be $5,000.00 per ;ronu subjec: to t.':e aCditional rent
adjust:nel11:s hereL'1 belC'.... proviCe:i in parag:;aph 4.
'4. . ~em: !::c::'ease:
. .' !.esSe!! shall ':>o."V to Lesscr ront:-,l-t as eci:i!.t.!.or.al rent Curi.::g a:i.y renel>'a1.
te::rJ i:ere~c!er: .. .
(a). a's-.:rn equal to ,:,.-enty-five (25) perc= of e..'1'f !,::C':"ease i.'1 ::!;e
COIl5\:mer 1>::':'C6 :nc!ex (all produC't.) , D'.lI'ir.g che fi=~ five 'lear exce::.sicn, ::be
Consu:ner 1>::'icc :r.dex ecii\lst;;'.eI:t s.':all ut..!.lhe t.':e C,?, I, as last :Jublished :"'1
the wall St:'6l!t. .j'~-::a1- on or pr.!.or to };ove:;ber 1, 1992 as <;.':e baSe
calC'.uatiro and tr.at lest ocblls.':ed on 0:' before Nove:f.:>o'>-r 1, 1997 as ::::e
adjusti:.q :aC""..Dr. Lesso:' i.'ill ::cti.-oCy Lessee 0:: t!-.e i:u.tial adjUSt:i.e.'1ts for
C.?!. on,or before December 31, 1997 ~TIich adj\lS~t. sr;ul be effec:ive
M9.rC.'1 1, 199B, ~eree...'"te:' r.at..!.ce of edjUSt:re.1ts shall be :rec!e by Decmeer 31
of t!-.e last year of each five (5) year axtension t.o be effective Marc.'! 1 of
th~ following "fear; the <!djust:llents shall C!p!?ly to t,'!e base rent as otherNise
aoolicable hereunder, end,
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.. , (b).the Lessee's procortio:::ate share of a:ry increases in the following
ela:>6.'JSe5 at"...:;'~table to the orenises at 4076 1I..ar'.<et Street., to wit: taxes,
inSurance, utilities and llBintenatce, lawn =e, snow and tresh re:raval.
~sees, propor...i.onate share shall be dete:ouined by a frace.:.on in which the
4,600 square feet. leased to !.essee shall be 'clle cl:lneI'ator end the total
lee5able space in the preuises 14,587 sq-.:are feet: (31.53%) shall be the
denCminator~ Increases to the variable items described above shaJ,l be
calculated ilsing the aCl;.:a! costs inC'Jr::ed Curing ter.u f:an August 1, 1992
through .;llly, 31, 1993 as the b!lse year, The i.c.itial adjuscrnents will be
, 'cillcu1ated using the act1ml costs incu...-:ed during the period frau August 1,
1993 t.h:rough JUly 31, 1994. Lessor will ncti..-<y Lessee of t..!)e a.nr:ual
adjUstments ,on or Pafore SC9t~ 1, begjJ:n..!.r.g in 1994, in each year dur.i::g
the teJ:lll' hereof or eIrf extension thereof to be effect.ive October 1 af the same
. year.
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FEB 19 '93 1<::51
FR
u,p I T'<L HEHL TH SYSTElI
F,;'3E,007
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(c) Provided, hc;r,.'ever, tl:llt: the rose !!I:d acldi':.io:Jal rent: ~Ycble
heieur.rler to be ef:CC'".J.vc Fcbr~/U"I 1, 1998, sball be no less t.han $5,400 per
lllOnt!l plus a....y additional a:rounts clue L-1 accorda:~ce wic.'1 cl-.c previsions 0:
paragraph 4 (b) hereof.
The adjll:rt:::lents herei.'1 described shall cont!.r.ue to apply clu=!.::g the te..'":11
of any extension hereof.
5 I ?cssess:.on:
Lessee shall be given possession or. the ce:;dsed ?renises cpon
Call1211Crr.er.t or. t..':e tern of t1lls Lease,
6. . utilities:
Lesc.or '..till p:ov:.ce and sr.all ;2Y :or heat, elec-.:ic1t'f, '..-ate:' and Se';.-cr
ar.-d air cc;-.c.:,::ior.i::c. '!he cbl!.ca~cn 1:0 crovice heetba al:d air cc::ditionina
sr.all be limited to - r.o nore t..':aii s.ix':;y (6'0) hcurs per ....ee.lt. Heet shall be -
o::ovic!ed ':"''1 such :l'erJler as to crevice a mbi::r..:m tEm:>erat\:re or. 72 dec:::ees:
,Air conditiorJ.::g shall provide' a i:l3Xi..':l-'1I te:perature of 72 degrees. 'Lessee
shall be resp::r.sible :or janitorial services :or cl:e leased space, !er.dlord
s1'.al1 orovic!e ianitorial sarnce to c=n areas of t..':e cremises, ?:ovic!ed
4.._Lft:;' _Lftt r~s~ SLft" ..... _ft~_.'I.,'.. :-r ft'~-'c ,,_'11_. se~"c"
___.......~ -...-. .......~....... ........_ _. _~.........~.J.....J__ _"" '0;;_..........._ ...1....._.." _v......
at"".:ibutable ':0 t..':e leased :::::e:'':'Se5 i:J excess or. S250, 00 :.... ar.',r ::0::-:"1 ar.d
lo.'lIter BJ1d se..'e!' c:-.a:ce b e.~cess of SlSO,QO eer cn:arter et-:=ilii:Uble ':0 :::.e
leased premises. :=xee-5S IltDit"! bilE;:g sWl ;,e scir..it':ed by !.esso::: ':0
lessee ....iJic!1 sWl be ?tic! i::'/ Lessee wic.'li., th.!.tt/ PO) Cai'S c:: ::ece:.;:;t
the.""'COf .
7 . " ~i.'te.".ar:ce and Reoairs:
(e) ., 'l1le' Lessor will rrai.ntain in ~ condition and repajr t..':e
st..-'uctura.l portions of the c!emised preJises, the exterior t.':ereof, t..':e roof,
walls, Cownspol1ts, gutter, pipes and cor.ciuits e.'(l:erior to the builc!i::g li::e,
. ~ areas" sidewalks and curbs adjacent. to the demised preui.ses and make
'all'maJor facilities and ~..nt, unless suc!1 ::cpai.:"s or replacerent.s are
" necessary or c!esi.-able ciIle ::0 the negl!.gence of Lessee, Lessee's sublessees,
concessionaires, b.1.siness invitees, licensees, agents, servants or e:tployees.
. . . ., (b) lessee, at its own cost and expense, '...ill keep in good condition
lllXi ,::ej;lair the interior of the dEmised premises, c!.a:rege 'at fi:'e, elme.."Jts and
" reasonable ,weaJ:"and tear exx:eoted. At the CXl:>iration or t:e::::1i::ation of this
Lease, Lessee phall celiver uP the denised premises, and at the ti~ of such
c!ellvery,. the bterior of the c!emised premises shall be ~'1 goo::i cor.dition and
""reoair,. orclinary '.roar and tear excepted.
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". ,,' (c), Lessee shall not per:c::n a.'T'f ac"...s <:1:' carr! on Mrf ...ac-.J.ces lo.i1ich
m:lY illjt:re t.':e dEmised premises or be a nuisar.ce or menace to the health or
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,:';PITHL HEHL TH SYSTEII
PH'"E . 008
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FEB 19 '93 12.52
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safety of other te:umts. ~Gce shall flot am" cny tr.:lSh or gari:>Jc;;e in or
about t.'le c!enisc:l p:e:o.:.sc:l, tcsS'CO shall not :tee? or display eny ~--c:handise
or other itans CD or otl:er.M,.Ge obstrJct the ca:trCn arees of the ent.!=o
proj~, The pll:::'bi::g :ac:.1it!~ s!-.al1 ~,ct 09 \l~ed :or any po.:.::..ose ~'ler ~"''-'1
that for 'o'I\1ic.'1 they 'I/e.':C COllSt:'Jcted and no :0:~0:'<;:1 sul=sUll:CO of a.rry lti:.d
shall Po th..'''c",n therein, Neitl:e: te9llee, or i';5 agents c: elplcyees sl'.al1 in
l1IlY '.7rf ceface any '.-alls, ceilln93, ~it:.ons, floors, ,~, stone, ~
-..ork or any ~ 0: the ce:t'lsed p::~ses.
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, ,(d) Tho cost of cny changes, i;rprovenen'~s, alterat:.cr.s or 11.:,,0 lr"-to:er,
within tho c!~.iscd pre:nises req.1l=ed to be ~,~ by any geve......!:"O: or
goye=:lE!ntal age.'1cy or i:.str.:me:l':ality, il;c1udt....g eny autl:o=lty or c::rn:U.ssion,
by reason of Lessee'S specific ":ip3 of \:Se Br,dior ocC'J?'lo::.cn of the c!rolised
pre!1lises sr.all be ?'lid for by !r-ssee at :.ts (];on ccst ~_'ld e.oq>.....se. Sl:C'Jld
. Lessee fall to psy ar.y such cost, Lessor ;ray pilY d:e sarre, and the a-;c~...tS
thus paid sl'.all be payable 'a'/ Lessee as acidit:.m'.ai rent. A.~ char.ges,
!.trpro\Ie:Tf'...r.tl. altera-:.ior.s cr ille :-~t~o:- .....it~"\ the cien.Lse.:i prem.ses, :-eq~cd
to be :raCe 171 en,! sove..,j,er.t or ?e::....er.tal al;e:JC'f or !..-.str.:re.'1tali';-f,
iocl'Jding any autl:eri1;'f c. c=ission :oot occ8aioned ':7j Lessee's spo::o:i!ic '=;.-'?3
of \lse artJ./or: ocC'.:pat!.c:J of -:1:e c!emised ?re:l!..sl~ shall be paid :er '::;y Lessor.
Lessor acrees he -.d..ll be re..r:oo;:s!.,:lle :0:' c~l.la:1ce ....,it..~ ":..,",0 =CC"Ji=e:rE:i':S
reca..~c r.aJ:Cica~ access" ':0 all c:::r.r:on are;!.S ~"';::Cseci '~~ce= sta,;:e 0:
federal ::ecu1at:.o~ '.-hie:.. are ~,ot SPBCi!!.cally recul=ed as -:~e res-.ll-;: of
Lessee's cCC'Jp.:!.nC'/ 0:: -:::e pr~es.' '
(e) ,Lessee shall a-;: !.eSsee's sole e.-:pel:se, and !..'1 acco::C&...ce 'IIitll all
aP?licable S"..ate, zeC.e...-aJ., a.'1d lcx:al :::eqJlat!.ol',S, :;:::\..,~~:1 :::erove a::c c!isp:se
of aJ,1 medical and e::v: -or::r,entally l'.a::e..-c!ous '..15to frc;:;:\ ~e leased ?=e:1lises,
Lessee he..o-eby agrees -':0 :"'1cam:....&y and savo har.r.less Lessor := a:t:'f loss or
llebillt'f arisbg f.."CIll t.l)e use, ~erage, or di:;p:lsal of such ::ICd!.cal e:.d/or
anT. ::or:r.entally heza..'"l:iO'JS '.as1:e,
8., . ~liance ..-it.\', !2w:
Lessee agrees ';0 observe and cai?ly'IIit.'1 all statut:es, ordir.a::ces,
rules, oroats, ::egulat!.or.s, reqJirements and lltws nC'" b effec-;; or 'Mch ;ray
be euacter;l during coniliullnce of t.'Us Lease or any renewal hereof l::f any
nunicitnl, county, state or :eC.era1 authorit:'/ l)r other publie body or age..'lC'/
having jurisdiction over the dcm!..sed premises ()r over any 'a'.lSir.ess Lessee
. conducts up:ln the ceuised premises, aild Lessee sllall ir.c!emL."y and save
hai:mless Lessor fran non-co:t;l1iance wit.... tl:e SlUOO. E\lrt."oer, Lessee shall
neither conduct nor cause nor poolt to be cor.ducted arr'f nuisence ,b, upon, or
,about ;:ho,danised pren:.ses,
9.;'Vse of' PreUl.ses:
. . " . r.ess:ee shall use the demised pre"..ises fOl: medical office use a::d for ::0
other p-.u:pose. The pre:nises shall be used and ocC'.:pied L, a safe, careful er.d
: proper lMIU1er: and no nu.Lsance, ~-ade or ocC'_"?lIc'on which is k::C\'o'l\ i:1 the
4
2;18233
p, (1:3
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FEB 19 '93 12.53
FP
O:';PITHL HEHLTH S'o'STEII
P';.;E 0 009
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o
insur~co treeo as Cl':'"~"":l or espec:.a11y ba::a..rdous shall be pe::-.J.';.tcd ':l:e::ei:l.
Lessee shall net: cOllciuct: ;my act:.vity "nich eit..':er shall ...aee void or voidable
erry insurance on the daniscd prc:;C,scs. In the event that any of !.ess~' s
act.!.vities .shall cause an increase in Les$Or's i::surllllce F'eID.\;l'S, Lessee
sball be ::'E!5FOll5ible for ar.d sl:all pay es c.-dc!itional rent the =''it of such
i:lC=ee.!3e'i.i orem:...:;n a1:';::,:.butal:>le $Ole1." to !.eSsee's activities.
" .
10. : Alteradon - !J.e!:S:
'. ' The Wtill alterations a..--d :..oprcvem=nts to the demised preni.ses sr.all
be const:rUcted at Lessee's cost. Lessee shaH oive to !.esso::' tte :::.ch;: 0:
first. ref:.:sal to prcvice labor and l1'ate::ials :'jr a ntlt::ally agreeable scope of
. wOrk .c!esired '='1 Lessee q::on t.io :0= -:=5 and conditions as e:ry b:ma :ido
. "He:: by =y -:..'U....-d :a-'"i' cont.""actor \-T..ich !.ess.~ shall desire to accep'O: 0
Lessor shall :-.e.ve sevCo'1ty-two (72) hccrs afte:: presenta::ico of suc..i offe::, -:0
accept or =ejec-: such ::ight of f.i.::'st refusal. Lessee shall :;-ci:e no
alteratiocs L" or acdJ::.!.o:,.5 or !..~I"CJ\I'"e'Cer.~s to t.he cer.i.se:i ore-:dses 'o1l'i,,:~~~
the orier '-h'I'it::e:l eo~en~ of the tesso:;. All 5'Uch a.l~e::e..~:.c:':s c::' ':''i7:rovat'Jll='...nes
m=de"by Lessee (e.':ce;;t: r.ov2ble o:fice :-.::::-..it:.:='3 and profession t~~es) shall
an -:..~e cpt!.on of '":...':e !.esso::, b=cc.tii"3 t..~e p=o;e==-j of. !..esse:" at t:.e ~e:=d.=a1;:!.C:1
of ':.':e Lease. Should. !.essor r.o~"y Lessee in 'lIt'iti::g s.:.:~y (60) Cays priol" ':.0
the exPiration of tte initi.al te.."T.l or any exte.".Sicn hereof tJ'.e.t !.eSsor coos
noe deSire. er:y or all al'.:e=atior.s or :.:t;'rovall~:::ts ins-..alled ';;f !esSBl!, Lessee
willl"ero:J\Ie.such alte..""a::ior.s or i::;Jro.,,=ts Mt: c:esired by !.essor and repair
ar:y CBn'aC]6 caused by such re:roval. !n '.:l:e eve:1t: :.essor :e..!.ls to give t!:e
aforesaid no-...ice '.:0 ==:c said :..-;;:rover.e.-:ts ao: 2eas:: sixt:"/ (60) Ca::s prior to
t!:e e.wL""ation of ':.':c -:e:::l, then Lessee sr.aH :~Ot be l"eSlXlnsible :or -:..':e
==-aiof said i:mrove:oem:..'; or '.:i:e c."'X'Cr.se t..':o~reof. Il !.eSSOl" c=lies w:.':.:l
t.ie aforesaid notice requirenents, Lessee sr.all also repair any ~ge caused
to t.':e danised pr~.ises by t.ie kstallation or ::eroval of al'.:e..'T.adons,
ad.c!itions or illproVe:oen'.:s by or :or LessBl!, and ::estore prenises to ger.eral
office condit!.on. Lessee sball neit!:.e= co nor permit nor cause ::0 be cone e::J.j'
. act or thil:q which shall c=ea1:e any mechanic's lien or claiJns for Uen a~
the c!enised preni.ses or any part the=eo:. I.es:;Bl!, Lessee's successors and
assigos, coot=actors, subconuactors, labore::'s, l1'ilterial men and all persons
wiiatlSocVer hereby '...uves, releases, disc2~ ilr.y and all cla..LlIS aNJ/or for
the furnislili:gs or c!oi.'1q 0::: any :r.a.::te= or t.hir.c1 per:nl.tted or required by eIrf
. law, ordi:'.ance or reg'Jlation (DOW' or hereafte= in force) or by the tems of '
.' this Lease or othe..'"n'ise (done wit.l or '".j,thout tte knO\oll1 or cons~ of the
Lessor) . lessee l:ereby agrees to il:de:mL."y and save r.m:r:Uess Lessor a.::ainst
any and all 6Uch lie:lS and claims and all COst:I, expenses, and al:tol:::eY's fees
in connection me=Mt..l. If ar.y such liens shall at'.:ach, Lessee, uoen
: reouest, 1mnediately shall give such se<:'.:rity us shall be reasonablo
ilatisfaCl:ory to Lessor L'1 orc!e= to hold Lessor safe and hamless aoaL'1Sl: any
sUch claim or lien and all damages, COS1:5, atumley's fees ancl exper.ses, to
. include a:rj' juC;ne.'l1: or decree which ::light be re.'lde=ed against !.essor, the
deUi.sed premises or Lessor' S inte=es~ i.n the d1!mised prauises on account of
. Suc..i . lien or cld'll.
,
5
FEB 19 '93 12.54
FR' (HPITI1L HEALTH SYSTEII
PAI;E , 0 I 0
,
.. ':..~....
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.~.-.....
...-.
''':'::iL:..
Fir.a1 agreement beb'Oe.'1 the parties reqa..'"tlir.g the scope of '..ork
"Mch ~. be done by Lessor as !l:rt.her dcsc=ibed above shall collstituto a
coodit!.on precedent. to this laese being bindi.'l~ '.:~n the pa.--t.ies hereto. In
the event the ::erties shall :ail to a..o-crove su::h scope of '..ork and
c:a11pe:'\Sation t.~erefor ..'itbin 15 days of execution hereof, this agreenene. shall
be deemed null e::d void and :leit..':er ~f shall have any fu::--...ber obligation to
the ot..':er he::eunc!er.
11. Sl:blel:tlnc:
Lessee sl'.ell not assig:l, Il."lcedet, sublet 0:: ::or::gac;e c:.e dE:li.sed
prenises or er.y part thereof or ?E-'T.lit. ar.y paI't:'J, person, f\::r.l or ccrp:>raticn
to ocC'.:py the c!eml.se:i prenises or any p.;-u-:. the.::eof '.nthCllC t.':e p::ic:: ....ritto.'1
consent. of!.esscr, '.'h!.ch cor.se...e. shall ::0:: be ',:r.reasor.ably '.itl'J:eld.
Provided, hO'.-eve::, t.2t :,essee shall l:ave t..'Je ric;h:: to sl:blease to ar:y c.;s
afflliate.
12.; Suoordir.at~on:
Lessee agrees, t..~.at .i:l. the event the m:;Jt':gasee \:l".cer any l1Dr::c;;a9! ',.ohich
!Jessor has or rray give a~ the demised prenises sr.all so require, to
sub:lrc!iUiC!! the. lien and priori\:'? of -:his Leas,a i.'1 :avor of such ::or::c;ac;e a:'.d
t.o execute any i..-:st:='.:rnents ..iti.ch Lessor or s:uc:, ::ongagce :ray ceeu necessary
and/or ~vJ?_ia::e to acc_,...llsh tta:: ecd. Prlwic!OO that any such
suborc!inatio:l shall !r.c1'.:de a :lO:l-distur"..a.'1ce !?I'O\Iision r~--dir.g Lessee's
. i...te..'"CSt .i:l. t.':e pre:nises i..'1 :0::::1 acc<:..t:able to Lessee, '..ru.ch accegta.'lce shall
not ll.'I::'ea5oi:Cbly be w.!.t.~M':eld.
13., Reoairs:
. lessOr, or !.esser's representatives, wit.': prior .....i-:,:o.'1 r.odce OJ Lessee
may. enter up:ln end i!:.spec-; ~""t c!er.!.sed, prE!1li.sl~ and every part the.."'eOf or
pe....-fOr::l =a.:ti!le rrair.ter.a.,ce therel:o dI:.r:..::g ::or;.al l:rJsL'1e.ss hours. Lessor
shall also bave au\:1'.orit',{ to ence:: ~n ti;e cle:li.sed premises at arrJ tilllC for
the; pIL."'POse of e:f::ec"'...i.r.g ~""ge."'CY repa1=s.
I'.
t'14,;:'dblle5"'and Reoulat1ons:",.
t..., _.-,..1,
..: . I .
..,;,,: 'In eddit!.on OJ the several cove.~t.s conl;ai.'1ed in t.'lis Lease, it is
speCifically ac;;reed thaI: Les$Or I1"lrf f= tiroo 1;0 ti'OO establish reasonBl:Jle
r\l.leS and =egulatiOl".5 apper-...ain.i..'lg to t!:e de:nil;ed preuises end Lessee agrees
to be I;oucd by same. AIr,{ such r'Jles and =egulntions shall be cOllllistenc with
the'te=,of t:lils Lease and shall deal only wil:h t.'le ope..""acion of t.':e building
. in.which, the dBllised prClllises are 1oca1:OO.
,', .'
.'
15 .": Oa:rtaCe" OestrUC"'...:.on end !r.surance:
"
. '... (a) If t.,e cleuised preuises shall be pal.'t!.ally c!mnaged by fJ.:e, EitOt:ll
.' or other casualt"jt so aa to re:Jcle:: saIre part.!.a.:.ly un1:er.ancable, then Lessor
6
2316233
FED 19 '93 12:5~
FF'
O:';PITAL HEALTH SYSTEM
,
PA';E, 0 II
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"'"
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shlllll-'~""'9tly proceed ';0 ~e ::epa.iIs which shall be ca;pleted witl:i.'l ninety
(90) c!..-ys. D..1rir.q ttei:ltedm Lessee's ::ent shall be a001:e:l prD?Ort.ionately
ag to.t.l1e lXlrt.iOll, or Clct:ent of the c!e:ll.scd pr,!:1lises ro.".ce::ed \l.'1te:l8J1t.able.
In the event repairs car.r.ot be ca:pleted ..,itlwl nine::y (90) days Lessee may at
its option, tecuL'lato tl1.!.s lease wit.':out ~.alty therefor by providir.q '...'t'itten
notice to' Lesser of Lessee's desi=e to ter:ui.nat:e. such notice r.nlSi: l:o gill"..n
by LesGee 00 lllter than five (5) Cays after nOl:ice by Lessor of his .!..:lability
to make tho necessary ::epairs witllin the n.L..ct'1 (90) day li:;1itation,
. ., (b) If demised pr~..!.ses shall be so Cam11ged by fire, storn or ot.~.er
casualty so (!$ to rc::eer same wholly unter.....ntahle, then Lessor shall havo the
op:::.on upon ...ri1:ten I:otice fifteen (15) Cays f::an date of sai.d ces-.:a.lty to
re!:i.:.ild or not rel:m.ld t..':e C!e:;dsed crar.ises. ::.'1 the eve:::: !,oassor ceter.-..iI:es
. to rebuild Lessor shall pr~ly preece:! -:0 rel:\1ild or repair tte cet'lsed
. prenises which =eb'J.ildir.q or re'?1iri::q sr.al1 bll ccm:?leteci 'Nit.iin ol:e h\:r.dred
twenty (120) days fran t:..~e date of t!:e ==-=e or ot.ier cesualty. During t..':e
interi'll Lessee's =ant sr.all be abated. ?:;ovided !urt.her ;:r.ac :"'1 the event
Lessor shall cete.'1ti::e ;:0;: to rel:W.ld toie ormt!.ses t.iis lease shall ter.ni.r.ate
.effective wit..'l t,':e Cao;;e of the f.:.re 0= ct:..~er ClIS"~al1:"J'
'.' (C) Lessor shall i...-.sl:re t.':e c!tlllised pre-olises ec;;a:..-.sc physical damage by
.rooson of fire, stoe or ot.'ler =\lalty, incl:.:cling p.xtended coverage. Said
coverage shall be to t..~e full valt:e of de deni.sed prenises, !..ncl\:dir.g the
initial il~l"OVl.rJc.'1ts o.nd a1 ter-..ations ::efe::=ecl. to ill para<;r!!ph 10 ab:>ve,
. (d) Lessee shall ir.sure tl:e demised preni.ses agair.sc general ".,mlic
liBbll.!,ty wit..i cove..'<\ge :cr !:xx!ily i.'1j::rJ at lEest three hw:c!=ed t.':Cl:se:.d
($300,000,00) dollars per i.-.div.:.d-~al ar.d one :nlllion ($l,OQO,OOQ,OO) COllars
per incident and for prope:-:.y c!sr.'age at least t~.'eIlt:'J-five tl:c:r~sand
($25,000.00) collars. Each plIr.:"J shall ::area t.l-.e ot.':er as acici!.tic::al J:.sured
\.lll any such p:>Hcies cu:d sr.all :-.l.....ush ar..'1ual certificates of i.".surance to tile
other i:E r~este:l.
. . (e) Lessor shall mure the ccmron areas. (of the b-illcili:g i... which the
c:!e)lised pre:ll.ses a..""8 lOCSted, as '...ell as the e:oc.terior sidewa.l.Jcs, driveways,
p:n-king aree.s ar.d tl:e li...lte, a<;;ai.::st gene::al p'.:blic liability).
. , .
. : 16', . DireCtorv a::d Sim:ace:
'. '.' . Lessor wil1ltDke space available on tile i:lterior building di=ectory acd
'. CXl:eriot s~ est:abllshed for the demised premises for Lessee to indicate
, its .occupapcy o~ the denisecl. premises. !he initial, sigr.age shall l:o es
. follows: InterJ.or direc-.:ory - 3 li:les, Elct:erior sJ.gnage - t.:soue.re feet to
:be designed.' acd ~ by mutxa.1 egreene.'lt of ::he parties{ h;-"'Eito. t t'
. . 17"i.'UtePavment: .3y$Ciss;)! ~
. Itv.
...' '.; In the' eventazy re.'1tal payment !.S ::eceived by Lessor r.cre t,!:an t.iir.:v
(30) days after the Cue Ca1:e thereof, tessee shall i?<lY to Le!1sor a lats .
~
7
FEB 19 '93 12:55
.
FR 'CAPITHL HEHLTH S~'STEI\
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PA(;E,OI2
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."-"
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~ in an anc.mt equal to five (5) per cant of the llOnthly rental payr.ent
. due to ~te !.es60r for the COG::S of rent collection the::eo:,
18. Default - oist:aim::
. .
In' cassof the non-psy.nent or re.'1t he=ei::l resetved '..dthin tbL-t:'1 (30)
days frau the tiroo or ti.'tICS mentioned for paYlTICo'lt of ~, or in case the
demised prc:uisC9 be vacated or bo cese=tcd by Lessee, Lesso::, i:1 a.'Tf case l'IliY
entt!r.thosame by itself, or Lessor's authorized agent, by le<;;al process
therefor, and thereu[Xln may dis-~-ai::1 for all x'ent due for tl:e r~er of tto
te::n,. relet the said premises for any \1llexpired por'"~on of the t=, receive
rent therefor. Lessee shall be liable for suc!:; distress for said reo:: ar.d
cos-..s, togeee= wit.i =oosor.able attor::ey'n fee:s, end Lessee hereby '.a:.ves the
J?e:lefit of allla...s, ;rade, or to be rrede, axell1?l:i.'1g propert"1 ::= lfN';/ ar.:l
sale, eithe= on such distress, or a.'Tf jucgr.ent obtaL'1ed for re.'11:., or for
c!Blreges recove::'ed for ='I breac..i of tl-..is contract on -:"1e ~ of !.eSSetl.
'19. . Default - C-er.e~l:
(a) rll the event of =y of ':be follcwi.'1g ocC'=ences of "er.::orccablo
default', Lessor shall be entitled to =S".le cIne or llOro of t.':e =e:l9dies se::.
for:.i in ?U"agraph 1BB hereof: -
. (1) Non payroent of ::ent ::or a pe.riod of thi.. -::.y (30) clays
following.the clue date. ProVided t.iat Lessor sl::.a.ll have firs:: c!elivc:ed to
Lessee a wr.:.tten notice of such non-payr.'P-11t at: lee.s1; 20 days before such r.on-
oavrrent. .
,- .
. (2) 3reach of at:'[ of the otter CClvenancs of t.'1is tease or failure
to carply with erry rules or =egulatior.s p=opedy pranulga1:.ed there.lU!er,
prcviced t.iat Lessors shall have given !P..ssee ...'ri1:.ten r.O'"~ce 0: such breach
at:d a pericd of thirty (30) days ...ithin ,,'ilich to =e sarra.
(3) The filil':g of a petition in bankruptcy, whet..'Jer vol\1lltary or
involuntarY, agair.st. Lessee or Lessee's adjuct:.cation es bankn:pt: or insolvent
, in'any court. :
, ~ ' '
,,:. ,( 4) . The ~inCllen-t of a receival: or t..-...stee in b!mkr.lpt:cy for
"~sec;
,. . (5) The lreking of a:q ass~'1t by Lessee for the benefit of
. cr~tors,.,
. .. (b)' ;'teSsor's :reoedies in the eve.'1t of IUl "enforceable default" sh4ll be
:' as' follOl\'S:;
. t, f' . 'I ~
. . . . (1) Lessee hereby e:T!?O"'Us Mr'J Prothonotary of Attorney of any
. . Court of Record to appear for Lessee in arI'f and all aC'C.:.ollS whic!1 rr-ay be
, . . brcughtto recover the rent. duo for ctlo ::e:w.illder of the tam; end/or to sign
.,
a
FRI
12: 0 1
2318233
FEB 19 '93 12:56
F~,"I O:APIT,;L HEALTH SVSTEII
F';';.E,OI3
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....~.~':!;':.',.
,-
"
for Lessee an agr=t for entering in lJIrf ccnpetent. court an ~mice.bltl Act..ion
or Actions for tte ::eccve.ry of such rent, and !..,''l said suits or .L, said
ilmicable Actien or A~ons to COnfess Juccrent, aca.i.r.st Lessee for tl:ll rem:
due, and for the ::eCl: for the ::=i."1ce= of ~ifl te..'":lt, and for inte::es:: and
costs, togct.'1e:- '.-i.th ::easor.able Q1:';cr.:ey's feES; a:~ Lessee he::eb'f expressly
waives and ::eleases all ar=ors and de:ec-..s i:1 en1:eri:1g sllch judgment end
fur'-..he= waives and ::eleases all relief :ro:n a:r:y and all apj?raisenent, stay or
ex~on lm.'S, llO\oI i:l :orce t)r l:eree...."'ter to be feSsed, and also '..-a!.~= t.'10
riGht of inc-J.!.sition on eJ;N real estatel:l:at nay be levied UtXln to colleC1:
. such renW: . ..
(2) ~.ny .ll,ttor.:ey of any COurt of Record of the Ca.lr.t:'1 of
Cun::>erland~, at: tl:e ::equest of Lessor, alm, as the agent. or the attor.:ey or.
Lessee, sign an agreenent for eotry i.., a c~1:ent. court an A.1Iicable ,;ction of
Ejec:::nent and confess judgr.ent in ejec:::ne.."1t. tt.e::eon for ::he said pre:d.se5 ::0
. any term, p:lSt. or prese.t:t, agair.st lessee, and all pe=sor.s claillling \.:r.ce::
. Lessee, wit;a.:t: s-...e:y of execution, or ~, ar.d, for 50 c!oir.g, t:'.is shall be
. a. sufficient ..-ar=ar.t; and the::e\.-pcn, a Hrit. of ?ossession or s-.:ch ot..':e::- 'tII'it
. as :ray tl:en, be <:fl:i.">,.iate :rey !:unediately issue on said juCgne.'1t. all errors
and cefec-...s ..i;l.. em:eri::g such acdon and juc!~nt., or i., the issui:lg of such
writ, or !..., any proc:~~,gs t1:ereon, or c0:1Ce:ni:1q t.."le same, bei::q hc:cb-I
expressly '.aived by Lessee, ar.d by any :e.---son or perSOl'l$ whatsoever claiJni.ng
through, by: er unc!e:: Lessee, and a copy of thls Lease, with any :rrxiif.!.cations
thereof,. beir.g filed in the said Ac'"~en, i~ seall ::ot be necesser"1 to file the
origir..alas a War:ar,t of ;"ttc~ey, ar:t ~cr,l{ or :bJle of Court: to t..~e CC:1t.raty
not'Hiths'-..anc!i::q.
(3) At. ti:e option of !.esse::-, t..i!.s Leese shall dete::;;oJ.::e ~d
beGc...c nu.ll:a::ld voic!, and Lessor :ray ::e-er.1:er ~1X'n, and ::epossess, -:.'oe here.i!1
deuised premises.
.. (c) T!le exercise of any ::-tr.:edy 0: ::e:nec!ies provic!ed herei.'1, by Lessor,
. shall n~ preclude Lessor's exe::eising, conco.::rrently or successively, cne or
/rore other rl!l'ledies provic!ed herein, or authori4:ed by law.
. 20.; Acceptance of l'otice:
. . .' , Lessee hereby accepts notice to quit, reltOVe ==, and surrender upon
. posSeSsion .of, the said. demised prenises to Lessor, Lessor's hei.oos, executor,
eCml.nistrator, successors and/or essic:ns at the expiration of the tam hereof.
21. . Conrl"""':"'dcn:
'. ,
. .' . In the event any portion of tlls prcpert'f .L'1 which the c!enised prenises
. .is situate sha.l:-l, euri::lq the te::::l be..""eOi, be t';1ken for any public or quasi-
p.lbllcuse under any S'tatute or by right of etJ..nenl: demain, or by pr:.vate
. J?urcba.se in lieu thereof by a party ~.rered with eminent darain to an e.'d:el1t.
.that substantiAlly i.~ tho usefulI:ess of the c!emised premises for t..'le
'. pu:q:csesfor which the same are herebY leased, tJ:en either oartV shall have
. ". :. ~ , ,.' . .. - -
. 9
FEB-19-93 FRI
12: I) 1
231823.3
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FEB 19 '93 12157
FR'-' O:';PITAL HU.LTH ~.Y",TEll
PA"E,OI4
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the option to temJ.r.ate this ~ as of the cate 'o'hen Lessee is required to
yield possession. If this Lease or arrj ::'cl:C'o'lll he::eof is tP"",ll"Ato:i because
of co!id=tion, and Lessee, as a cons~e.'1ce the::eof, is =cqu.I.=ed to rem:rve
its u..o....e.. ....'1 frail the danised Premises, !.essee sr.all have the dellt to 5ee.~
. . , ..
re.i:ntlursemeot iran the cond~g party for the cost of such rEm:M1l. Lessee
hereby assigns to Lessor all other ri,.nt, title and inte::esc ~ any cla.ilu it
now has or will in the ::-Jture r.ave ngai:lst the cauronwealt.ll of ?e=ylvania,
tho Uniteel States of jl.'oc.dca, any mln!.ci?ll scl:xiivision, gcver==ta.l bcx:y
~or any ocller pa:":j ~;/et'ed ""ith enir.Co'lt c!a-.cl.n or t.he right of private
purc.".ase in llf!'.1 the::eof, and arising out of my ?'!St, prose.'Ic er :ut::re
e.-<erc.!.se of u.e power of eminenc dall!l.in (or privat:e purc!:ase in lieu t:he::eof)
to 'ccnc!~, ta.~e ar injure all or any portion ef the c!emised preu1sc5 or eJrl
.lnprovene.m:; thereon.
22~ Not!.ce:
Whenever notice sl:all be ci.ven W'.cer tlU.s i\greeJ1ent, it shall be dee;e:i
to ixl CtIli'lleted 'oilp.ll :;-illed by ce..'"t.if!.ed ::ail, poStage prepaid ::0 the cc.':er at
the eddress bere.!..'! above set forth or at such cc.':er adc!=css of 'tJio.:.c..'1 eIlch
part:y rray here.!.::afte:: noti..."y the other in 'oTit~g,
".
23. !:eadings:
Any' bEiedinge precec!.!..r.g the t.c.~ of tl:e !:eve::al paragrepl:s and
subparagnlphs he::eof are inserted solely for t:he convenience of reference and
shall not =stit:lte a p.:ri: of t!'..is lease not shall ::hey affect its rneani::g,
const.rUC"'...:.cn or effec-:.
24. ~ication:
This Lease l1"a'f not l:e ~ied, c!ischar~;ed or tem.ir.ated orally or .L'1
any other ~er tl:.e.n by mtte:l agreerre.'lc si~;r.ed by both par-....!.es !:er~o or
tb.eir ::a.--pecclve successors allli assic;r.s.
25. wai. ve:." of Defaults:
(a) No c!elay or anissioc l:.y eit.':er party he::eto to exercise aIrf right
..or power acc:-mq IlpCl1 con-cat;lllance or default by either party '.-ith ::espect
to; erry of tbe tenus, covenants, or provisions hereof shall iJ:;la.ir aII'f such
right or pa;.oer or be consttUed to be a waiver thereof. ::very such right and
. p::r..oCr m:sy be exercised at any tbne during the continuance of such default. A
...'lliver by either of the parties hereto of any of the covenants and agteeilE!.l1t:S
to be perfocned by t.ie other shall not be COIll;t:rued to be a waiver of any
succeedinq breach thereof or of the breac..i of any other covenant:S or Ilgreenent:
herein cont:ained.
. .' '(b). Lesse9,sball Dot treat: any failure by lessor to perfor:n any duty ar
. obligation under this Lease as a breach of the ~e nar take any ac:tioo
.th~n unless. Lessor fails to cure such default within a period of thi.rt:y
(30) day5 after receipt of written notice fro~ Lessee set:t.1nq t'ort.h said
10
FEB-19-93 FRI
2318233
12: 02
P.14
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FEB 19 '93 12:58
PRI:;E ,015
FF.
(';PI H.L HEHL TH S'!'STEII
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alleged failure. Provic!ed,~, t:.ba1: should t.ie::e be a failure to suWly
heat, air conditionil:q, olectricity and/or "'ater and SC'o'e: t.hro-Jgh no fault of
Lessor, such failure shall not coost1b:te a bl:each of this !.ease nor Qive rise
to My rig!r..s in Lessee. Provided further tlult in the event Les$Or shall fail
to pay",;taxe9i' insurance or utilities in a tiIll<lly manner, Lessee shall have the
right to'nalte such pByllle."lts on beJ>.a1f ef LesSClr in ...hich event Lessee rra.y use
such,~ 'as offsets to Lessee's ren:: obl~,gations hereur.cer.
26 I Pennsvlvania!.c\o1:
'.
This Lease shall be const.'"1.:ed accotdi.J:g to, be subject to, end be
~ed 'rrj the laws of ?e:".JJSYlvania.
27. E:ntire ~.c:::eeuent::
. . . This .L~..::"'.:ruent cor.t.a.i:ls tho e."'l":!=e aC:-E~'1"C !:.et""'~:1 t.~e =a.-;!.es ~e::s:~o
a:1d sr.e.ll ;e b~q t."P='n t.1e parties hereto, t-\;eir heirs, scccessors and
assigns.
28. Re"'~:
. ,
A holrll"q over by the Lessee beyond the te..'1n of this !.ease or e:Irf
eict:l!!lSion hereof shall at Lessor's ootion be ceened a rene'n'al of the Leese on
'a rronth to ll'Onth tern basis, with sald renC'A-al being u.-:de:: ar.d subject: to all
provisionscontai:;ed in this Leese, and shall be at the option of t.':e Lessor.
. Lessee shall be deEm.ld to have held over ur.cer this pa=agreph unless it shall
have notified !.essor in writ.!..ng of its i.'1teotion to sun:ence:: the pranises at
the end of tte tex::n he=eef, or at the end of any subseque.'1:: term, ni::ety (90)
days prior to tl:e expL""ation of the te.'":ll he::ecf, or of ar.y subsequent te..."'nI.
29.. O;:rt:ion'to Purchase:
. '.. Lessee' sliall have t.ie option to purchase all that cer'"...a.i.'1 t.,"'l!.ct of land
. together with ~ts thereon sit'Jate at 4076 Market Street, ~ illll of
\\,'hich the leased pr~es is a part upon the f~llowing tenrs and cocditions;
. . A. . 'rhe option shall be exercised by delivering not.:.ce of exercise
. theieof to Lessor no later than August 1, 1994.
". '.' B'. . The option/sale price shall be the a"o/e..""age of two ~aisals, one
each. to be provided by Certified Camie..."'Cial Ap,;lraisers selec::ed by Lessor and
. Lessee. Provided, however, tI'.at in the event said price dete.'1Ui.nation shall
be less than. $1,400,000.00, I.e!3sor shall have ~e right to ter.uiDate the said
.: 'pur,*.ase ogtioo.. In the event the purchase osr-...:.on is so terminated, the
.' ~ lease t= herei:1 shall re:nain in full force and effecl:.
" . .' .'.
.. ,
. : .' ::':C..sett.lement shall be ccr.pleted within 120 days of notice to exe.."'Cise
. :.the: Qpti.on.i At settlement each part"/ sl:a.ll shi>..re equally i.."l allY real. estate
:. t.~fer, taXes'Md all ::oo.l estate taxes, rem:.'J e.nd prepa.U.:l \ltillties and
,
11
FEB 19 '93 12158 FR"", CAPITAL HEALTH S~'STEII
PAGE.OI6
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maintenance' agreanents sb.a11 be prorated to the date of closing.
. . IN wiINEss l'Il!ERF.'m", the parties bereto have executed the presents the
day and yaM first ab:lva written.
, .'. rt.
WI'INESS: . rzsa:
!I./L . It (!t&~ ~I(,~ C]'
Roger C. P ,ne
WI'!NESs: rzSSEE:
.
. l".arrisburg Medical MaIlegeroe.'1t, roc.
eu) ilia'\~1JMfL{<O By: '~'-'~-11 ~e~~
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** TOTAL PAGE,016 **
P..16
FEB-22-93
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C I R
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1'1011
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ImMl commercial-Industrial realty company
I 'OIS Mt,;V\\,A RC,,\O '/tCJll.,lt.E'rSB'"lao, PENNSYL'/,U.IA 11~3
MAI~"O 'CC~ESS:Po. 50X "'J' C~MP ~I~~, PEM.S'(L'i~';IA 17~HIIO 171" m.IJIO
O.fICE SPACE Foa SAl!
LOCATED I
40.76 Harkee Sereee, Cl~p Hill, PA 17011
HAmpden Township, Cumberland Ceuney
BUILDING DESCRIPTIOl!:
Total sq. to. I
Constructienl
No., at tla'arSl
Elec, capaciey:
Typa HVACI
T;.ope Haarl
lIa 11 $I
Ceiling heighe/typel
Ligheingl
Ele'later:
Roo:,., & sizeSf
Restrae",,,
17,70.0. SF
lIood trame/seeel (oda. blda, oCone) l Hberglu' shingle raat
2-stery; appraK. 1,000. SF basu~ent under ariginol bide, ONLY
120.0. ~IPI 3 phose
Gas-tarced hoc air; electric ^ir conditioning
Wood tloorine with corpee
DrYl/a 11
8 te.l acoustic tile
necessed tluer.seent
ISCo.lJ Otis
CAn be subdivided to. 36e SFI sea plan an back
Orig, bldg. 1 per t1 in-eolllJ:lonl no... blde, 2 per t1 in-ca....an
GENERAL IIIFOIIHATlo.N
Pnca
Financing:
Tranater ta)(eSI
Real eseAee eAxes:
Expense~1
Possession,
ZONING:
$1,980,00.0
Owner will consider secandary tar qUAlified buyer
Divided equally betlleen buyer and aeller
projected co be $12,0.0.0
Projacted, Insuranco $4,0.0.0., La"'n Caro/Sna... Remaval $1,5o.o.{ MY...C
(common areal $7,00.0, Electric (cemman aroa) $60.0., TOTAL $ 3,10.0..
At ::et-.~lernan~
Apartmene-Cttice Limited' permits mediCAl, business & peot-
euiand otfices, educat!onallinstruetion, pUblic & private
schoels, ossaeiAeion otti~es
24,046 (May 30., 1991)
1,1 scre~1 185' X 250' ir~egulArl " por~ing spaces
PUblic seWerl public wecerl pUblic gos Co the building
HiBhly visiblo and eA~ily accessible from all mAJar foad-
way" Shoppina ~nd reSCAUfants ore nearby, "ev canstruction
tudor-styl. ArehltetCUre,
FOR FURTH!R I~FO~~ATION,
PLEASE CONTACT.
I'..-i R.c A r\J~llc.(fl"''''''''
TRAFFIC COUt-:T.
LOT SIZE.
UTILITIES.
COIiHEtlTS.
!lOCe. o? ",?.;J-9.J
Fil. ~a, OS91-16o.
Inl"..lIeo IO.Cllnln, Iftl' cll"I~1 " '10m IOU/lII ell",e flll.\II, tul ~l >",Inl, II .,e, II I. t~l lCeulIC, UIIt,I, ,r,e
II ,. 'L,J~fl'!I"1d '''bi"l 10 t"Cl., crnlulcr.. C~'fI" 0' "Iu It II"" C 11\11 I I 1""11 "lor lilt IF 1""1 " _Itlld'.lIf.1 MI11I1'"
.IIICO, (ltl,OIIl,' 0)
EXlIIBI'r B S1C."C}tP ~;; n-:.\,oo,n ~~
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WIX, WENGER & WEIDNER
IUOWUlIlW'J(
njOMAS L \VENom
DEAN A. \\1!10Sr:.R
m"\'E..~ c. \\'UDS
nn:R1$A l. SIlADE V,1X'
0.\\10 R. om.
nUIlEX J. OWRAN'IS
OIlWlOf.IUClWlDS
ITE\'ES R. "'1UJAM5
ntOMAS A II\1TlOS
A1TORNUYS AT LAW
~08 NOlml SUCOND sntUUr
rOST OrnCE DOX 1l4~
IWUUSUUltG, rUNNSYL\'ANI^ I7JOS.o.r..tS
%01 rRJNcr sm[rT
IlARRrsnuRo, fA t1Iw)OW
(7IT}6!:-6-4U
n:u:rorlER (liT) '''''~
(71~L"":1l
TU.lroru:.R (lIT) 1\4-(:':4
I'I.L\.'iE RrJ'1.. Y TO
rJU"e< mo:r omCl! ( l
. AJ.o "'C'lIIbrr MwtcbUKtu Bat
February 23, 1993
steve Fishman, CEO
carlisle Productions
1000 Bryn Mawr Road
Carlisle, PA 17013-1588
RE: Roger Petrone, Landlord -
Harrisburg Practice
Management, Inc., Tenant
(Lease)
Dear steve:
As promised, I am writing this letter to confirm the
understandings which were reached at our meeting on February 22, 1993
(with Roger Petrone and Phil Guarneschelli) concerning the following
matters related to the above-referenced lease:
~
1. Snow Removal. While we all hope that the snow this
winter is not establishing a precedent for future years, I believe we
have now reached and agreed upon a snow removal policy (what is
commercially reasonable, given the nature of the Tenant's business),
namely, that the snow will be removed by the landlord's contractors
before the tenant opens for business (8:00 a.m.). Based upon the
phone calls made by Roger, we expect that having the sidewalks cleaned
(which was the major problem) will cost an additional $10.00 per
visit, which Roger indicated he was willing to pay to resolve the
controversy.
Although we have agreed to meet again to discuss other
matters, hereinafter referenced, it is my understanding that the snow
issue has been resolved as outlined above, which is satisfactory to
all parties. . '.
2. Liqhtinq, Phil Guarneschelll and Roger Petrone had
discussions concerning the adequacy of exterior lighting. Some bulbs
were out, and were replaced. A question exists as to whether certain
of the lighting which was originally installed by the landlord was
interfered with or disconnected when the tenant installed some new
exterior lighting on the premises, which it deemed necessary to
protect its employees and patients, Roger agreed to discuss the
situation with his electrician, and if necessary, have his electrician
EXHIBIT C
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WIX, WENGER & WEIDNER
steve Fishman, CEO
page 2
February 23, 1993
inspect the connections, in order to determine the circumstances.
Phil Guarneschelli agreed to have one or more timers, as necessary,
installed on the exterior lights which his electrician connected, so
that the lights would automatically go off at 9:30 a.m. The timers
are an interim solution, and are without prejudice to any claims for
breach of the lease or other damages available to either party.
Phil and I will meet with Roger, after the snow has melted,
after dark, at a mutually convenient time, in order to inspect the
lighting situation from different points in the parking lot to
determine the extent, if any, that additional lights are necessary for
the tenant's evening hours. . ,
3. Parkinq. The tenant understood it was to have the
unrestricted use to 75 parking spaces. The landlord advises that he
only intended the tenant to have the front 55 spaces available. Roger
agreed to review with the adjoining landowner the possibility of
using, on a permanent basis, some of the existing spaces on that
landowner's property. At the same time, he will explore the
possibility of extending the lower level parking onto the adjoining
landowner's property. We targeted a meeting next week to discuss the
results of his efforts, to see if some amicable resolution of this
controversy is possible. In the meantime, Roger agreed that at least
8 of the tenant's personnel could park in the rear parking lot. They
will have access to the stairway and, if he makes available keys to
the elevator, Phil Guarneschelli has committed to return all such keys
to Roger, if the ultimate solution does not involve the tenant
utilizing those rear parking spaces. There' is to be no charge to the
tenant for the temporary use of those spaces.
This interim solution is without prejudice to either party's
rights under the lease and related documents, in the event a
permanent, amicable solution is not reached.
4. Heat. Roger indicated he h~d observed open windows in
the waiting room of the Camp Hill Family'practice at the same time
that the thermostat was set at 800, indicating a possible imbalance in
the HVAC distribution system. Phil agreed to telephone the Jackson
company, which installed the system, to have the system inspected and
balanced. The temperature in the examining room is required, by law,
to be 740. The tenant will caution its employees about the excess
temperature readings and instruct them to work with the heating
contractor to balance the system, rather than adjusting the thermostat
and attempting to balance it themselves by opening the windo\\'s.
Despite the location of the thermostat in a locked closet (which is
locked because of materials stored there), the ~mployees will be
instructed to provide reasonable access to Roger, in the presence of
,
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WIX, WENGER & WEIDNER
steve Fishman, CEO
page 3
February 23, 1993
the tenant's employees, for purposes of inspecting the thermostat
setting.
This letter is not intended to assign blame or
responsibility for asserted violations of the lease by either the
landlord or the tenant, but simply to resolve those issues, where
indicated, or to set forth a course of conduct ultimately designed to
resolve those issues, all in an effort to amicably resolve the
differences.
If your understanding as.to what was agreed is different,
please telephone me.
Sincerely yours,
WIX, WENGER & WEIDNER
By: /1,(,{;, I\..-.
Dean A" Weidner
/lml
CC: Mr. Philip W. Guarneschelli
Christopher P. Markley, Esquire
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EXJI!orr D"
APR' I "9,1 8: 18
, PAG-E, 002
.
.
(C(Q)fP>1f
TilE LAIRD HOUSE
OPFICE I.EASE
4076 M~rkat Stroot
camp !till, Pr.nncylvania, 17101
This Leaoe IlIncle thi!:
.....
d-cl- day of Januo.ry. 199,j, by and between
Roger C, Potrone
3!120 Market St,
Camp Hill, l>ennsylvania 17011
(herein call'!l"Lcssor")
I\ND
Htlrrisburg MedIcal WmQgcmcnt, Inc.
11 pennsylvania Corporation with offices at
157 Paxton Streot
Harrioburg, ponnsylvania 17101
(herein callod "Lessee")
WITNESSF;TH:
In cOll:;;ideration of,and 'Jnder and subject to,
condition, and', consideration herein, rec:ited,
intending to be legallY bounded hereby, agree as
the mutual covenants,
Lessor and Lessee,
follows:
1. Leano:P Premise:=;:
Lossor hereby lata and dr~iGes \;0 LeGSee, who hereby laaaea from
Les!lor that portion of the pr'~miaes situate at 4076 Market Street, Camp
Hill, cumberland County, Ph located on the first floor of the buildinq
containing 1,155 square feet und ia more ful.ly nhown on the sketch plan
attached hereto as Exhibit A heroof. Lossne shall also have the non-
exclunive right to the U!le of all c:onunon aroas including hn11wnys,
walkways and parking orcaa on an "as avail,'ble" basis.
2. Term:
"
~~esGeQ shall hay!! and hold th~ demised premises for an initial term
of . "y'~ars and h~ months, Sa:l.d term conunencinq April 1, 1994 and
e'nding ~. 11, 1998, Provided that Lesnea shllll have the option,
unlann Lennoo shall then be in default hereunder, to extend this lease
for three (3) furthor five (5) year (lxt,ena:lons in accordance with the
terms furthor provided in this 1ensl1. The notice of option to exercise
such elttensi.ons shall be given by Lonnee to :Lesnor no latar than six (6)
months prior to the expiration of the then current lease term. Lesaee
sholl be q i ven occupancy of demin ad premi sas no later than January :ll:6.,JI,
1994 for the uole purpouo of installing Losaeo' s improvomcmts.
J. E~:J~ $1114(' ~(r J-t!.'1V^,\(.g(~T Fe,L Pit: ,t.n:., J.'''(IIM ~"')rt::"'r /fttlh/,t"",.,~ c',I",
. 7 I .
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~.o('(. t-LO'D'n;(." ~lS.t. (.l:?^'-" ,.,I.CU,-1lY ,.....tTu,ut))
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EXIUDI'f E
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P.02
, .
APR, I '801 8118
P~1(i~ , 003
.
'.
3, Base Rnnt.:
Durinq t.ho init.ia1 tenn of this l'lase Lessee shall pay to Lessor,
as base rant. tho followinq vmounts:
I).
Months 1 through ~ inc:lusivo "
Mont.hs ~.w t.h.rough <1il inclusive =
l~
III tho avant r,osooe :;hull extend the le!1sn tarm horoof ill accordance
wit.h t.ho provision:l hor()in contained theref()re tho basil rent during such
poriod of oxtonaion ahull be $1,515.92 per month subject to the
udditionul rant adjustmont.1l herein bfo!low provided in paragraph <1.
$1,443,75 per month
$1.515,92 por month
4, Rent Increas~:
TA,lSOee shall pay to Lonllor mont.hly aE: additional rent durinq any
renewnl term hereunder:
(a) nsurn equal to llG% of the :::-ClIt paid durir.g the final yoar at
the' prior five' (5) year t.oLln. Lessee will automatically pay increases
when due for tho ono (1) . five (5) year extonsion if exorcised. Two (2)
additional five (5) year opt.ionv availuble at 100' CPI over t.ho last year
of the precedin\T five (5) yea!," tenn, lInd
(b) tho Lessco's propOI:'t1onate share of any increases in the
following expenses attl:'ibutab1e to the prenuses a~ 4076 Market Street,
t.o wit": ta:otes,. insurance. utilities a:1d maintenancA. lawn carl!, snow and
trash removal. Lossees proportionate shal:o shall be determined by a
fl:'action in which the 1,155 square feat leaned to Lessee shall be thl!
numerator and the total leaDable space in tho prenUflC!D 14,587 square feet
b,~l..)(l~) shall be the denomlnator. tncre,lsos to the variable items
described above shall be calculated using t.he actual costs incurred
durinq term from August. 1, lSl92 throu'1h JUly 31, 1993 as the base year.
The. initial adjustments will b~_,qalculatecl usinq the actual costs
incurred durinq the periOd from ~~ 1, 1994 th.rouqh F~~ 3', 1995.
Lessor will notify Lesseo of the annulll adjustments on or before
l'I""iMa.1r8h 1, beginning in 1995, in each year d\1rinq I:he term hereof or any
extension thereof to be effact.ivQ March 1 ()f the same yeaI:',
(c) provided, howevoJwJrhat the b!\Oe and additional rent payable 1;rr.1f7
hereunder to be effectivo ~ 1, 1998, shall be no less t.hat $~ '
mont.h plus any additional amount.:! dua in oc(;ordancQ wit.h th'.! provisions
of paragraph 4(b) hereof.
The adjustments horoin described shall cont.inue to apply durinq the
term of any extension hereof,
5. Po~nn"Rlcin:
Lessee' shall be given possession of the demised premiaes upon
commenCemC!llt of thl.! term of thin Leune.
G. P..tilWM.:
LO!lGor will provide and shall pay for hoat, electricit.y, watOl," and
sewer and air conditioninq, The oblignt.ion to provide hoating and air
~
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PI<GE ,.00.1
.<PR
'9.\ S: 19
condi.tioninq shall be limited to no Illara thllt llixt;y (GO) hourll per weele.
Real: shall bo.provided in such manner all to (,rovide a ndnil!lllll\ t!!IIIPcrature
of 72 deqrees. Air condi tioninq shall provide is m.:ud.:nulI1 t()lllpera ture 0:
72 dp.qrees. LGSsee shall be reGpcnsible fo~ jnnitcr~a~ Garvices for tbe
_ l.eased ap,,"ca. Landlord Ghall provide janitClrial s....r.vice to ccmmOll areas
of the prMli1l9s. Providod :;urt.,er the LeSllee shall be re51l0nsible for
electric utility ser/ice attributable to tbo leased premises in excess
of $!iO. 00 in any month and water ar.d seWllr charqe in excess of $25.00 per
quart!!r attributnble to tho l!!ased prlllllisl~s. E.:<cellS utility billi::'O
shall be submitted by LeSflCl." to Lessee which shall be paid by Lessoe
within thirty (30) days or receipt thereof. Watel." pipinq to hI) connectec:
to existinq submeter by Lessee.
7. . z.iaint:~noncn nnd Rp.'Ol1irs:
I'
i
i
t
t'
(a) .The Lessor will maint~i:l. in good ccr.ciiticn nnd repair the
Gt~ctural portions of tho demised pramison, the ~~terior t~ereof, tha
roof, walls, downspouts. q\ltter, :;lipell iUl.d ccncuits ,,_,,<corior to the
buildinq line, parkin<t arcas, sidowal:<s ;~nd curbs adj"cenc to the demise':
!;lroamises and make a.!.llllajor fllcili::.es and equipl1'o<1nt. unlP.llS such ~O!'lairs
or, replacements are necoslJary or desirable' dUll to the nc<;1igence 0:
Lessoe, LasSoe 's subleslJOIHl. c::-ccessionairos. bus innss invicees,
licp.nsees., aqents, s".rtants or C!:Olo)'QQs.
. .
(b) . Lascee, nt its own c:st and ~~rmse, will keep in qoc.:
condition and repnir the interior Ot t.I1e demised premises, damage by
fire, el!!!llants and reasonable wear <.cd toar o:<cepted. At t.'Ul 9x;>ir;:lt:.or..
or terrninatio~ of t:.his Lease, LaSSllC shall deliver up the deJllised
premisar" and at the time of :luch celivcI"".I, tho int:l1-rior of tho demisas
premisas shall 1:>0 L"l qood ccnditicn and ret'nir, ordinary wear and tea!;
e.,<cepted.
(c) Lessee shaH not: porfor::l any acts or car!;'Y on any practice:;
which may injure the demilled premisl~s 01: bo a nuisanco or menace to the
health. or
ntLL"G\PF.'l'RONE.LSE (kesrl/10/9-1l
J
P.04
APR '
'94 8:20
Pt'l(,~ ' 005
, .
'''...--...
oaJ;otz. of othOl" tenants. I.essne shall not burn any c=nr.h or C}.'lrb.:1go in 01:'.
about t.'10 demised premises. Looocc shall not keep or diGplay any merchandiso
or other items on or othl!t"llliGO obstruct tho cCHlron arcas of the entiro
project. Tho olUl1'bing faciliti.es shall nor.. be used foe any purpose other thall
th.."\t for which" they wore conntt'\.ctt.'<.i and no foreign !lubotanco ,of any kind
shall be thrO''''" therein, Noithor Wouec, or its agents or employees shall in
any wuy deface any ~Ialls, ceillr.gs, pnrtit.ions, floors, wood, stone, lOOtal
'NOd: or any p..~rt of the demised pre:ni.m-m,
(d) Tho CO!,;t of any chiiTlgen, iJllprov,,,,nenl:s, all:et'<Ic:.ons or like Jl'iltter,
within. the demised premisO'J required to bo~ !lL.id.) by any CjOver11lMnt or
governmental agenC'J or inotnuncnt.:llity, indud.~g any authoril.y or cOl1lnission,
by :reason of !.essee' 0 specuic type of uoe nnd/or occupation of the demised
prc:niscs shall be paid for by LoSSt)O at its own cost and el<pcnse. Should
I.esoee fail to pay any such CO(;t, L<~Gsor zlay p<!lY the same, and the ilIlOunts
thus p;>..id shall be payable by IJ~ssee an acditional rent:. Any changes,
iI11!?rOllener.t, alterations or llY.e 1I1,l:ter I',il;hin t:he demised prcmises, requi:red
to be rrode by any government Ot' governroont,ll a(i'~ncy or .:.nstru;r,enWity,
including any authorit:y or ccrnni.ssil~n not: occ.l!lioned by Lessee's specific type
I'lf usa and/or occupation of t!:f.l dtmisl..-d prl~niSl!S shall ~ p:lid for by Leesor,
Lessor ilgrees he will be responsible for cOllpLLance with tha requirCll1Cnts
rega.."Ciing handicapped access tel all corrroon ar~lo in;x>sed under stata or
federal regulations which are not r;pecificuly required a!I tho result of
!.C$scc's occupmcy of the premises.
(e) Lessee shall at. Lessee's sole c:'(pcnso, and ill accol'Canca with all
U'fl?licable state, fedort1l, m1d local rcgulatiollfJ, prCll1ptly rem::lVe llnd diGp:)So
of aU medical and Co'lVirol1l1lHnullly hazu..rCous ""lSto frcm the leased premises.
!.C$scc hereby agrees to ind~fy and suve harr,lless LoSEor ft'QlI MY loss or
liability arising from tho use, stor<1t3e, or dinposul of ouch Incdical and/or
envirornuentally hazardous 'toWJco"
a. Ccm::)lianc:e with !om:
, Lessee. agrees to o;,..;crve ar.d compLy with .:Ill stilt;Uteo, otdinances,
rules, orders, regulations, requin:nunt:J ,'\lIt! lclWl) now in effect or whiC11100y
be enacted during continuance of this r,.e.:lSO or any rene-....al hereof by any
municipal, count'l, state or federal authority (lr other public bcxly or agency
having juriodiction ovet" the demised pre-nines or over Any business Lessee
conducts upon the deniuod preni.m'll, auld LomJco shall inc!cmnif".1 and nave
haJ:llllcss Lessor from non-con'fllJ.iu\cO with tllo Gnno. Further, I.essee shall
neither conduct nor muse nor permit to be conducted o1ny nu.i$,SIlco in, llpon, or
about the. demised prenLoJ'~s.
9. Im.e of .Pt'enifl..ftt1,:
Lessee' nhall usa the tlL:Ili.!!cd pt"ellises for medical office use and for DO
other pUrposo, The premises flhall be t\Sl'<.i and oct:upied ill a safe, cureful and
proper mmner; and no nulr.lillCo, trade or occup.:ltion which is known ill tho
4
API?
19., 8: 2(1
P.~I;E , 006
insurMCO .tr.:ldC 35 C'.'ttrLI or especia.tly ha7.,.rdolls shall be peL'mitted therein.
Lessee shall not conduct any activity which either shall made void or voidable
any insurancc on tho demised pL"cmisos. !n the event that any of Lc$soe's
activities shull cause an incrElane in Wooer's insurance premiUl1lS, Lessee
shall be responnible for: and shall pay as 3Cdil:ionnl ::ent the,allount of such
incrBaao i:l praniwn attributable solely to Le!ille<J'S activities.
10. . Alteration - TJ.ann:
The initial n.lt:erations and i.-r;>::ovClmnts to the demised premises shall
be constructed at Lo::alW'S cost:. Lessee shall g1vo to Lessor the right of
first refusal to pravide labor and ;:'''ltorials fllr a mutually lIgt'ocablo scope of
work desired by Lessee upon tho oamc ';e....s and conditions as any b:ma fido
offer by any. third p."ltty conLrM:tor. which LcSS1!C shall desire to accept.
Lessor shall hnve sevent:y-two (72) hours after presentation of such offer to
accept or reject such right of fin:\; rcfuoul. Ussee >Jhall ml1ko no
alterations in 0::' aclditiol1.'J or .iltprovc:nents to the dunisod premises without
. tho prior writtC.'l consent of the Lem:or, ;til Huch a1 te::ations or inprOllenents
made by LeSSE!(! (e;{cept !lOvable office furniturl! ill1d profession fixtures) shall
at the option of t..he Lessor, bE.ocome the pr"I:JPeI:1;y of Lessor ilt the termination
or tho Lc..'lSO. Should Lessor notify' Lessee L, ~It'itir.q sj.xt:y (60) days prior to
tbe e.'<piration of tbe initial tor-n or any extension hereof th.Jt Lessor does
not des.lxe'DIr'J or all alterations or i.1;lro'lcments iJ'l.stallcd by Lessee, Lessee
will renew such alterations 0:' .illprovc:nents not desired by Ii.ssor and repair
any damage.caused by ouch rerrovat. In the event Lessor fails to give the
aforesaid notice to rerrove said .!Jlprovancnts at: least s1:<l:y (60) days prior to
the exnL"ation of tho tOtm, thc:n Lessee Shilll /lot:. be responsible for t.'le
rerovai of oald imorovr.:ncm:s or the e.'<OOIl!lI! thurcof. If Lessor CQ110lies with
the ofor~d notice requireror.to, Leoseo shall also repair any daroit~ caused
to the d(."UiJJed Pt'cmi.scs by the inst:il..lliltion or r=al of alternations,
additions or i.rmrcvanento by OI' for !..essee, and reS1:ore premises to general
office condit.ion. WJGe<:l sb.:1ll neither do nor pcnnit: nor cauoo to be ColiC any
act or t:hing ''''hich :.;l1all crea::e .lny :nech~lIic's lien or claims for lien against
the demi.sod preni.ses or any part there-:lf. Las/lee, Lessee's succesmors and
assigns, contractors, subcontril.ctors, labct'crs, IlDterial men and all persons
wharoocvcr hereby wll'leS, relea..,oo, disclaims <lny and all claim'> and/or for
tho 'furnishings or doing of any :ro.ttC!r Ot' thi.n9 PCJ:mitted or required by any
law, ordinance or regulilt10n (r.ow or hereafter in force) or by tho teIlllS of '
this T..euse or otherwiso (done w:i.I:h or: without the known or consent of the
LesSor) . Lcsseo hereby agrew.J to indc:mw.l and save hannless Lessor against
any and all such liens .1nd claims and all GOOt.!I, cxpenllflG, and attorney's faes
in connection there-..ith. If .lny ouch liens Rhlul attach, Lessee, upon
roouest, .imnc:diately shall <Jive ouch security "Ill shall bt! rcw,olli:lble
sat1sfactol:Y to I.cssor in OrCI.lr to hold T..er:rJClt' sllfo and hllonlcss aguinst any
such claim or lien ar.d all c!.~n:tc;t:s, costs, at:tt.rncy's fees and !!llpeJl$es, to
include any judgnent or dccrw '''hich might be rendered against Lessor, the
dt.."llisod pranisos or LeSflor'o i:Jtcrcst in I:he dcrnisP.d praniscs on account of
such lien or claim.
OJ
APR- 1-"'4 FP r
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APR
f9~ 8:ZI
.
PA,.E.007
Final agreerent bet=^,een V.e patti!'!:3 regarding the SC0p3 of '~rk
wlll.ch !MY be d6ne by Le!;oor M :urt.ier cescrib:d above Ghall cons1:itute 1I
condition precedent to this lease beir:g bindin9 upon the parties hereto, In
the event the partif'.$ ohal! fail to a~rove such fiCOJ?e of work and
carpcnsation therefor within 15 days of executlon herc'Of, this agt"eement shall
be deemed null and void and neithor party shall have any further oblig<ltion to
the other hereunder.
11. Sublett\Ug:
Lessee shall not assign, ur:derlet:, subleT.: or :tortc;;age the dEmiood
premioes or any part thereof or pctmit eIlY par:'l, person/ firm or corporat:ion
to occupy tbe demiJ:;ed premises or any po"Y'1: the::eof wit.hout' the prior 'h'l:itten
cOlWent of Lesoor, which consent shall not be llnrcasonublv withheld.
Provided, however, that Lessee shall have the :::ight to uublease to any CY.S
affiliate.
12. Subordina.t:J.Qn:
Losl3ee agrees, that i:1 the event the noct.gagl.'O unde~ any IlOttgagr.J which
LessOr has. or. m:lY give against. the demised premises shall so requirc, \:0
subordinate the lien and priority of this Lea$.! in favor of such I1'Ortgagc and
to C'Xecuto any :.nstruments which Lessor or such I1X)rtgagl.'O Il\:IY c!ean necesoary
and/or appropriate' to acccmplish that er.d. Pt'l)vidod that any such
sub:>rdination shall include a non-<liotuID:mCC provision re<prding Lessee's
interest in the .premiGeG in fOI::n acccptuble to Lessee, which acceptance shall
not unrcasonablybc withheld.
. .
13. ~oa.i.rs:
. Lessor, or Lessor's representatives, '.dth prior written notice to Lessee
!MY enter ut;on and inspect that demised premis'a5 and evm:y ~ the::eof or
perfolltlroutine maintenance thllreto during oonoal buSinesfi hours. Lessor
shall also have authority to enter UflOn thQ dc:nised premioC9 at any time for
the purpose of ,effecting rnlCrgcncy re;:airs.
l4, ~,and RCQUlationfl:
. In aOiition to the sevemJ. covenants l.'On1:ained in thiu Lease, it i1J
spccllically. i1grced that tctJoor ooy frcm t.ime to t.illlO csU1blish reasonable
n1les and reguliltioo.'l appertaining to the demilled premises and Lessee agrees
to be round by same. Any such rules and rcgull1tions shall be consistent with
the terms of this Lear.c and Ghnll deal only wi1;.h tho operation of tho building
in which' the, demised premicus _LrC 10Cllted.
15. !;\3m"loe; Destruction arld r.millranc.!J:
. (a) If the demised premises shall be pal:tially dam:1ged by firer stem
or other cam1.'llty, so as 1:0 render sumo partially untenantable, then Lessor
6
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shall f'L'....,l-'l.ly proceed to make repalrn w:u.c:h Shllll 00 canpletecl within ninety
(90) Cays. During the interim Le!3!3etJ'.J reut shall 00 ubuted prop:>rtionatoly
ao to tho portion, or O.."tont of tho d~sed pruninlls renc..lered um:enantable.
In the event repuirs cannot be cO:l1!?lot:.ed '..,ith.i.n ninoty (90) days Lesnee JraY at
its cotion, terminate thin 1=0 witho'lt pcnalt,y therefor b:f providing written
notice to IA3990r of Lessee's desire to terminate. Such notice must be given
by. Lessee no later than five (5) Cays a(~er not,ico by Lessor of his inability
to llI'lke,the necessary repairs withi.'1 t.....c n:.ncty (90) clay limiUition.
. ,
(b) :If demised prroU.oetJ sl:all D;) $0 c!.Jm:'ged by firc, storm or ot.lJer
caoualty so as 'to rondor sume ,,'holly 1l..temlIlta.ble, then Lenoor' shall bave the
option upon written notice fifteen (15) ~\ys f:'Crn Cate of fJaid casualty to
rr:build or not r'ebuild tho demised oremLser.. 1'n the evrmt Lessor detCJ:mi.nos
to rebuild tesoor ohall prOlTpt:ly pCOce.:d tel rel:RJ.!.ld or rcp.:U.r the danised
premises which rebuilding or repairing shall be. canplllt:ed within one hundred
twenty (120) days from the date of the f.\.re or other casualty. During the
interim Lessee's rent shall be ab3.ted. Pt'OVidcd further that in the event
Lessor shall determine not to rebuild -:11,;: prenises this loose shall tetTUinatc
effective with the date of the fu:e or omer CE:SUalty.
(C) Lessor shall insure the deni.sed premises ag!linst physical clarrage by
renson ot fire, storm or other ca.sualtj', b1clucling e.'ttendcd coverage. said
cOverage shall be to the !-ull value of t..lJc dcmi.srxl prenises, incll.:ding the
initial iJnprovenentn and alternations re.teI:red to in pll'agruph 10 above.
(d) Lessee shall insure the demisl'!d pn~lli.fJes against gl!neral public
liability with coverage for bodily injur.l at le>J.St three hundred thout;and
($300,000.00) collarg per individu,1.t aJ,d one mi.llion (Sl,OOO,OOO.OO) D:lllars
per i.Dcident and for property dam:lge a': teas:: t.wenty-fivc thousand
($25,000.00) collars. Each party ohall namo the other llD addi.tional insured
on <my such policies and shall !ur.Ush unrlllal cert-ific.lte!) of insurance to tho
Other if reques::ed.
(0) LeiJsor !3hall insure the COllllon I:lt'cas (of the building in which the
demised premises are located, as well as the l!lI.terior sidewalks, driveways,
parking aroos and the like, agailll.lt general public liability).
16. p'irectorv and~icna=:
Leslior',will nuko (;pace Qvn.i.lo3blt:! 011 t.ho interior buildIJ:g directory and
CXterior signago established for the d.::m.i.sc:! prenlJ,t:!13 for Lessee to indiC<lte
its CX:C\lpancy of the demised premises. 'rIlEl inl.tial signagA shall be IlB
followo I. Interior directory - 3 lines, I::xt:erior signage - ~squaro feet to
be designed and UfPJ;OVT;rl by ll1utual ilgJ;I~llOnt of the purtie!3(h~reto.. l."
17. I#rt;e pavment: .3X!;(lS'5F)!: ~
, '!
. . In the:evcnt any renUil payment :to I'C1Ccivrxl by U10!lOr lrore than thirty
(30). days after tho due date thereof, T.esst':e oh~ll p:ly to Lco!lor a late'
payment
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APR '1 . 9,\ 8.23
PAGE~ 009
clu1rqa in un amOunt equal to fivo (5) ocr cent of the nnnth11' L'cntal pIlYJOOnt
due to- cQT9Bnna~e Lessor for the costs- of rent collection thereof.
18. Default - Distraint:
In case of the non-payment or rent hereiJ\ reser\ll)C.\ wit.i1n thirty (30)
days fran the tiJro or times mentioned for paymmt of same, or in caso the
demised premises be vacated or be deserted by T..essee, wooor, in DIlY case may
enter tl\e Dame by it,oelf, or Lessor' fl iluthoriz,ld ngent, by legal. process
therefor, and thereupon noy distrain for ull r'!Ilt:. due for tho rClOWer of t.'10
term, relet the oaid preni.<;Es l:or any uncxpir~'(l !=Ortion of the totln, receive
rent therefor. Lessee shall L-e liable for such distresEl for said rent and
costs, together with =casonablc attorneY'D fee,), and Lessee herp.by waives the
ben'cfit of all laws, /Mde, or to be l1\3do, cxeSlpting pr.operty fran levy and
sale, either on such distress, or any judgment: obtained for rent, or for
dal1\3ges recovored for any breach of this contrllct on tho part of Lessee.
19., Default - Genet.:"dl:
(Il) In the evont of any of ~he follO'....illq occurrences of "onforeroble
default", Lessor shall be entitled to purs'Je one or more of tho remedies set
forth in paragraph lBll hereof:
(1) Non payment of rent for a period of thirty (30) days
follCMing the. due date. ProvidfJd that tcS$01." IlblIll havo first delivered to
Lessee a written notice of such con-payment at least 20 Cayo before such non--
pa}'lrellt. .
. . (2) Breach of any of the other covenants of this Lease or failure
to ccinply with orry rules or regulations properly prCll'Olllgated thereunder,
provided that Lessors shall hir..e given Lesaee written notice of such breach
and a period of t!1h'ty (30) dnj'S within which to cure Sture.
(3) The filing of 11 petition in lxmkruptcy, whether voluntaty or
involuntary, against Le.<;see or !.e'JSOO'S odjudic:ation as bankrupt. or insolvent
in any court.
(") The n!?POintment of 11 receiver or trUstee in bi:1nkruptcy for
~ssee.
(5) The m~kin9 of any o.ssignll);'.nt by Lessee for the benefit of
creditors.
(b) Lessor's rWlCdieu in the event I,f all "enforcOo.'lblo default" shall be
as follows:
., . " (1), t..cusee hereby Cltp:J'.rerS any prothonotll'ry of Attorney of a:rrJ
Court of RecOrd to appear for Lessee in arrj and all actions which lliIY be
brought to recolmr the rent due for the reMinder of the term; and/or to sign
n
P.O,;!
APR
'9.1 8.23
PAGE.OIO
, .
for Leasee an agreement for entering in any ca~tent court an Amiccl:>le Action
or Actions for the recovery of such rent, and in said suits or in said
Amicable Action or Actions to Confess Judgment agalnst Lessee Lor the rent
due, and for the rent for tho r~der of the term, and for interest and
cocta, together with ree!lonablo attorney's fee,~; and Lessee hereby e:~pressly
waives and,releaseo all errors and defects in entering such judgn~t and
further waives and releases all relief from any and all iippraisenent, stay or
cxenption l~, 00;1 in force 01: hereafter to be p<'lSsed, and also waives the
right of inquisit:.on on any r~ll e$tate that mly be levied upon to collect
such rental.
(2) Any Attorney of iilly Court of Hecord of the County of
Cun'bcrland nny, at the requt!ot of LQsGor, .:md, as the d(lent or the attorney of
Ulssee, sign an agreement for entry in a compet:ent court an 1\m.icable Action of
Ejectment and confess judgnent in ojectment th'~reon for the said premises to
any term, past or present, ag;J.inst: lossee, and all persons claiming under
Lessee, without stay of c:~ecution, Ot' a~!ll, ;ll'.d, for 00 doing, this shall be
Q sufficient '=nnt; and thort.'Uo:m, a Writ:. of Poooe!3sion or such other writ
as nay then be apprQ9r:.ate :ray i.iimf:diately issuo on said judgment all errors
and de:focts in enter.ir.g such ac:tion and jUdgnellt, or in the issuing of suc..i
writ, or.in any proceec!ingo thereon, or conceming the same, being hereby
o.'q?rossly waiVtXi by Lessee, and by any ];Xlrson or persoM whatsoever clalming
through, by or under Lessee, and 11 copy oJ; thi:3 Lease, with any ll'l:XilficatioDS
thoreof, l:eing filed in the said Action, it Shllll not be necessary to file the
originalns a Warrant of Attorney, any law or llule of Court to the contrary
nO\:"lIi thstanclli1.g- .
.: (3), At the option of Lessor, this Lease shall determine and
becc:me null and'void, and Lessor may re-enter upon, and repossess, the herein
demised.pr~ses.
(C) The exercise of ilny reoedy or remed:l.es provided herein, by !.essor,
shall not preclude I.essor's exercising, concurrently or successively, one or
/lOre other reroedies provided harein, or autbor:l.zed. by law.
20. lIcceot:ance. of. Notice:
Lessee hereby accepts notice to quit, ralDVe fran, and Slln'ender upon
POssession of, the said daniscd premises to Lc:lsor, Lessor's heirs, executor,
adninistrntor, succenoors and/or a.'1oiglls at the! expi:t'ation of the term hereof.
21. . f:,ondannntion:
In the' event any portion of tho oroo<~ in which tho dellilled premises
ill uituato'shall, during tho tenn hereOf," be tuken for any public or quasi-
public use under any statute or by right of eminent domain, or by private
purch,'UJe in lieu thereof by a p.'lrt<f empow=cd I{ith eminent dQnaln to an extent
that substantially irrp11i.rs the usefulness of the demir.ecl premises for the
purpoFles !or which the !;um.l <Ire hereby leased, thell oither part.1' shall have
9
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. PRGE, 0 I I
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the opHon to terminate this Lease ao of the thte when Lessee is required to
yield possession. .f thin LP~o or any ren~Mal hereof io tor.minated because
of condemnation, and Le!3sc..'O, /J!l a consequence 1;hereof, is required to relroVe
its property fran the demised premi.sCll, Lessee shall have the right to seek
roilrbursm1ent frcm the condemning party ::or th,~ cost of such removal. !.ess'ee
hereby anoigno to Lessor all other ri<;ht, titll3 and interest in any clZlim it
now hao or will in the future havo against the Comronv.'Ctllth of Pel1IlSYlvania,
the united S\:.attul of America, any municipal sulxliviDion, gove.rnmenWl body
and/or any othe= putty enp:>wf)red with ar.inent dcmain or the right of private
purchase in lieu thereof, and llL'ising out of any past, present:. or future
c:<ercise of the 'fOWf)r.' of eminent c!C1Min (or pr.ivatc purchase in lieu thereof)
to condemn, take or injure all or any portion of the drolised prel1lisCll or any
im:)L'(~vcment thereon.
. ,
22. Notice:
Whcrtc..'VC::' notice shall be oivon under thin il.grecment, it shall be deened.
to 00 cattJle'ted when naUcd by certified :ro'lil, postage prepaid to the other at
the addresG herein al:ove set forth or at such other address of which each
party 11'a.y hereinafter notL"'Y tho other in wr:it.'..ng.
, .
23. Headinas:
,Any hetldings preceding tho text of the Sl:voral paragraphs and
sutparagrapbs' hereof arc inserted solely for the convenience of reference and
shall not constitute a part of this leane not !lhall thEl',{ affect itn meaning,
construction or effect:..
24. MOdific~tion:
This I.c.:1se ooy not !:xl rrodified, dischar~~ or tern1i..na.ted orally or in
any other rnmner than by writte.n agrec:ncnt signed by both parties hel:eto or
their respective oucccssors and asoigns.
, .
25. Waiver 'of DefallJ,t!l:
(a) No delay or emission by either p:lrtJ, hereto to exel:'cisc any right
or power accruing UFOO non-carpllance or default by either party with respect
to any of: the timns, covenants, or provisions hereof shall impair any such
right or power or be construed to be a w-diver thereof. Every ouch right and
power m:lY be p.xercised at <lny t.lme during the c:ontinuanco of such default. A
waiver by either of the parties hereto of (lny tlf the covcnant.'l and agreements
to be pcrfoDned. by tho other ohall not b~ conot:rucd to be a waiver of arty
succeeding brench thereof or of the breach of any other covclU1llts or agreement
herein cont:aiJ1ed.
(b) Lessee shall !lot treat UII'f fallllL'e by Lessor to pet"form any dul.;y or
oblig<3.tion under this Lense as a breach of the Leana nor take any action
thereon unlCO!l Lessor fail!; to cu.re such dnfilult within a period of thirty
(30) clays after recoipt of '....dttoIl not:.ice j;ran LesSet;l setting forth llIJi.d
10
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AP~
" 94 8' 25
PAGE.OI2
,--
alleged failure. P::ovi.ded, hO\~ever, that nhould thoro be Q fallure to supply
heat, air conditioning, electricity ar.d/or water and sewer through no fault of
Lessor, such failure shall not constit.ute 11 breach of this Lense nor give rise
to any rights in !.essee, >'I'ovided further that in tho event I..esoor shall fall
to p:ly taxes, i.n!3urance or utilities .:.n Q tiJnely manner, Lessee shall have the
right to make such p.:tyments on behalf of. LessOl:' in which event Lesoee nuy use
such payments as offsets to Lessee's rent obligations hereunder.
.26.' ; pennsylvunia Lw:
. This"I;ease shall be corwt:n:ed according to, be fiubject to, and be
governcd'by the l/IWS of Pcnnsy.lwnia.
. . 27. J;:ntiro' Ag;:~ll<:
This . instrument contains the entiro agrol.'l1lCnt between the parties hereto
. and: shall'lxLbinding upon the parties hereto, their heirs, successors and
assigns .
28. : Renew.ll:
. . A. holding over by the Lessee beyor.d the tCIm of th1.s Lease or any
. . exteMion hereof ohall at Lessor's cotlen be deemed a renewal of the Lease on
a IlOrith to J1l:)nth term b:1sis, '..d.th sald ~'enewal being under and subject to all
provisions' contained in this Lealle, ar.d shall be at the opticn of the Lessor.
Le~iseo shall be deaned to have held over under this p.;"\ragraph unless it sball
have notified Lessor in writing of its intention to surrender the premises at
the end.of the term hereof, or at the end 0:1; any subsequent teall, ninety (90)
days prior to the expiration of tbe term hereo:E, or of any subsequent term.
29.' Ootion,.to . Purchase:
. . Lessee shall, have the option to purchase all that certain tract of land
together with .i.nprovenents th91:eon situato at 4076 Market Street, CaItp Hill of
. which the ll!ilSed prem.iDes io a part: u!.=on the f.,llawing terros and conditions:
. . ::. A. .Th.e option shall be exercised by del:lvering notice of exercise
thereof to ~sor no later than Jluguot 1, 1994.
B. TIle option/nale price shall be the average of two appraisalll, ono
each to be prOVided by ccrt:i:filld COllocrcial Appraisers selected by Lessor llI1d
Le3!lC<l. Pravidcd, hO'lleVCr, th.:.t in the event :;aid prico determination shall
be If>-sG than $1,400,000.00, Lessor shall have ':he right to terminate the said
purchaSe option..' In the event the purchBlJC O!?':ion is so terminated, the
renai.ning leane terl1\!J herein shall reroin in f11ll force and effect:.
. c; Sct:tl=t shall be (:ropleted wit.hin 120 days of notice to exercise
tho ,option. At. settlement each party ohall shnre equally in any real estate
transfer taxes and all reu.l estate ta.,,<cs, rent:l and prepaid utilities and
11
- - .~.
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VERIFICATION
ecretary
I, Christopher P. Markley, Esquire, Secretary of Harrisburg
Medical Management, Inc., have read the foregoing complaint and
hereby affirm and verify that it is true and correct to the best
of my personal knowledge, information and belief. I verifY that
all of the statements made in the foregoing Complaint are true
and correct and that false statements made therein may subject me
to the penalties of 18 Pa. C.S.A. section 4904, relating to
unsworn falsification to authorities.
HARRISBURG MEDICAL MANAGEMENT, INC.
Date: Op;\.~~ -/, 19 q <'
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SHERIFF'S RETURN
CASE NO: 1995-01851 P ~
COMMONWEALTH OF PENNSYLVANIA.
COUNTY OF CUMBERLAND
HARIlISBURG MEDICAL ~IA1IAGE~IENT._
VS,
PETRONE ROGER C
WESLEY COOK , ShDrl!f Or De>puty Sheriff of
CUMBERLAND County, PUlllwylv<lniil, \lho b,}ing duly G\larn according
to la\l, says, thut hC' serv'Jd the> \lithin ________~:OJ'!fJ'_!\.I!H - EOpITY
upon PETRONE ROGER C
defendant, at 1807.00 !lOURS, on the 24t.h day of ilrril___
19~ at 4076 i1ARKET STREET
CAMP HILL, PA 17011 ,CUMBERLAND
County, Pennsylvania, by handing to ROGER PETRONE
a true and attested copy of the COMPLAINT - EOUITY
and at the same tlme dlrecting Hio attention to the contents thereof.
the
Sheriff's Casto:
Dock!?ting
Service
Affidavit
Surcharge
18.00
7.28
,01J
2.00
So anS\lers: ,.r-:;.// ,//..;:::?'
r ?::f:-.'..,>?or..:<: l~
R. "Ihomao Kl~n~, Sher~ft
$;27,2!jWIX WENGER
104/2511995
by
AND WEIDNER
'~P/if;>>~
[1~P'uy-sherlil
l.
S\lorn and subscribed to before me
a..
this 5 - day of 1114.1
19 (((' _ A, D.
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rrol, onotnr/=r-J"
HARRISBURG MEDICAL MANAGEMENT,:
INC. ,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
DOCKET NO. 95-1851 Equity Term
ROGER C. PETRONE,
Defendant
CIVIL ACTION - EQUITY
PRAECIPE FOR ENTRY OF JUDGMENT BY DEFAULT
To the Prothonotary:
Pursuant to Pa.R.C.P. RUle 1511, please enter a judgment by
default in an equity action in favor of Plaintiff, Harrisburg
Medical Management, Inc., and against Defendant, Roger C. Petrone.
The Defendant has failed to plead to the Complaint, which was filed
on April 11, 1995, and contained a Notice to Defend the action
within 20 days from the date of service thereof. Defendant was
served with the Complaint on April 24, 1995, and his answer was due
to be filed on May 15, 1995.
Respectfully Submitted,
WIX, WENGER & WEIDNER
( .' Q / -to'
By:"::$;C&>l\.~(l_\ -~l {<....7-C02 ----
Dean A. Weidner I.D.#06363
Thomas A. Hutton I.D.#65853
508 North Second Street
Post Office BoX 845
Harrisburg, PA 17108-0845
(717) 234-4182
Date: May 17, 1995
,
HARRISBURG MEDICAL MANAGEMENT,: IN THE COURT OF COMMON PLEAS
INC., CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
DOCKET NO. 95-1851 Equity Term
ROGER C. PETRONE,
Defendant
CIVIL ACTION - EQUITY
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Praecipe for Entry of
Judgment by Default was sent by first class, postage prepaid mail
this day to the following:
Roger C. Petrone
4076 Market Street
Camp Hill, PA 17011
Respectfully Submitted,
WIX, WENGER & WEIDNER
By :~f}.ba-(Jo~
Dean A. Weidner I.D.#06363
Thomas A. Hutton I.0.#65853
508 North Second street
Post office Box 845
Harrisburg, PA 17108-0845
(717) 234-4182
Date: May 17, 1995
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HARRISBURG MEDICAL
MANAGEMENT, INC"
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
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Plaintiff
No. 95-1851 Equity Term
v.
ROGER C. PETRONE,
CIVIL ACTION - EQUITY
Defendant
PRAECIPE
TO THE PROTHONOTARY:
Please enter the appearance of Mark D. Bradshaw and Christopher M. Cicconi,
Eckert Seamans Cherin & Mellott, on behalf of the Defendant Roger C, Petrone in the
above-captioned matter.
ECKERT SEAMANS CUERIN & MELWTT
~~~
Mark'D. Bradshaw, Esquire
Supreme Ct, I.D. #21589
Christopher M, Cicconi, Esquire
Supreme Ct. I.D. #19331
One South Market Square Building
213 Market Street
Harrisburg, PA 17101
(717) 237-6000
Attorneys for Defendant
Roger C. Petrone
DATED: ~ f'f, (111
CERTIFICATE OF SERVICE
I, Mark D. Bmdshaw, Esquire, hereby certify thatl am this day serving a
copy of the foregoing document upon the person(s) and in the manner indicated below, which
service satisfies the requirements of the Pcnnsylvania Rules of Civil Procedure, by depositing
a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class
postage prepaid, as follows:
Thomas A, Hutton, Esquire
Wix, Wcnger & Weidner
508 North Second Street
P.O. Box 845
Harrisburg, PA 17108-0845
ECKERT SEAMANS CHERIN & MELLOTI
IA~~-J -
Mark D. Bmdshaw, Esquire
Supreme Ct, I,D, #21589
Christopher M. Cicconi, Esquire
Supreme Ct. I.D. #19331
One South Market Square Building
213 Market Street
Harrisburg, PA 17101
(717) 237-6000
Attorneys for Defendant
Roger C. Petrone
DATED: 5/19/95
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HARRISBURG MEDICAL MANAGEMENT.
INC..
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY. PENNSYLVANIA
Plaintiff
v.
No. 95-1851 Equity Term
ROGER C. PETRONE,
Defendant
Civil Action - Equity
NOTICE TO PLEAD
To: Harrisburg Medical Management. Inc.. Plaintiff
clo Dean A. Weidner. Esquire and Thomas A. Hutton. Esquire
Wix, Wenger & Weidner
508 North Second Street
P.O. Box 845
Harrisburg. PA 17108-0845
You are hereby notified to plead to the within document within twenty (20)
days after service hereof, or a default judgment may be entered against you.
ECKERT SEAMANS CHERIN & MELLOTI
t\~~~~ -
Mark D, Bradshaw. Esquire
Supreme Ct. I.D, #61975
Christopher M. Cicconi, Esquire
Supreme Ct, I.D. #19331
One South Market Square Building
213 Market Street
Harrisburg, PA 17101
(717) 237-6000
Attorneys for Defendant
Roger C, Petrone
DATED:
June 5, 1995
HARRISBURG MEDICAL MANAGEMENT,
INC"
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY,PENNSYLVANlA
plaintiff
No. 95-1851 Equity Term
v.
ROGER C. PETRONE,
Defendant
Civil Action - Equity
DEFENDANT'S ANSWER, NEW MA'ITER AND
~OlINTERCLA1M TO PLAINTIFF'S COMPLAINT
1. Admitted upon information and belief.
2. Admitted.
3. Admitted. By way of further answer, the lease agreement made Exhibit "A"
to plaintifrs Complaint is a fully integrated legal document which speaks for itself, and any
attempt to characterize the content of the same is expressly denied.
4. Admitted. By way of further answer, the lease agreement made Exhibit "A"
to plaintifrs Complaint is a fully integrated legal document which speaks for itself, and any
attempt to characterize the content of the same is expressly denied.
5. Admitted in part and denied in part as stated. It is admitted that a certain real
estate listing information sheet dated February 22, 1993 is attached to plaintifrs Complalnt
as Exhibit "B". It is additionally admitted that the description appearing on Exhibit "B"
includes, iDter alia. reference to 75 parking spaces, It is specifically denied that the real
estate listing addresses, in any manner, the utilization of parking spaces by tenants or
otherwise. To the contrary, Exhibit "B", which is a document which speaks for itself, makes
no such reference and is a document advertising the characteristics of the entire building for
the benefit of prospective purchasers thereof, rather than a document addressing space within
the building available for lease, The remaining averments of 1 S, to the effect that the real
estate listing dated February 22, 1993 "was supplied by Landlord's agent, the realtor" is
denied, Following reasonable investigation, Defendant is without knowledge or Information
sufficient to form a belief as to when or to whom the listing document mayor may not have
been .supplied" to, Additionally, the averments of agency constitute legal conclusions
requiring no responsive pleading.
6, Denied. It is specifically denied that the real estate listing made Exhibit "B"
to Plaintifrs Complaint and dated February 22, 1993. was, or could have been, provided to
HMM by the realtor prior to HMM entering into Lease One on May 20, 1994. The
additional averments of 1 6 relating to HMM's alleged reliance upon the listing is denied
both as an conclusion of law requiring no response and as a matter of fact, as set forth
above.
7. Admitted upon information and belief. By way of further answer, HMM's
practice involves, upon information and belief, two physicians at the present time.
Nevertheless, HMM's "population of patients. is sufficiently broad to have created, at times,
a severe strain upon the available parking at the facility, which strain has negatively impacted
upon Landlord and the other tenants at the property as set forth in greater detail hereinafter.
8. Denied as stated. It is denied that HMM "experienced" an appreciable
shortage of available parking spaces for use by its employees and patients upon relocating its
operations to the Premises. To the contrary, HMM, its employees and patients, caused an
appreciable shortage of available parking spaces, which intermittent shortage has had
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negative effects on the Landlord and other tenants at the Premises as set forth in greater
detail hereinafter.
9. Admitted in part and denied in part as stated. It is admitted that discussions
by and between HMM and Landlord regarding an alleged shortage of available pmking
commenced in early 1993. It is further admitted that a letter bearing the date of February
23, 1993 is attached to Plaintifrs Complaint as Exhibit "C". Plaintifrs purported
incorporation herein by reference of the content of Exhibit "CO is denied, inasmuch as the
correspondence made Exhibit "C" is a document which speaks for itself, and because
Landlord disputes the representations contained in Exhibit "C"; among the representations
contained in Exhibit "C" which Landlord disputes pertaining specifically to the parking issue
are as follows:
(a) It is denied, upon information and belief, that tenant "understood" it
was to have the unrestricted use to 75 parking spaces, By way of further answer, no such
"understanding" was fostered or promoted by Landlord or any of his agents. To the
contrary, HMM was or should have been fully aware that pursuant to Lease One, it was
leasing only 4600 square feet of a building having 14,587 leasable square feet, By way of
further answer, there are a total of 71 parking spaces for all of the Premise's tenants' use.
(b) It is denied that the Landlord "intended" or ever suggested that HMM
would have the exclusive use to even the front 51 parking spaces. To the contrary, HMM
was or should have been fully aware that pursuant to Lease One, it was leasing only 4600
square feet of a building having 14,587 leasable square feet. By way of further answer,
there are 20 additional covered parking places to the rear of the Premises. No
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representations regarding the availabilily of parking prior to, or contemporaneous with, the
execution of Lease One, much less any representations regarding HMM's ability to utilize
these parking spaces were ever made by Landlord prior to or contemporaneous with the
execution of Lease One. By way of further answer, upon information and belief, no
representations were made by any agent of Landlord regarding the availability of parking
prior to, or contemporaneous with, the execution of Lease One, much less any specific
representations regarding the covered parking.
10. Admitted in part and denied in part as stated. It is admitted that HMM
asserted that there was a shortage of parking at the Premises, It is further ad milled that
Landlord in or about February, 1993 explained to representatives of HMM that the 20
covered parking spaces located to the rear of the Premises were being used by other tenants
at the Premises for their exclusive and private use. By way of further answer, Landlord has
~ indicated to ~ representative of HMM that the covered parking spaces were
"available" as common elements for the use of any tenant, Moreover, no representative of
HMM expressed any concern regarding parking to Landlord prior to entering into Lease
One. Following reasonable investigation, il is denied that Landlord specifically advised
HMM that the 20 spaces were "limiled common elements" subject to a Declaration of
Condominium which had been filed in the Cumberland County Recorder of Deeds Office.
By way of further answer, while Landlord has no present recollection of making the specific
representations set forth in the Complaint, it is entirely possible that the Declaration of
Condominium may have been discussed, inasmuch as such documents had been prepared and
were about to be filed in or about February, 1993. By way of further answer, upon
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Information and belief, a draft copy of the Declaration of Condominium was furnished to a
representative of HMM at or about the time the parties executed Lease One. The
Declaration of Condominium was not filed as a result of, Inter alia, HMM's option to
purehase the Premises as set forth in , 29 of Lease One,
II. Admilled upon information and belief. By way of further answer, the
document made Exhibit "0" to Plaintifrs Complaint appears to accurately reflect the parking
at the Premises.
12. Denied. The averments of , 12 are denied In their entirety as follows: No
interim agreement was reached between the Landlord and HMM on or about February 23,
1993. To the contrary, the Landlord did not agree, on or about February 23, 1993, (or at
any other time) to provide HMM with the use of the 20 disputed parking spaces, nor did the
Landlord agree to provide keys to access the nearby door and elevator. By way of further
answer, even the February 23, 1993 correspondence which Plaintiff has made Exhibit "C" to
its Complaint, (and upon which Plaintiff apparently relies in making the averments of' 12)
does not support this claim. To the contrary, that correspondence suggests that Landlord
agreed on or about February 23, 1993 that eight HMM employees could utilize the disputed
parking spaces, which suggestion is also specifically denied. By way of further answer,
while discussion regarding the disputed parking spaces occurred at a meeting between
Landlord and HMM representatives on February 22, 1993, It Is specifically denied that, at
this time or at any point subsequently, Landlord agreed to permit HMM with use of the 20
disputed parking spaces, and/or keys to access the nearby door and elevator. By way of
further answer, a binding agreement resolving the parking issue was entered into by and
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between Landlord and HMM on March 18, 1994. This agreement, a true and correct copy
of which Is attached hereto and made a part hereof as Exhibit" A", reflected HMM's
acknowledgement that the 20 disputed spaces were "private" and provided that two of these
spaces would be provided to HMM at no additional charge. Pursuant to the terms of this
settlement, Landlord provided HMM personnel with keys to the rear door and elevator.
13. Admilled in part and denied in part. As set forth In greater detail In 1 12
above, no such agreement was ever reached. II is admitted that Landlord did not provide
HMM or its employees with access to the disputed parking spaces, door or elevator in or
about February 23, 1993 for the simple reason that he had never agreed to do so.
14. Admitted in part and denied in part as stated. It is admitted that a second
lease by and between Landlord and HMM was entered into on January 29, 1994, and that a
copy of this lease is attached to Plaintifrs Complaint as Exhibit "E". It is additionally
ad milled that Lease Two provides HMM with an additional 1,155 square feet at the
Premises. Following reasonable investigation, Landlord lacks information sufficient to form
a belief as to the truth of the averment relating to HMM's need for increased office space,
and the same is therefore denied.
15. Admilled. By way of further answer, HMM entered into Lease Two with full
knowledge of Landlord's interpretation of this lease provision as excluding HMM and its
personnel from the 20 disputed parking spaces. HMM's actions in entering into Lease Two
without any further discussion or clarification as to the status of the disputed parking area
constituted a ratification of Landlord's understanding regarding the same, such that HMM
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has waived or is now estopped from raising the claims contained in its Complaint in this
matter.
16. Admitted. By way of further answer, and as set forth in greater detail
hereinafter, HMM breached the terms of the lease agreement with Landlord by engaging in
renovation work through an outside contractor, without providing Landlord ("Lessor") with
the opportunity to bid such work, and without obtaining the Landlord's consent as required
by 1 10 of Leases One and Two,
17. Admitted in part and dcnied in part as stated. It is admitted that the Township
initially rejected HMM's building permit application at or near the end of May, 1994. The
remaining avermcnts relating to Landlord's alleged "failure" to provide a requisite number of
parking spaces are denied as legal conclusions requiring no responsive pleading. By way of
furthcr answer, while the building permit application was initially denied on the basis of non-
compliance with Hampdcn Township zoning ordinances relating to parking, this was a result
of the Township's misunderstanding of the prior use of the idcntical space for medical
purposes. By way of further answer, the Landlord promptly remedied this problem, at an
expense of approximately $5,000, and the subject building permit application was then
approved. By way of further answer and as set forth In greater detail hereinafter, HMM's
refusal to rcimburse this $5,000 expense for lOre-striping" the parking area is a violation of 1
8 of Leases One and Two.
18, Denied. The averments of 1 18 are dcnied in their entirety as follows: It is
denied that Landlord "failed" to comply in any respect with the parking requirements of the
Hampden Township zoning ordinance, To the contrary, the lease agreement between the
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parties specifically shifts the burden of compliance with any and all ordinances from the
Landlord to HMM. It is further denied that any action by Landlord "resulted" in HMM's
experiencing a two month delay in its occupancy of the additional premises. To the
contrary, upon information and belief, the delay described was the result of HMM's own
scheduling decisions with regard to the renovation work to the additional premises. By way
of further answer, and as set forth in greater detail hereinafter, HMM breached the terms of
the lease agreement with Landlord by engaging in renovation work through an outside
contractor, without providing Landlord ("Lessor") with the opportunity to bid such work and
without obtaining the Landlord's consent as required by 1 10 of Leases One and Two,
19. Admitted in part and denied in part as stated. It is admitted that the building
permit for the additional premises was issued by the Township to HMM on or about July 29,
1994. It is admitted that the Landlord had agreed to re-stripe the parking area to provide for
more parking spaces, and that the Landlord agreed to construct additional parking spaces. It
is denied, however. that the Landlord had any obligation to resolve the parking issue by and
between HMM and the Township. To the contrary, pursuant to the terms of Leases One and
Two, any and all responsibility for compliance with Township ordinances fell squarely upon
HMM, and not Landlord,
20. Admitted in part and denied in part as stated. It is admitted that Landlord
provided additional parking space through re-striping of the parking lot, and that Landlord
agreed to construct several additional parking spaces. It Is admitted that Landlord continued
to refuse to provide HMM with access to all 20 disputed parking spaces. for the reasons set
forth hereinabove, including. inter alia, HMM's entry into a second lease with Landlord,
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while fu\1y aware that the 20 disputed parking spaces were reserved for the exclusive use of
other tenants at the Premises.
COUNT I - SPECIFIC PERFORMANCE
21. The responsive averments of 11 1-20 are incorporated by reference as though
fu\1y set forth herein.
22. Denied as stated. The averments of 1 22 constitute legal conclusions requiring
no responsive pleading, By way of further answer, however, Landlord believes, and
therefore avers, that Leases One and Two are valid contracts between the parties, for the
breach of which by I1MM Landlord is entitled to damages as set forth more fu\1y in the
counterclaims set forth hereinafter,
23. Denied. The averments of 1 23 constitute legal conclusions requiring no
responsive pleading, By way of further answer, HMM has committed several material
breaches of its Obligations under Lease Agreements One and Two, as set forth more fu\1y
herein,
24. Denied. The averments of 1 24 constitute legai conclusions requiring no
responsive pleading. By way of further answer, while Plaintifrs Complaint seeks access to
"all parking spaces on the property", neither of the lease agreements at issue herein provide
Plaintiff with a right to such access. To the contrary, HMM is entitled only to non-exclusive
use of parking on an "as available" basis pursuant to the terms of Leases One and Two. By
way of further answer, HMM en,ered Into Lease Two with fu\1 knowledge of the Landlord's
position that the 20 covered spaces were "private" and were not "availablr:" to HMM
personnel, and therefore, ratified Landlord's interpretation of the lease provision and has
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waived or is estopped from asserting the instant claims. By way of further answer, HMM
was aiso aware, upon information and belief, when it executed Leases One and Two that
there were other tenants at the premises, which other tenants also required parking for their
own use and that of their clients and other business visitors,
25. Denied. The averments of 1 26 constitute legal conclusions requiring no
responsive pleading. By way of further answer, as set forth hereinabove, the 20 private
parking spaces at issue in this action are utilized by other tenants leasing space at the
Premises. By way of further answer, a certain number of these spaces were al10cated prior
to HMM's entry into Leases One or Two, whereas the Landlord has been obliged to make
others available to certain tenants who have threatened to leave the Premises unless
guaranteed a reserved parking place due to the amount of traffic generated by Plaintiff and its
business visitors. By way of further answer, even if Landlord were to .strip. these other
tenants of their exclusive rights to the reserved parking spaces at issue, such action would not
benefit Plaintiff, inasmuch as this would simply displace the 20 vehicles currently parked
behind the building into the parking areas in the front of the building, By way of further
answer, Landlord has always maintained that HMM has no right to the use of the 20 covered
parking spaces at issue herein, and HMM was ful1y aware of this position at the time it
executed Lease Two. Additionally, Landlord and HMM agreed on March 18, 1994 that
HMM would be allowed to use two of the disputed spaces as a finai settlement of this
dispute. It is further denied, upon information and belief, that HMM has suffered any
damages whatsoever.
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26. Denied, The averments of , 26 constitute legal conclusions requiring no
responsive pleading. By way of further answer, Landlord has always maintained that HMM
has no right to the use of the 20 covered parking spaces at issue herein, and HMM was fully
aware of this position at the time it executed Lease Two, Additionally, Landlord and HMM
agreed on March 18, 1994 that HMM would be allowed to use two of the disputed spaces as
a final settlement of this dispute.
It is further denied, upon information and belief, tha~ HMM has suffered any damages
whatsoever.
27. Denied. The averments of' 27 constitute legal conclusions requhing no
responsive pleading. By way of further answer, HMM is not entitled to the use of the 20
covered parking spaces at issue in this matter for all the reasons set forth herein. It is
further denied, upon information and belief, that HMM has suffered any damages
whatsoever.
28. Denied. The averments of , 28 constitute legal conclusions requiring no
responsive pleading. By way of further answer, HMM Is not entitled to the use of the 20
covered parking spaces at issue in this matter for all the reasons set forth herein.
29. Denied. The averments of' 29 constitute legal conclusions requiring no
responsive pleading. By way of further answer, HMM is not entitled to the use of the 20
covered parking spaces at issue in this matter for all the reasons set forth herein. It is
further denied, upon information and belief, that HMM has suffered any damages
whatsoever.
II
WHEREFORE, Defendant Landlord, Roger C, Petrone, demands judgment in his
favor and against Plaintiff HMM, together with costs of this action and such other and
further relief as this Court deems appropriate.
COUNT II - OUlET ENJOYMENT
30, The responsive averments of 11 1-29 are incorporated by reference as though
fully set forth herein.
31. Denied. The averments of 1 31 constitute legal conclusions requiring no
responsive pleading, By way of further answer, as set forth hereinabove, the 20 private
parking spaces at issue in this action are utilized by other tenants leasing space at the
Premises. By way of further answer, a certain number of these spaces were allocated prior
to HMM's entry into Leases One or Two, whereas the Landlord has been obliged to make
others available to certain tenants who have threatened to leave the Premises unless
guaranteed a reserved parking place due to the amount of traffic generated by Plaintiff and its
business visitors. By way of further answer, even if Landlord were to "strip" these other
tenants of their exclusive rights to the reserved parking spaces at issue, such action would not
benefit Plaintiff, inasmuch as this would simply displace the 20 vehicles currently parked
behind the building into the parking areas in the front of the building.
32. Denied. The averments of 1 32 constitute legal conclusions requiring no
responsive pleading. To the contrary, upon information and belief, HMM has suffered no
damages whatsoever.
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WHEREFORE, Defendant Landlord, Roger C, Petrone, demands judgment in his
favor and against Plaintiff HMM, together with costs of this action and such other and
further relief as this Court deems appropriate.
COUNT III - FRAUD
33. The responsive averments of 11 1-32 are incorporated by reference as though
fully set forth herein.
34. Denied. The averments of 1 34 constitute legal conclusions requiring no
responsive pleading, By way of further answer, Landlord made no representations
whatsoever regarding the availability of parking spaces to HMM or otherwise prior to the
entry of HMM into Lease One, By way of further answer, upon information and belief,
Landlord's agent made no representations other than that the property had a total of seventy-
five parking spaces available for the use of the tenants. By way of further answer, such
representation is true in that, as shown on Exhibit "0" to Plaintifrs Complaint, the property
has 76 "deemed" spaces for purposes of meeting township ordinances, and 71 actual parking
spaces. By way of further answer, HMM never disclosed to Landlord the extent of its need
for parking or its intent to monopolize all available parking, nor did HMM otherwise suggest
that it believed the parking facilities at the Premises would be inadequate for its intended use
of the space,
35. Denied. The averments of 1 35 constitute legal conclusions requiring no
responsive pleading. By way of further answer, given the existence of other tenants at the
Premises, and the fact that these tenants also have clients and business visitors, it is
untenable for HMM to suggest that it would or should have unfettered access to lIll the
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parking spaces on the Premises, To the contrary, HMM leased only 4600 square feet
(pursuant to Lease One) and only 1155 square feet (pursuant to Lease Two) at the Premises,
which has a total leasable square footage of 14,587 feet, Therefore, HMM currently leases
5,755 square feet out of 14,587 square feet available, or less than 40% of the available
square footage. Applying this formula to the available parking space, by way of illustration,
40% of the 71 parking spaces would be 28 spaces. HMM currently has access to the 51
parking spaces available in the front of the Premises. Therefore, by way of illustration,
HMM currently has unfettered access to 100% of the available common area parking per the
Lease Agreements, which available space represents approximately 72% of the total parking
area at the Premises. HMM's position that it is entitled to all 71 spaces is unsupported by
the lease documentation,
36. Denied. The averments of 1 36 constitute legal conclusions requiring no
responsive pleading. By way of further answer, it is denied that the Landlord has reserved
20 spaces "for his own use". To the contrary, these spaces are utilized by other tenants at
the Premises, which tenants would, if not parked to the rear of the Premises, otherwise take
up available space in the parking lots to the front of the Premises. By way of further
answer, while the Landlord may at some time, have made reference to a Declaration of
Condominium, the same was not filed in recognition of tenant's option to purchases set forth
in 1 29 of the lease agreements, By way of further answer, such Declaration had been
prepared for filing and a copy of the same was made available to HMM by the Landlord in
or about February of 1993, after Lease One was executed by the parties.
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37, Denied. The averments of 1 37 constitute legal conclusions requiring no
responsive pleading. It is further denied that the Landlord made any statement to HMM
regarding available parking spaces prior to the entry by the parties into Lease One. To the
contrary, the Landlord made no such representations. Following reasonable investigation,
the remaining averments of 1 37 relating to the "Landlord's statements" relating to the
Declaration of Condominium are denied based upon lack of information sufficient to form a
belief as to the truth thereof. To the contrary, Landlord explained to HMM representatives
that the 20 covered parking spaces to the rear of the premises were private, would remain
private, and were not "available" as common areas subject to use of any building tenant.
38. Denied. The averments of 1 38 constitute legal conclusions requiring no
responsive pleading. It is further denied that the Landlord made any representation regarding
the number of spaces available for HMM's use prior to the entry by the parties into Lease
One, By way of further answer, HMM knew full well of the Landlord's position that the 20
covered parking spaces were private and were not "available" for its use prior to entering
into Lease Two.
39. Denied. The averments of 1 39 constitute legal conclusions requiring no
responsive pleading, It is also denied that HMM "relied" upon Landlord's representations
regarding the Declaration of Condominium in entering into Lease One, inasmuch as no
discussions relating to the Declaration of Condominium occurred prior to the entry by the
parties into Lease One. By way of further answer, it is denied that HMM "relied" on any
presentations by Landlord relating to the Declaration of Condominium in entering into Lease
Two, inasmuch as the Landlord's position (to the effect that the covered parking spaces were
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private and "unavailable" to HMM) was well known to HMM prior to the entry of the
parties into Lease Two. Furthermore, prior to entering into Lease Two, HMM had been
provided by a copy of the Declaration of Condominium, had an ample opportunity to search
the public records with regard to whether or not the same had been filed, and yet demanded
no assurances regarding parking within Lease Two itself, or as a "side" Agreement between
the parties prior to entering into Lease Two, HMM's actions in entering into Lease Two
without any further discussion or clarification as to the status of the disputed parking area
constituted a ratification of Landlord's understanding regarding the same, such that HMM
has waived or is now estopped from raising the claims contained in its Complaint in this
mailer.
40. Denied, The averments of 1 40 constitute legal conclusions requiring no
responsive pleading. It is further denied that the Landlord made any misrepresentations
whatsoever. To the contrary, no discussions whatsoever relating to parking occurred by and
between the parties prior to their entry into Lease One, and HMM fully understand the
Landlord's position with regard to the parking issue prior to its entry into Lease Two.
Furthermore, it is denied that HMM's rights "under Lease One and Lease Two" have been
violated in any manner relating to the parking issue. To the contrary, the Landlord has
complied in every respect with the terms of the lease relating to the availability of parking
for HMM,
41. Denied. The averments of 1 41 constitute legal conclusions requiring no
responsive pleading, It is further denied, upon information and belief, that HMM has
suffered any damages whatsoever,
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42. Denied, The averments of 1 42 constitute legal conclusions requiring no
responsive pleading. It is further denied that the 20 parking spaces have been .unlawfully.
reserved by Landlord for his own uses. To the contrary, the 20 covered parking spaces at
issue have merely been assigned to tenants at the Premises, including two of which that have
been assigned to HMM employees pursuant to the settlement agreement dated March 18,
1994.
WHEREFORE, Defendant Landlord, Roger C. Petrone, demands judgment in his
favor and against Plaintiff HMM, together with costs of this action and such other and
further relief as this Court deems appropriate.
NEW MATTER
43. The responsive averments set forth at '1 1-42 are hereby incorporated by
referenced as though fully set forth herein.
44. Lease One, made Exhibit. A. to Plaintifrs Complaint is a fully integrated
legal document which speaks for itself,
45. HMM made no inquiry of Landlord with regard to any concern relating to the
adequacy of parking at the Premises prior to its entry into Lease One.
46. HMM made no inquiry of Landlord's agent with regard to any concern
relating to the adequacy of parking at the Premises prior to its entry into Lease One.
47. Landlord made no representations relating to the adequacy of parking at the
Premises prior to the parties' entry into Lease One.
48. Landlord's agent made no representations relating to the adequacy of parking
at the Premises prior to the parties' entry into Lease One,
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49. The real estate listing made Exhibit "B" to Plaintifrs Complaint, dated
February 22, 1993 was not provided to HMM by anyone prior to HMM's entry into Lease
One on May 20, 1992,
50. HMM could not have "relied" upon a February, 1993 document in executing a
May, 1992 Lease Agreement.
51. Landlord has never suggested nor represented to HMM or any HMM
representative that the 20 disputed parking spaces were "available" for HMM's use.
52. Lease Two, made Exhibit "E" to Plaintifrs Complaint is a fully integrated
legal document which speaks for itself.
53. The provisions of Lease Two are substantially identiealto the provisions of
Lease One, particularly with regard to the leases' provisions regarding parking.
54, HMM entered into Lease Two with full knowledge of Landlord's interpretation
of the lease provisions regarding parking as excluding HMM and its personnel from the 20
disputed parking spaces,
55. HMM's actions in entering into Lease Two without any further discussion or
clarification as to the status of the disputed parking area constituted a ratification of
Landlord's understanding regarding the same,
56. By entering into Lease Two, HMM has waived or is now estopped from
raising the claims contained in its Complaint in this mailer.
57. Pursuant to Lease Agreements One and Two, HMM is entitled only to non-
exclusive use of common areas, including parking, on an "as available" basis.
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58. Neither Lease One nor Lease Two entitle HMM to unfettered access to all
parking spaces at the Premises, to the exclusion of other tenants' reasonable use of the same.
59. On or about March 18, 1994, Landlord and a representative of HMM entered
into an agreement whereby two of the disputed 20 parking spaces would be made available to
HMM personnel at no charge,
60. Landlord was induced to enter into this agreement as a result of HMM
representative Guamschelli's representation that this would, at last, settle and resolve the
parking issue between the parties. (Exhibit" A" shall hereinafter be referred to as the
"Settlement Agreement").
61. Consistent with the terms of the Settlement Agreement, Landlord tendered rear
door and elevator keys to the Dr. Gallagher, HMM's on-site physician.
62, HMM's claims are barred by the Doctrinc of Laches.
63. HMM's claims are barred by the Doctrine of Estoppel.
64. HMM's claims are barred by the Doctrine of Waiver.
65. HMM's claims are barred by the Doctrine of Unclean Hands.
66. HMM's claims are barred by the Doctrine Caveat Emptor,
67. HMM has, upon information and belief, suffered no cognizable damage as a
result of any action of Landlord.
68. HMM's claims arc barred by its failure to mitigate its damages, if any.
69. Landlord acted reasonably in assigning reserved parking spaces to tenants
other than HMM at the premises,
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70. Landlord is specifically entitled pursuant to 1 14 of Leases One and Two to
"establish reasonable rules and regulations appertaining to the demised premises and HMM
("Lessee") [has agreed] to be bound by the same".
71. HMM has generated an unreasonable volume of traffic at the Premises,
72. HMM's monopolization of the available parking at the Premises has resulted in
complaints to Landlord from other tenants at the Premises,
73. While there is an intermittent parking shortage, upon information and belief,
there is no ongoing, daily shortage of parking at the Premises.
74, None of the disputed parking spaces have been assigned to individuals who are
not tenants at the Premises,
75. Even if Landlord were to "strip" these other tenants of their exclusive rights to
the reserved parking spaces at issue, such action would not benefit Plaintiff, inasmuch as this
would simply displace the 20 vehicles currently parked behind the building into the parking
areas in the front of the building.
COUNTERCLAIM
AND NOW comes DefendanllCounterclaim Plaintiff, Roger C. Petrone, (hereinafter
"Landlord"), by and through his attorneys, Eckert Seamans Cherin & Mellott, and makes the
following Counterclaim against Plaintiff, Harrisburg Medical Management, Inc. (hereinafter
"HMM"), stating in support thereof as follows:
COUNT I - BREACH OF CONTRACT
76. The Responsive and New Matter averments of 11 1.75 are incorporated by
reference as though fully set forth herein.
20
77. Leases One and Two contemplate that alterations and improvement to the
demised Premises may be effectuated by HMM, and if so, shall be constructed at HMM's
cost, ~,Leases One and Two at 1 10,
78. 1 10 of the Leases also states, in pertinent part, that "Lessee shall give to
Lessor the right of first refusal to provide labor and materials for a mutually agreeable scope
of work desired by Lessee upon the same terms and conditions as any bona fide offer by any
third party contract which Lessee shall desire to accept. Lessor shall have seventy-two (72)
hours after presentation of such offer to accept or reject such right of first refusal, Lessee
shall make no alterations in or additions or improvements to the demised Premises without
the prior written consent of the Lessor, "
79. Lessee contracted with a third party builder for the initial build-out of the
space it let pursuant to the terms of Lease One, which alterations had a total contract value,
upon information and belief, of approximately $200,000,00.
80. Lessee never offered Lessor/Landlord the opportunity to exercise his right of
first refusal with respect to this build-out as set forth in 1 10 of Lease One.
81. Upon information and belief, the profit made by Lessee/HMM's contractor
pertaining to this job approximated $40,000.00.
82. Moreover, HMM proceeded to have the subject alterations made to the
Premises without prior written consent of the Lessor, as required by 1 10 of Lease One.
83. Lessee contracted with a third party builder for the second build-out of the
space it let pursuant to the terms of Lease Two, which alterations had a total contract value,
upon information and belief, of approximately $60,000.00.
21
84. Lessee never offered Lessor/Landlord the opportunity to exercise his right of
first refusal as set forth in 1 10 of Lease Two with respect to this build-out.
85. Upon information and belief, the profit made by LesseelHMM's contractor
pertaining to this job approximated $12,000.00.
86. Moreover, LesseelHMM proceeded to have the subject alterations made to the
Premises without prior wrillen consent of the Lessor, as required by 1 10 of Lease Two,
87. Pursuant to the provisions of Leases One and Two, Lessee/HMM voluntarily
undertook full responsibility and liability for compliance with "all statutes, ordinances, rules,
orders, regulations, requirements and laws now in effect or which may be enacted during the
continuance of this lease or any renewal hereof by any municipal, county, state, or federal
authority, or other public body or agency having jurisdiction over the demised Premises or
over any business Lessee conducts upon the demised Premises, and Lessee shall indemnify
and save harmless Lessor from non-compliance with the same." See Leases One and Two, 1
8. (emphasis added).
88. As set forth in HMM's Complaint and Landlord's Answer thereto at 11 16-20,
Landlord incurred some $5,000,00 in expense as a result of an allegation of non-compliance
with Township zoning ordinances due to HMM's application for a building permit \0
renovate the additional premises leased by HMM pursuant to Lease Two.
89. Pursuant to the provisions of Leases One and Two, 18, HMM explicitly
agreed to indemnify and hold harmless Landlord from such expenses.
90. Despite demand, HMM has neglected or refused to reimburse Landlord for the
some $5,000.00 expended by Landlord to re-stripe the parking area.
22
(;xhlhltA
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AGREEMENT
USE of PRIVATE PARKING SPACES
Between
Roger C. Petrone, Owner
4076 Market Street, Camp Hili, PA 17011
and
Family Medicine Center
4076 Market Street, Camp Hili, PA 17011
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Family Medicine Center hereby agrees that they will pay a total of~u per
month for two (2) private parking spaces located at 4076 Market Street, Camp
Hili, PA. The payment shall be due the first day of each month beginning April 1 ,
1994,
Exact location of above spaces will be assigned by bUilding owner,
Either party shall have the right to terminate this agreement with a 30 day written
nolice to the other.
Rage
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VERIFICATION
I do hereby verify that the facts set forth in the foregoing document are true
and correct to the best of my knowledge, information, and belief.
I understand that any false statements herein are made subject to penalties of
18 Pa, C.S. ~4904. relating to unsworn falsification to authorities.
DATED: Co{~/1~
f/o 4~
Roger C, Petrone
. - .
-, ,
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing pleading was
served on the folIowing counsel of record by deposit in the United States mail, first class
postage prepaid, this 5th day of June, 1995.
Dean A. Weidner, Esquire
Thomas A, HUllon, Esquire
Wix, Wenger & Weidner
508 North Second Street
P.O. Box 845
Harrisburg, PA 17108-0845
ECKERT SEAMANS CHERIN & MELLOTI'
;JJ~1?}~
.
Mark D. Bradshaw, Esquire
Supreme Ct. I,D, #61975
Christopher M. Cicconi, Esquire
Supreme CI. I.D. #19331
One South Market Square Building
213 Market Street
Harrisburg, PA 17101
(717) 237-6000
Allomeys for Defendant
Roger C, Petrone
DATED:
June 5, 1995
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HARRISBURG MEDICAL MANAGEMENT, :
INC.,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
DOCKET NO. 95-1851 Equity Term
ROGER C. PETRONE,
Defendant
CIVIL ACTION - EQUITY
ORDER
AND NOW, this
~1---
day of
\\ ')\A-R...
, 1995, upon
consideration of the foregoing Joint stipulation to strike Default
JUdgment submitted by the parties, the Defa~lt~gment
this matter is hereby stricken. . / /"
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entered in
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CU~!:!'/,L\ldl U';!jjr
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JUH 9 10 12 AH '95
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HARRISBURG MEDICAL MANAGEMENT,: IN THE COURT OF COMMON PLEAS
INC., CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
DOCKET NO. 95-1851 Equity Term
ROGER C. PETRONE,
Defendant
CIVIL ACTION - EQUITY
JOINT STIPULATION TO STRIKE DEFAULT JUDGMENT
AND NOW, come the Parties, Harrisburg Medical Management, Inc.
and Roger C. Petrone, by and through their respective counsel, who
file the within Joint stipulation to Strike Default Judgment.
1. On or about May 19, 1995, the Plaintiff, Harrisburg Medical
Management, Inc. through its counsel, wix, Wenger & Weidner,
filed with the Cumberland County prothonotary a Praecipe to
Request Entry of Default Judgment in the above captioned
action.
2. Pursuant to the Praecipe, default judgment was entered on May
19, 1995.
3. The parties have agreed to strike the judgment and further
agree that except as specifically provided herein, striking
said judgment shall be without prejudice to the rights of the
parties to this action.
4. As a result of the agreement reached between the parties, the
Prothonotary of Cumberland County is hereby authorized and
directed to strike the Default Judgment.
5. The undersigned counsel certify that they have authority to
.
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HARRISBURG MEDICAL MANAGEMENT,
INC. ,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
D~CKET NO. 95-1851 Equity Term
ROGER C. PETRONE,
Defendant
CIVIL ACTION - EQUITY
PLAINTIFF'S REPLY TO NEW MATTER AND COUNTERCLAIM
AND NOW, comes the Plaintiff, Harrisburg Medical Management,
Inc., by and through its attorneys, Wix, Wenger & Weidner, who
files the following Reply to New Matter and counterclaim:
43. The averments set forth in Paragraphs 1 through 42 of the
Plaintiff's Complaint are incorporated by reference herein
as though set forth in full.
44. Admitted.
45. Denied. A Harrisburg Medical Management, Inc. ("HMMI")
representative specifically asked the Defendant about the
number of parking spaces which would be available for use by
tenants prior to HMMI's entering into Lease One. Further,
the HMMI representative also inquired as to whether there
was enough parking on the Property for HMMI's intended use.
46. Denied. Prior to its entering into Lease one, HMMI's
representative spoke with the Defendant's real estate agent
who represented that there were seventy-five (75) parking
spaces available for the use of a tenant of the Property.
47. Denied. Prior to HMMI's entering into Lease One, the
Defendant stated that all parking on the Premises was
available for use by tenants, and that the parking area
would be sufficient for HMMI's intended use.
48. Denied. Prior to entering into Lease One and in response to
HMMI's inquiries regarding parking on the Premises, the
Defendant's real estate agent expressly represented that
there were seventy-five (75) parking spaces available for
use by tenants and their patrons. The representations made
by the agent are contained on a real estate listing dated
August 1, 1991, which is attached hereto as Exhibit F and
incorporated by reference herein as though set forth in
full.
49. Admitted in part and denied in part. HMMI admits that the
real estate listing, inadvertently attached as Exhibit B to
its Complaint, is dated February 22, 1993, and also admits
that Exhibit B could not have been provided to HMMI prior to
its entering into Lease One with the Defendant. However,
HMMI denies the inference that no real estate listing was
provided to it prior to its entering into Lease One. The
real estate listing attached hereto as Exhibit F, was
provided to HMMI prior to its entering into Lease One. This
listing provides that there are seventy-five (75) parking
spaces which are available for use by a tenant of the
Property.
50. Admitted in part and denied in part. HMMI's answer to
Paragraph 49 is incorporated herein by reference. By way of
further response, HMMI specifically relied upon the real
2
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estate listing attached hereto as Exhibit F providing that
there are seventy-five (75) parking spaces available for use
of the tenants of the property prior to its entering into
Lease One.
51. Denied. The Defendant specifically represented to HMMI
orally, and in writing (as is set forth on Exhibit F) that
HMMI, upon signing a lease, would have the non-exclusive
right to use all of the seventy-five (75) parking spaces on
the property.
52. Admitted.
53. Denied. The allegations contained in Paragraph 53 are
denied in that the Defendant has attempted to characterize
the terms of Lease One and Lease Two, which speak for
themselves.
54. Denied as stated. Shortly after entering into Lease One
HMMI realized it was being refused access to twenty (20)
parking spaces it was entitled to use pursuant to Lease one;
however, HMMI had, prior to that time, made extensive
leasehold improvements and was operating a successful
business on the Premises. Through negotiation, HMMI
attempted to resolve its dispute with the Defendant. HMMI,
therefore, denies the implication that by entering into
Lease Two it had accepted the Defendant's self-serving
interpretation of his obligations under Lease One. To the
contrary, HMMI never acquiesced in its position that it was
entitled to the non-exclusive use of all parking spaces and
J
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the Defendant's unlawful refusal to permit HMMI employees
and patrons access to the twenty (20) parking spaces is in
violation of Pennsylvania law, Lease One and Lease Two.
55. Denied. The allegations contained in Paragraph 55 are
conclusions of law to which no responsive pleading is
required. To the extent a response is required, it is
expressly and unequivocally denied that:
(a) HMMI acquiesced to Defendant's interpretation of the
number of parking spaces available for HMMI's use by
executing Lease TWo; and,
(b) that the parties had ceased searching for a resolution
of the parking problem which would provide that all
twenty (20) spaces would be available for the non-
exclusive use of HMMI employees and patrons.
56. Denied. The allegations contained in Paragraph 56 are
conclusions of law to which no responsive pleading is
required.
57. Denied. The allegations contained in Paragraph 57 are
denied in that the Defendant has attempted to characterize
the terms of Lease One and Lease Two which speak for
themselves.
58. Denied as stated. The allegations contained in Paragraph 58
are conclusions of law to which no responsive pleading is
required. To the extent a response is required, the
allegations are denied because HMMI is entitled to the non-
exclusive use of all parking spaces on the property.
4
59.
60.
~
61.
Admitted in part and denied in part. HMMI admits it entered
into an Agreement with the Defendant for the use of two (2)
parking spaces which had previously been denied to HMMI.
HMMI also admits that there was no additional charge imposed
on HMMI for its use of these two spaces. However, it is
expressly denied that the March 18, 1994 Agreement entered
into between HI1MI and the Defendant was intended to be a
permanent solution to the ongoing parking problem or a
settlement of HMMI's rights under Lease One and Lease Two.
Denied. The Defendant was not induced to enter into the
interim parking agreement dated May 18, 1995 due to any
representations made by any HMMI representative that the May
18 agreement would permanently solve the parking problem or
settle HMMI rights under the Leases. In an attempt to
alleviate the existing parking shortage, HMMI agreed to
temporarily accept two of the disputed parking spaces. HMMI
representative Guarneschelli never represented to the
Defendant that the Agreement dated May 18, 1995 between the
parties would lead to the ultimate resolution of the parking
problem.
Admitted in part and denied in part. HMMI admits that rear
door and elevator keys were turned over to Dr. Gallagher and
that HMMI presently has the use of two (2) of the twenty
(20) disputed spaces. HMMI denied the characterization of
the Defendant's behavior as a conclusion of law to which no
responsive pleading is required. By way of further
5
" -,
response/ the Defendant's behavior as alleged in Paragraph
61 is inconsistent with the terms of Lease One and Lease
Two.
62. Denied. The allegations contained in Paragraph 62 are
denied as conclusions of law to which no responsive pleading
is required.
63. Denied. The allegations contained in Paragraph 63 are
denied as conclusions of law to which no responsive pleading
is required.
64. Denied. The allegations contained in paragraph 64 are
denied as conclusions of law to which no responsive
pleadings is required.
65. Denied. The allegations contained in paragraph 65 are
denied as conclusions of law to which no responsive pleading
is required.
66. Denied. The allegations contained in paragraph 66 are
denied as conclusions of law to which no responsive pleading
is required.
67. Denied. The allegations contained in Paragraph 67 are
denied in that HMMI has suffered actual and ascertainable
damages as a direct and proximate result of the Defendant's
wrongful usurpation of parking spaces on the Property for
his own use and gain. By way of further response, the
damages suffered by HMMI as a direct result of the
Defendant's unlawful actions include, but are not limited
to:
6
"
1) Rental overpayments from the date of execution of Lease
One to the present for the payment of rent for use of
twenty four (24%) percent of the common area parking
which has been wrongfully denied;
2) Loss of patients/patrons who have ceased using the HMMI
facility located on the Premises due to the lack of
parking with a consequential loss of revenue; and
3) the costs of suit and attorney's fees in pursuing the
instant action.
68. Denied. The allegations contained in Paragraph 68 are
conclusions of law to which no responsive pleading is
required. To the extent a response is required, HMMI denies
that it has failed to mitigate its damages. To the
contrary, HMMI has attempted to negotiate for the use of all
parking spaces to which it is entitled pursuant to the terms
of Lease One and Lease Two but the Defendant has failed and
refused to acknowledge HMMI's rights.
69. Denied. The allegations contained in paragraph 69 are
conclusions of law to which no responsive pleading is
required. To the extent a response is required, the
allegations of Paragraph 69 are denied in that the Defendant
acted unreasonably in exclusively leasing to other persons,
common area parking which had already been leased on a non-
exclusive basis to HMMI.
70. Denied. The allegations contained in Paragraph 10 are
denied in that the Defendant has attempted to characterize
7
the terms of Lease One and Lease Two which speak for
themselves. By way of further response, it is expressly
denied that the Defendant's authority to establish
reasonable rules and regulations includes the ability to
modify fundamental terms of a lease, such as appropriating
common areas available for use by all tenants and conferring
an exclusive right to use that common area upon one person
for a fee.
71. Denied. The allegations contained in Paragraph 71 are
denied in that the volume of traffic generated by HMMI
facility is not unreasonable. The traffic generated by
HMMI's use of the Premises is reasonable and is consistent
not only with the express purpose for which HMMI leased the
Premises, but also other medical arts facilities.
72. Denied. The allegations contained in Paragraph 72 are
denied in that HMMI has not monopolized parking on the
Property. To the contrary, HMMI's use of the parking spaces
has always been on a reasonable, non-exclusive basis. By
way of further response, it is the Defendant, by exclusively
leasing twenty (20) of the available seventy-five (75)
parking spaces, who has monopolized the substantial portion
of parking spaces on the Property. After reasonable
investigation, the remaining allegations of Paragraph 72 are
denied in that HMMI lacks any information as to whether
other tenants of the Property have complained about HMMI's
use of the parking area.
8
73. Denied as stated. HMMI denies that there is not a chronic
and persistent shortage of parking available for the use of
HMMI employees, patients/patrons, as well as other tenants
of the Property.
74. Denied. After reasonable investigation, HMMI lacks any
information as to the truth or falsity of the allegations
contained in Paragraph 74 and, therefore, these allegations
are denied.
75. Denied. The Defendant, in appropriating twenty (20) of the
seventy-five (75) available common spaces for the exclusive
use of others, created the parking shortage on the Property.
Providing HMMI with access to these twenty (20) spaces would
alleviate the existing parking shortage. Further, HMMI has
a contractual and legal right under Lease One and Lease Two
to have access to all seventy-five (75) parking spaces. By
way of further response, the twenty (20) parking spaces
which the Defendant has exclusively set aside are often
vacant, yet, they remain inaccessible to HMMI employees,
patients, patrons, or other tenants.
WHEREFORE, Plaintiff, HMMI, demands judgment against the
Defendant landlord and requests this Court to enter an Order
awarding the Plaintiff:
(a) The amounts of all rental overpayments from the date of
the execution of Lease one, damages for loss of
business due to lack of adequate parking, punitive
9
damages in excess of $20,000, plus pre-judgment and
post-judgment interests and costs of the suit;
(b) an injunction, preliminary until hearing and final
thereafter, enjoining the Defendant from exclusively
leasing parking spaces on the property as HMMI has
acquired the non-exclusive right to use such spaces
pursuant to the leases entered into between the
parties; and
(c) such further relief as may be appropriate under the
circumstances.
COUNTERCL~IK
Count I-Breach of Contract
76. The averments set forth in Paragraphs 1 through 42 of HMMI's
complaint, and Paragraphs 43 through 75 of HMMI's Reply to
New Matter are incorporated by reference herein as though
set forth in full.
77. Denied. The allegations contained in paragraph 77 are
denied in that the Defendant has attempted to characterize
the terms of Lease One and Lease TWO which speak for
themselves.
78. Denied. The allegations contained in paragraph 78 are
denied in that the Defendant has attempted to characterize
the terms of Lease One and Lease Two which speak for
themselves.
10
79. Denied. The allegations contained in Paragraph 79 are
denied in that HMMI contracted with a third party builder
and the Defendant to perform the initial build-out
contemplated by Lease One. In fact, the Defendant signed
and drafted a work letter dated May 20, 1992, in which the
Defendant expressed in writing his desire to construct a
portion of the build-out. The Defendant actually performed
a substantial portion of the build-out, and authorized HMMI
to enlist the services of another contractor to construct
the remainder of the improvements. By way of further
response, it is expressly denied that the alterations for
the premises had a contract value of $200,000. The May 20,
1992 agreement is hereinafter referred to as the "Work
Letter", attached hereto as Exhibit G, and incorporated
herein by reference.
80. Denied. The allegations contained in Paragraph 80 are
denied in that HMMI expressly offered to the Defendant the
opportunity to construct the build-out contemplated by Lease
One. In fact, the Defendant actually performed a
substantial portion of the improvements in accordance with
the Work Letter. The Defendant refused to perform the other
aspects of the build-out, and authorized HMMI to enlist the
services of another contractor to do so.
81. Denied. After reasonable investigation, HMMI lacks the
information necessary to determine the truth and falsity of
the allegations of Paragraph 81 and, therefore, these
11
allegations are denied. By way of further response, HMMI
paid the Defendant $52,164.00 for his work in constructing a
portion of the build-out. HMMI is unaware of the amount of
profit the Defendant made on this construction.
02. Denied. Not only did the Defendant approve the alterations
which were made to the Premises pursuant to Lease One, but
the Defendant actually performed a substantial portion of
the alterations himself in accordance with the Work Letter.
OJ. Admitted in part and denied in part. HMMI admits that it
contracted with a third party builder for the construction
of improvements to the Premises it leased pursuant to Lease
Two. However, HMMI denies that the alterations pursuant to
Lease Two had a contract value of approximately $60,000.
04. Denied. When presented with the plans setting forth such
improvements, the Defendant had the opportunity to exercise
his right to construct the improvements contemplated by
Lease Two. However, despite signing the plans (approving
these alterations), the Defendant expressed no interest in
performing the contemplated alterations.
05. Denied. After reasonable investigation, HMMI lacks any
information as to the truth or falsity of the allegations
contained in Paragraph 85 and, therefore, these allegations
are denied.
06. Denied. The allegations contained in Paragraph 86 are
denied in that the Defendant signed the plans showing the
12
alterations and improvements which were going to be made to
the Premises pursuant to Lease Two.
87. Denied. The allegations contained in Paragraph 87 are
denied in that the Defendant has attempted to characterize
the terms of Lease One and Lease Two which speak for
themselves.
88. Admitted in part and denied in part. HMMI admits that the
Defendant incurred an expense as a result of having to re-
stripe his parking lot to comply with the Hampden Township
Zoning Ordinance. However, it is expressly denied that HMMI
was responsible for this expenditure. Rather, Defendant's
failure to conform his property to local land use
regulations governing parking was the impetus for the
Township requiring that parking area be re-striped to
provide for additional spaces. By way of further response,
HMMI suffered damages as a direct and proximate result of
the Defendant's failure to abide by Hampden Township's
Zoning Ordinance and to provide the requisite number of
parking spaces as required.
89. Denied. The allegations contained in paragraph 89 are
denied in that the Defendant has attempted to characterize
the terms of Lease One and Lease TWo, which speak for
themselves. By way of further response, the averments of
Paragraph 89 are conclusions of law to which no responsive
pleading is required. To the extent a response is required,
HMMI never agreed to indemnify and hold harmless the
13
Defendant from expenses which arose as a direct and
proximate result of the Defendant's failure to maintain his
Property in accordance with the provision of Hampden
Township's Zoning Ordinance, or any other state or local
law.
90. Denied. The Defendant has never made a demand upon HMMI for
the sums he expended in re-striping the parking area.
Accordingly, and by way of further pleading, HMMI has never
refused to reimburse the Defendant for the amounts he
expended to re-stripe the parking lot. Further, HMMI has no
legal or contractual obligation to reimburse the Defendant
for expenses he incurred in conforming the property with the
Hampden Township Zoning Ordinance.
91. Denied. The allegations contained in Paragraph 91 are
denied that the Defendant has attempted to characterize the
terms of Lease One and Lease Two which speak for themselves.
92. Denied. HMMI has never excluded the Defendant from the
demised premises and has always afforded the Defendant
reasonable access to the property.
WHEREFORE, Plaintiff, HMMI, demands judgment against the
Defendant landlord and requests this Court to enter an Order
awarding the Plaintiff:
(al The amounts of all rental overpayments from the date of
the execution of Lease One, damages for loss of
business due to lack of adequate parking, punitive
14
.J1J1 commercial- industrial realty company
1015 MUMMA ROAD, WDRMLEYSSURG. PENNSYLVANIA 11043
MAILING ADDRESS: P.O. SOX 8310' CAMP HILL, PENNSYLVArllA 11001.8010(117)181.5010
LOCATED:
BUILDING DESCRIPTION
Total sq. ft.:
Construction:
Space svailable:
Elec, capacity:
Type IlVAC:
Type floor:
Walls:
Ceiling type:
Lighting:
Elevator:
Rooms & sizes:
Restrooms:
4076 Market Street, Camp Hill, PA 17011
Hampden Township, Cumber laRd County
12,007 SF available; 17,700 total SF
2-story wood frame & steel; original
1st and 2nd floors of original stone
1200 AMP; 3 phase
Gas-forced hot air; electric air conditioning
Csrpet
Drywa 11
Acoustic tile
Recessed fluorescent
1500/1 otis
1st floor 1,373 SF; 2nd floor 1,339 SF. Suites available
from 368 SF to 6,450 SF contiguous. See plan on back
Orig, bldg, 1 per fl in-common; new bldg. 2 per fl in-common
in bldg (16,743SF
building stone
house
Rentable)
LEASING INFORMATION
Pr~ce por sq. ft,: $15
Term of lease: Minimum 2-year
Options: Yes
Escalations: Negotiable
Possession: Within 30 days after leases fully executed; depends on buildout
Finishing allowance: Reasonable buildout will be provided at landlord's expense
UTILITIES AND SERVICES ItICI.UDED IN LEASE (AS MARKED)
X Heat X Taxes
X Electric X Insurance
X Air Conditioning X Structural repairs
X Parking lot maintenance X Interior repairs
X Water & Sewer Z Plumbing repairs
Otner: *Two times per week
X Trash
;; Janitorial
X IlVAC repairs
Light Bulbs
Supplies
Apartment-Office Limited; permits medical, business and pro-
fessional offices1 educational instruction, public and
schools, associat on offices,
24,046 (May 30, 1991)
75 spaces
High visible and easily accessible from all major roadways.
Shopping and restaurants nearby, Tudor-stype architecture.
lIorth side of building overlooks the Conodiquinet Creek.
FOR FURTHER INFORMATION,
PLEASE COllTACT:
ZONING:
TRAFFIC COUNT:
PARKING:
COMMENTS:
Date:
File No, OL91-1BO/I
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VERIFICATION
I, Phillip Gunrneschelli, Director of Integrated
Services of lIardaburg Medical Management, Inc, a Pennsylvania
corporation, Plaintiff in the foregoing pleading, have read the
foregoing pleading and hereby affirm and verify that it is truo
and correct to the best of my personal knowledge, information
and belief. I verify that all of tho statements made in the
foregoing are true and corroct and that false statements made
thorein may subject me to the penalties of 10 Pa.C.S.A. section
4904, relating to unsworn falsification to authorities.
HARRISBURG MEDICAL MANAGEMENT, INC.
ny:f~~ ~AAMAS) OJ L
Phillip Gu rneschelli -
DATE: June 26, 1995
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BACKGROUND
4, Plaintiff leases only five thousand eight hundred and fifty-five (5,855)
square feet at the Premises, out of a total sixteen thousand seven hundred and forty three
(16,743) available square feet. In other words, Plaintiff leases only thirty-five (35%) percent
of the available space in Mr. Petrone's building. ~ Defendant's Request for Admission
No. 12 (attached hereto as Exhibit "0") and response thereto (Exhibit "E"). Yet, Plaintiff
advances a claim to the unrestricted use of substantially all parking at the Premises, to the
exclusion of other tenants and their business visitors, and well in excess of any utilization
which would be proportional to the percentage of space which is leased at the Premises by
Plaintiff, ~ Defendant's Answer to Plaintiffs Interrogatory No, 2 (attached hereto as
Exhibit "F").
5. As a result of parking pressures at the Premises, (which began
following Plaintiffs arrival at the Premises), Mr. Petrone was approached by other tenants
who were dissatisfied and demanded assigned parking for their own use. ~ W.
6. To appease his other tenants, Mr. Petrone, acting reasonably, provided
assurances that each would be entitled to utilize a certain number of assigned spaces under
the rear of the building (the "Covered Spaces"), M,
7. The Covered Spaces have always been considercd "private" by the Mr.
Petrone, and are not "common areas" as that term is utilized under the Lease, ~
Defendant's Answer to Plaintiffs Interrogatories, Exhibit "F", '2. In fact, Mr. Petrone at
one time considered turning the building into office condominiums, and even the condo
2
registration documents (which were ultimately ncvcr filed) showed thcse particular covered
spaces as "rescrved" to the owner, ~!d,
FAILURE TO STATE A CLAIM
8. Plaintiffs Complaint fails to statc a claim upon any thcory, bccausc
even the relief requested will not bcncfit Plaintiff, but rather will only inconvenience the
other tenants and Plaintiffs own patients,
9, Currently, only building tenants are using the Covered Spaces eithcr for
their own use, or that of their employees. None of the disputed covcred spaces are utilized
by individuals not employed at the Premiscs, !d. at '7,
10. This arrangement, put in place by Mr. Pctronc in rcsponsc to the
parking pressures created by Plaintiffs presence at the premises, has several benefits for all
concerned, including, inter alia:
a) by having tenants and their employees park in the Covered Spaces to the
rear of the building, spaces to the front of the building - ncar the public entrance - are
left vacant for business visitors to the Premises such as Plaintiffs patients;
b) tenants and employees are able to use a private entrance to the rear of the
building, whereas visitors could not;
c) if visitors (and particularly Plaintiffs patients who may be sickly, aged, or
infirm) were to park in the Covered Spaces, such visitors would have to walk up a
hill and completely around the building to get to the front entrance;
3
d) tenants and their employees are more familiar with the parking layout to
the rear of the building, which is somewhat cramped and could be confusing to a
visitor,
II. Most importantly, however, if this Court were to grant the relief
Plaintiff seeks, such a decree would JlQ1 benefit Plaintiff. No new parking spaces would be
created, and no parking congestion would be alleviated. To the contrary, all that would
occur if Mr, Petrone were forced to strip his tenants of their assigned spaces is that those
tenants now consistently parking out of the way and to the rear of the building in the
Covered spaces, would be forced to park wherever they could, including at the front of the
Building, nearest the public entrance,
12, As indicated above, this would not ease congestion, because tbe same
number of vehicles would still be parking in the same number of parking spaces. The only
difference would be tbattenants and employees would lose their certainty regarding the
location of their parking spot, and would lose the convenience of easy access to the private
entrance, while simultaneously visitors and patients would likely have to park further from
the public entrance.
13, Indeed, even Plainlifrs agent, Philip GuarnescheIli, Manager, Facilities
and Corporate Real Estate, acknowledged the pointlessness of the relief requested by Plaintiff
herein in a memo directed to Dave Sarcone, Vice President of Ambulatory Services at
Capital Health System on June 29, 1993. Regarding the parking issue at the Premises, Mr,
4
Guameschel1i wrote as follows: "no mailer how we look at it, it will be a problem for us,
We have only a few options, one is to take him to court but, if he has no other parkine. I
don't know what we could expect," A true and correct copy of this document is attached
hereto and made a part hereof as Exhibit "G",
14, As a result, it is clear that the relief Plaintiff seeks will not benefit
Plaintiff, yet wlll simply harass and inconvenience all others concerned. Thus, Plaintifrs
Complaint fails to state a claim upon which relief can be granted. Additionally, greater harm
will result from the issuance of the decree Plaintiff requests than from the withholding of the
same, and relief should also be denied on this basis,
UNTlMELlNFSS - GENERALLY
IS, All of Plaintifrs claims are untimely brought and relief should be
denied and Plaintifrs Complaint dismissed for this reason as well,
16. Plaintiff admits that it had concerns about the adequacy of parking at
the Premises even before it siened the first Lease, ~ Plaintifrs Response to Defendant's
Request for Admissions, attached hereto as Exhibit "E", '4,
17. Plaintiff also admits that it first complained of a parking shortage on
the Premises as early as February, 1992, and has directed correspondence to Mr. Petrone
raising the parking issue again and again since that time, See correspondence from
Plaintifrs counsel made Exhibit "H" hereto.
18. Indeed, Plaintiff began threatening the commencement of legal
proceedings and other retaliatory actions against Mr. Petrone as long ago as June I, 1993.
Yet, the instant action was not brought until April II, 1995. hi.
5
19. During this unreasonable delay by Plaintiff, Mr, Petrone made
arrangements with the other tenants for the use of the covered spaces in response to the other
tenants' insistence upon the same.
20. Also during this unreasonable delay by Plaintiff witnesses
recollections have faded and key witnesses have left Plaintiff's employ, ~ Plaintiff's
Answer to Defendant's Interrogatories, (Exhibit "I") at '1.
21. As a result, it is clear that Plaintiff's action is untimely brought and
should be dismissed on this basis.
UNTIMELINESS. FRAUD CLAIM
22, At a minimum, Plaintiff's "fraud" claim is clearly barred by the
applicable two-year statute of limitations. See 42 Pa. C,S,A. ~5524 (misrepresentation claim
untimely if brought beyond two years from date of misrepresentation).
23, In Plaintiff's Answer to Defendant's Interrogatories, Plaintiff testifies
that Mr, Petrone defrauded Plaintiff through alleged misrepresentations made "in
approximately February 1992, and Il!il2r to the parties entering into Lease One. ~ Exhibit
"I", '3 (emphasis added), Consequently, the "representations" forming the basis of
Plaintiff's "fraud" claim must have been made prior to May 20, 1992 (the date of execution
of "Lease One"). Therefore, the representations upon which Plaintiff relies were
unquestionably made more than two years prior to the filing of this law suit on April II,
1995.
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24. Additionally, any alleged prediction by Mr, Petrone as to the suitability
of Mr. Petrone's space for Plaintifrs intended future use cannot be fraudulent as a matter of
Pennsylvania law.
25. As a result, it is clear that Plaintlrrs "fraud" count must be dismissed
as untimely,
RATIFICATION
26, Moreover, Plaintifrs discovery responses made clear that it had
concerns regarding the adequacy of parking even before entering into Lease One, yet it did
so, See Defendant's Request for Admission and Plaintifrs Answers thereto, Exhibits "0"
and "E" 14.
27. Additionally, even ~ the adequacy of parking at the facility had
become a bone of contention between the parties, and even ~ Plaintiff became aware of
Mr. Petrone's position that Plaintiff was not entitled to utilize the Covered Spaces, Plaintiff
signed Lease Two on January 29, 1994. See Defendant's Request for Admission and
Plaintifrs Answers thereto, Exhibits "0" and "E" at 18.
28. Furthermore, Plaintiff admits that it requested modifications to the
terms ofl.ease Two to address the parking issue with greater specificity, and admits that Mr,
Petrone refused. Id..
29. As a result, Plaintifrs conduct, in executing a second Lease with
identical parking provisions, after knowing of Mr. Petrone's interpretation of these
provisions, and knowing that Mr. Pelrone refused to modify the terms of this Agreement
7
with respect to parking, constitutcd a ratification of Mr. Pctrone's Interpretation which bars
Plaintifrs claims,
SE'ITLEMENT AGREEMENT - WAIVER/F..5TOPPEL/UNCLEAN HANDS
30. Lastly, while Mr, Petrone has steadfastly denied that Plaintiff has ~
entitlement to use any of the Covered Spaces, the parties settled the entire dispute concerning
the parking issues by their execution of a written instrument (hereinafter the "Selllement
Agreement") dated March 18, 1994, (a true and correct copy of which Settlement Agreement
was attached as Exhibit "A" to Defendant's Answer to Plaintifrs Complaint, a copy of which
Answer with this Exhibit is attached hereto and made a part hereof as Exhibit "B".)
31. Plaintiff has admitted that its agent, Phil Guarneschelli, was acting on
behalf of, and with the authority of Plaintiff when the Settlement Agreement was signed.
Sl:ll Defendant's Request for Admissions, Exhibit "0"; Response to Request for Admissions,
Exhibit "E", '12,
32. Mr. Petrone agreed to waive a monthly fee relating to the two
designated covered spaces in exchange for Plaintifrs agent Guarneschelli's representation
that such an accommodation would fu1\y and finally resolve this matter. Sl:ll Defendant's
Answer to Plaintifrs Complaint, Exhibit "B" at '59,
33, Plaintiff admits that Mr, Petrone fu1\y performed the terms of the
Settlement Agreement, through furnishing the key to the private rear entrance and two of the
disputed parking places to Plaintifrs employees. ~ Plaintifrs Reply to New Matter,
Exhibit "C", '59.
8
34. Through Its admilledly authorized execution of Exhibit" A", Plaintiff
has waived any claim it may have had regarding the parking issues, or, alternatively, should
now be estopped from asserting the same.
35, By bringing this action notwithstanding its wrillen agreement to resolve
this matter on the basis set forth above, and despite its prior ratifications, Plaintiff has
demonstrated unclean hands with regard to the very parking issue now before this Court. As
a result, Plaintiff cannot now be heard to advance its claim due to the equitable doctrines of
waiver, estoppel, and/or unclean hands.
WHEREFORE, for any and a1\ of the foregoing reasons, Defendant Roger C. Petrone
respectfu1\y requests that Plaintifrs Complaint be dismissed, and that Defendant Roger C.
Petrone be awarded costs of the defense of this action,
ECKERT SEAMANS CHERIN & MELLOTI
A\\~~
Mark D. ~radshaw, Esquire
Supreme Ct, 1.0. #61975
Christopher M. Cicconi, Esquire
Supreme Ct. 1.0. #19331
One South Market Square Building
213 Market Street
Harrisburg, PA 17101
(717) 237-6000
DATED: U 2.? /rfC
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Attorneys for Defendant
Roger C, Petrone
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HARRISBURG MEDICAL MANAGEMENT,
INC. ,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiff
v.
DOCKET NO.
ROGER C. PETRONE,
Defendant
CIVIL ACTION - EQUITY
COMPLl\INT
1. The Plaintiff, Harrisburg Medical Management, Inc.
(hereinafter "HMM"), is a Pennsylvania corporation with
offices at 17 South Market Street, HarriSburg, Pennsylvania
17105.
2. The Defendant, Roger C. Petrone (hereinafter "Landlord"), is
an adult individual who maintains offices in a commercial
office building, with parking, located at 4076 Market
Street, Hampden Township, Camp Hill, Pennsylvania 17011
(hereinafter the "Property").
3. On or about May 20, 1992, HMM and Landlord entered into an
office lease (hereinafter "Lease One") whereby HMM agreed to
lease from Landlord approximately 4,600 square feet of
office space together with certain parking rights (the
office space, common areas and parking lot are hereinafter
jointly referred to as the "Premises") at the Property. A
copy of this lease is attached hereto as Exhibit "A" and
incorporated herein by reference.
-.....
4. Pursuant to Paragraph 1 of Lease One, in addition to the
office space which was leased, the Premises included the
unlimited and "non-exclusive right to the use of all common
areas inclUding hallways, walkways and parking areas on an
'as available' basis."
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5. The real estate listing for tho Property dated February 22,
1993, which was supplied by Landlord's agent, the realtor,
provides that the Property includes, among its amenities, 75
parking spaces for the use of tenants of the office
building. A copy of this listing is attached hereto as
Exhibit "B" and incorporated herein by reference.
6. This real estate listing was provided to HI1M by the realtor
prior to HMM entering into Lease One and was relied upon by
HMM.
7. HMM operates a mUlti-physician practice at the Premises
which provides primary health services to a broad population
of patients.
8. Upon relocating its operations to the Premises, HMM
experienced an appreciable shortage of available parking
spaces for use by its employees and patients.
9. HMM notified Landlord of this shortage in early 1993. A
copy of this notice is attached hereto as Exhibit "c" and
incorporated herein by reference.
10. In response to H~1's inquiries regarding the shortage of
---
parking, Landlord notified HMM that he was leasing 20 of the
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75 parking spaces located on the property to persons or
entitities other than HMM for their exclusive and private
use. According to Landlord, these 20 spaces were "limited
common elements" subject to a Declaration of Condominium
which was filed in the Cumberland county Recorder of Deeds
office. Notwithstanding the Landlord's representations
concerning these twenty spaces, a review of the records in
Cumberland county Recorder of Deeds Office has revealed no
condominium documents have ever been filed by Landlord for
the Premises.
11. The 20 spaces which the Landlord alleges to be limited
common elements are at the rear of the Property and are
shown on a parking diagram attach,ed hereto as Exhibit "0"
and incorporated herein by reference.
12. On or about February ~3, 1993, the parties reached an
interim agreement (without prejudice to either party's
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claimed rights) to alleviate HMM's parking shortage for the
Premises; the Landlord agreed to provide HMM with use of the
20 disputed parking spaces and with keys to access the
nearby door and elevator.
13. This agreement was entirely ineffective as the Landlord
neither provided HMM or its employees with access to the
rear parking spaces, nor provided HMM with the keys to the
nearby door and elevator.
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14. On January 29, 1994, because of its need for increased
office space HMM entered into a second lease with Landlord
(hereinafter "Lease TWO") for additional office space at
property whereby HMM agreed to lease an additional 1,155
square feet ("Additional Premises"). A copy of Lease Two
attached hereto as Exhibit "E" and incorporated herein by
the
b;rs 0';' c;.
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reference.
15. Lease TWo contained the same parking provision as Lease One
(see Paragraph 4 of this Complaint).
16. In May, 1994, HMM applied to Hampden Township for a building
permit to renovate the Additional Premises leased by HMM
pursuant to Lease Two.
17. At the end of May, 1994, the Township rejected HMM's
building permit application because the Landlord had failed
to provide the requisite number of parking spaces on the
property as required by the Hampden Township Zoning
ordinance.
18. The Landlord's failure to comply with the parking
requirements of the Hampden Township Zoning Ordinance
resulted in HMM experiencing a two month delay in its
occupancy.
19. The building permit for the Additional Premises was issued
by the Township to HMM on or about July 29, 1994, after the
Landlord agreed to re-stripe the parking area to provide for
4
more parking spaces and to construct additional parking
spaces.
20. The Landlord's agreement to provide more parking spaces
through re-striping of the parking lot and to construct
several additional parking spaces on the Premises had only a
negligible effect upon the parking shortage as the Landlord
still refused to provide H~1 with access to tho 20 disputed
parking spaces.
COUNT r - SPECIFIC PERFORKl\NCE
21. Paragraphs 1 through 20 are incorporated by reference herein
as though set forth in full.
22. Lease One and Lease Two are valid contracts between the
parties.
23. HMM performed all material obligations on its part under the
Leases.
24. Landlord breached the Leases, including but not limited to
paragraph 1 of each Lease, by failing to provide HMM, its
employees and patients with access to all parking spaces on
the Property.
25. Landlord breached the Leases by entering into contracts
exclusively leasing parking spaces on the Property to third
parties, when such property had already been leased to HMM
on a non-exclusive basis.
26. As a direct and proximate result of Landlord's breach of the
leases, HMM has suffered damages in the form of overpayment
5
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of rent for the portion of the Premises which it has leased
but has been prevented from using.
27. As a direct and proximate result of Landlord's breach of the
Leases, HMM's business has suffered as it has not been able
to provide adequate parking for its employees or patients,
which has resulted and will result in a loss of business to
Landlord.
28. The Premises, as real property, are unique and HMM has no
adequate remedy at law to compensate it for use of the
twenty parking spaces.
29. HMM has been irreparably harmed as a result of Landlord's
unlawful refusal to allow HMM, it's employees or patients
access to the twenty parking spaces.
NHEREFORE, the Plaintiff, IlMM, demands judgment against the
Defendant, Landlord, and requests this Court to enter an Order
awarding the Plaintiff:
,(a) the amount of all rental overpayments from the date of
. ,
the execution of Lease One, damages for loss of
business due to the lack of adequate parking, plus
prejudgment and post judgment interest and costs of the
suit;
(b) an injunction, preliminary until hearing and final
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thereafter, enjoining the Landlord from exclusively
leasing any parking spaces on the property as IlMM has
acquired the non-exclusive rights to use such spaces
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pursuant to the Leases entered into between the
parties; and
(c) such further relief as may be appropriate under the
circumstances.
COUNT II - OUIET ENJOYMENT
30. Paragraphs 1 through 29 are incorporated by reference herein
as though set forth in full.
31. Landlord breached its common law obligation to provide for
HMM's quiet enjoyment of the Premises by entering into
private contracts and leasing real property on the Property
to third parties, when such property had already been leased
to HMM.
32. As a direct and proximate result of Landlord's breach of
HMM's right to quiet enjoyment, Hilll has suffered damages as
set forth in Paragraph 26 and 27.
NHEREFORE Plaintiff HMM demands judgment against the
Defendant, Landlord, and requests this Court to enter an Order
awarding the Plaintiff:
(a) the amount of all rental overpayments from the date of
the execution of Lease One, damages for loss of
business due to the lack of adequate parking, plus
prejudgment and post judgment interest and costs of the
suit; and
(b) an injunction, preliminary until hearing and final
thereafter, enjoining the Landlord from exclusively
7
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leasing any parking spaces on the property as HMM has
acquired the non-exclusive rights to use such spaces
pursuant to the Leases entered into between the
parties.
(c) such further relief as may be appropriate under the
circumstances.
COUNT III - FRAUD
33. Paragraphs 1 through 32 are incorporated by reference herein
as if set forth in full.
34. HMM was induced to enter into the Leases with Landlord upon
the representations made by Landlord and Landlord"s agent
that the property had seventy-five parking spaces available
for use by all tenants.
35. Landlord knowingly, intelligently, willfully and with a
reckless disregard or a wholly unwarranted disregard of
Hilll's rights or interests, misrepresented, concealed or
otherwise failed to disclose that HMM would not have access
to all seventy-five parking spaces on the premises.
36. Landlord knowingly, intentionally, willfully, and with a
reckless disregard or a wholly unwarranted disregard of
HMM's rights or interest, misrepresented that the twenty
spaces reserved by the Landlord for his own use were limited
common elements under a Declaration of Condominium filed
with the cumberland'county Recorder of Deeds.
8
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37. Landlord's statements regarding the availability of 7~
parking spaces were made with the intent of inducing H~1 to
lease the premises. Further, Landlord's statements
concerning the parking spaces which were purportedly subject
to the Declaration of condominium were intended to prevent
HMM from taking legal action to enforce its rights under the
Leases.
38. HMM justifiably relied on the Landlord's representation
concerning the number of spaces available for HMM's use on
the Property before it entered into the leases.
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39. HMM justifiably relied on Landlord's representations that
HMM did not have the right to use the parking spaces
reserved by the Landlord because they were limited, common
elements of a condominium lawfully created and recorded.
40. The malicious misrepresentations made by Landlord were made
in bad faith and with wanton disregard of HMM's rights under
Lease One and Lease Two.
41. As a direct and proximate result of the Landlord's
fraudulent misrepresentations, IlMM has suffered damages in
the form of overpayment of rent for the portion of the
Premises which it has leased but it has been prevented from
using.
42. As a direct and proximate result of Landlord's breach of the
Leases, HMM is presently being prevented from using 20
parking spaces on the Property which have been unlawfully
9
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reserved by Landlord for his own uses. Landlord's actions
have caused Hilll to lose a substantial portion of the, benefit
of the bargain anticipated by HMM.
NHEREFORE, Plaintiff HMM demands judgment against the
Defendant Landlord and requests this Court to enter an Order
awarding the Plaintiff:
(a) the amount of all rental overpayments from the date of
the execution of Lease One, damages for loss of
business due to the lack of adequate parking, punitive
damages in excess of $20,000, plus prejudgment and
post judgment interest and costs of the suit; and
(b) an injunction, preliminary until hearing and final
thereafter, enjoining the Landlord from exclusively
leasing parking spaces on the Property as HMM has
acquired the non-exclusive rights to use such spaces
pursuant to the Leases entered into between the
parties.
(c) such further relief as may be appropriate under the
circumstances.
10
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Respectfully submitted,
NIX, NENGER & NEIDNER
DATE: March 30, 1995
BY~~?c Q~.c1r
Dean A. We dner, Esquire
1. D. #06363
Thomas A. Hutton, Esquire
I.D. #65853
508 North Second Street
Post Office Box 845
Harrisburg, PA 17108-0845
(717) 234-4182
HBCHEOIC.COH - TAH6
11
FEB 19 '93 12:50
FR,'CAPITAL HEALTH SYSTEM
PAGE.OOS
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OFFICE LEASE
4076 Market: Strent
CeIlp iU.ll, penr.sylva:1iu, 17101
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a ?er.r.sylvania Co~:c:c:.on wio off.:.ces at
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Har=':'s~J.-g, ?~;sylva,ia 17101
(l:erei.'1 called "!..;ss,*,")
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~ .' '. ",
" ,,:,,' In 'cons:.eerat..!.c:1 of, and I::.cer ar.<l subjeC't: ~, the m.:t'Jal ccver.e.!lts,
cocdition, and cor.sice=e.tion herein, r~:.ted, Lessor and Lessee, intendiJ:q to
, be lega1.1y,~ed l:ere!Jy, e.gree as folk.'S:
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1., Leese:! ?rrnuses:
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, :; : Lessot hereby lets e.nd demises to Lessee, who he..--eby le.ases f...-cn Lessor
that' oortiQn' of the premises sit'.:ate e.t: 4076 l"uket St:ceec, C5Il9 Hill,
, ~land r::cur.'t:y, PA located on the iit'st: fleor of the i:r.lllding contair.1.'1g
4,600 saUare' feet erA is = fully shc'.'ll on the sketc.'1 oll1l1 attached he.."flto
. 'as,Exhibit A hereof. Lessee shall also ):ave 'l:lieri1Oii=exclilsivc":~..Ldit::tlj.tJje'!use',r
>0:1:; ill. ~n' areas! iDcl.;.Hn;.,.-rnauwa;;;;;~":mLlt'.i';;;;:'aix1: ~-!,l ~g~arc4s:; on'.;aJL,"as.'
,~af;le;~.Siiii!S~'ii" ~";l J - 'J ~ t""".~
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, ,: ' :;',., ~'G'iii:'shali. have and hold the ee:nl.sed premises for an init.!..al t= of
:' ,uVli'tear:s:'imd seyen ~thg, said te..'11l c:mnen;"..,g August 1, 1992 end CIXililq
r:ebruary: 1 , '199 a . Prcvided tha1: Lessee shall have the ogtion, unless Lessee
, sha.1;1 then'!xi: in c!efaul t hercw:Ccr, to. ex1:end th!.s lce.sc for t.!u:'ee (3) ~cr
, fi:ve (5) ycer extensiocs in accordance ...it!! tha t~ fu..""t.W prcviCcd in eis
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EXIlIBIT ^
2318233
P.OS
I."
'..' .,
FEn 19 '93 12: 51
FR " C,iP I TAL HEALTH S\'STEII
PA';E , 006
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, , lease. ~Q r.ot.:.CQ of u:-Lion to lD=cise such ,~:te.'lS:'ons shall be c;:.Ve:l by
Iessee t:c LCssor no later than s.!;c (6) ItDnths ~:JriDr to t!:e e.x;?iratiCT.1 of the
then currlmt l=SB teJ::1l.
3. ,;;....se ,!lent:
Ourir.g tha initial tm:m of this lease Less~ shcll !?3Y to !.essoJ:, as
bas!! rent the follo-.'i-"lg ",.u;JIlts:
HCn~ 1 ~~~~ 6 incluslva c $4,200 ~~ ~n"h.
~Soncl:s 7 th.t"O'~<;h 30 inch:s:.ve.. $5,000;?l!r ;;ont.'1.
,M:lr.t..\s ~l thrc-~91 67 inclusive" $3,678 ;?l!J: ;;onr..'l.
,
In 'ete eVe,!\t !?..ss~ shall e.\'tcnd tJ:e loose ter.n hereof i., accor...a.1ce
:.ith the prov:.sions here.!..., contair.cd theretor the Ccse rem: c-.u-.L,g sl:ch per:.cd
of e.':te!'.sio:1 shall i:e $5,000.00 'D"-.l" ;;ont!: subject to t..';e cCditior.al rem:
, ' ed.j\:st:nents here.!.... bolC'", provide:: in p:!Iac:=aph 4.
,
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'4. "e~t !::c;:'eese:
" :' Lessee sr.all ::.:.-v to Lesscr r.xmtr.ly as cd:i!.t:.onal rent Cur!.::g e:,y reneo.'al
te.::n. Ce.:"e'.lr.ce.=: -..
(a), a' S'.:r.. e:;:~al to ':\\'enty-:Ei'le (25) ~-c= of e..'1'f :.:~c::cese L. t.'.e
COI:S\..o"i'fS"': ?:"~ce :.tcex (all product). D~ir.g the fi:.-~ five j'e=r e..~e~:.cn, t.:e
eorist..-..er ?r:.ce !r.dcx ed.i:J~;...=t sl:all ucllize t.':e C.? r. as last :mblished :"''1
t!:e Wall St:e;;t .:;Cl:....-~ l' on or o:-icr to );cve:;Oer 1, 1992 as t..';e reSe
. caleua-cio:l a:1d ti".at lest C"~llsi:ed on 0:: before Ncv~-r 1 t 1997 as t..~e
edjusti;:g :ac-..o::-. !.esso:: ;;'i.ll ::"'L"1 !.P.ss~ 0: ti:e i:1.i~al adjustr.e.'11:S :Eo::
C;P.!. O:J,or bo:ore Dece:rber 31, 1997 '.i1lch edj\:.$t:r.~'lt sr.all be erfec-::....e
, /o'MC.'1 1, 199B. ~crCi!.fter notice of edjust:T~:\ts shall be /raCe b-f Decemer :l
of tl:a last '1e.a:t: of each five (5) year e.'rtension to be effective Marc., 1 of
thl1l'follcwi.rig year; the edjustmo'\ts shall apply to t.,e base ;:ent as ot.':er,...;..se
aoollcable herC'.mclcr, ar.d,
"-. .
, I ":', (b),tl:e !.essee's p~nio::ate sr.l!.re of e:I'f increases in the follo-.dng
.. eia:e.'lSes'attrili~t:able to the preuises at ~076 I'd'tet Street, to '.dt: taxes,
: ,'ioSW:ance;: utillties and naint=ce, lE'io'l\ cere, snow and trash re:lPllal.
'LeSsees,oro::Xll:.....:.onate share shall be deteoni.ned by a L'1lcclon in which the
" ,'4,600 sc;:Uare iet:t leescd t:c Iess~ shall be tl:e nl:r.crator and tl:e total
leesablesOace in the preui.ses 14,567 SO'.:ere feet p1.53lis) shall be the
dcitiCr:1l.natOi:'~, Increases to tho variabla "items desc:ribcd abovo shall be
'. : "c;al~~ediising the act'.:al costs inC'.u:::cd during term f::a;t August 1, 1992
, t:hrd\:gh July, 31, 1993 as tho b3se yeiIr. Tbe initial adjustments will be
, 'citJ:culatecVusing the act".ml COst-9 inCll.."":'ed cIur4-1\g the peried Iran August 1,
19~3, tbrcu91 July 31, 1994. Lessor will notL."y Lessee of the anrn:al
: 'adjlistmeilts' on or before Septmber 1, beginning in 1994, in each year duri=a
.. ' tho'1:l!l::1l' hereof or =y e:tte!lSion thereof to be effec"...ivll October 1 of the sii:ne
'year: '
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2318233
P. OG
FED 19 '93 12:51
FR,- CAPITAL HEALTH SYSTEM
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, (C) ?rcvided, ha,,'ever, that: the b:lse end. additional :e.'lt ~-ab1e
"..heieur.der to l:o ef:cctive FcbI:"~e...J' 1, 1998, shall be no less than ~5,400 per
, ='th plus any additional CllOUlltS clue L'l eccorcience I"it.i. tile previsions 0:
pcrag:ri!p!l 4 (b) hereof.
" ..,' The e.djurt;;',ents herein described shall cont:.r.ue to apgly ~!..::g the te.."':'i1
o.,f ,any e.'<l:e.-ision hereof.
5: ?esseils:.on':
....
:: ; , ,tesscil shall be civen oossession of the de'ilise:i ore'ilises c;:on
Cam-e.~eTier.tof t.~e ter:n of bis tease. ..
'6 "n"lll~;e""
. , U~ _l,._ ....
, ' t.esror '.ill ?:cviCe ar.d sl'.e.!l pay :or heatl elec-..:-icity, .ater c.z;d se-.-er
ar.d air co;:<i!:::.or.i::c. The ebUcatien ;:0 crovidc heeti;:o a..:e air cc::ditioni.:.c
,sl'.e.!l be limited to - r.o nore t.!la.; si.-,;t;y (60) hcurs per '''ee.~. ~eac s;.~ '1 re -
p::ovicro i:1, S"Jch :i~.r-.~cr as to prcvide a mi..:u.rn..:rn -cerperat\:re of 72 ceg::ees'.
'Air, condit!.or.i=g shall provide a i1'o3Xi::-.J:n ter.perat'JXe of 72 c!e".:.ees. Lessee
, shall be re5pJr.s.!..ble for janitorial se.."Vices for the leased S?'lce, !.er.dlord
, sr.e.!l orcvide ';C!l'.ite::!.al sCr'Jieo to c=n areas of t.':o orcmiscs. ?::cvided
':H-\..~;' "'~:I"" ";'~C::~ S~,o" l-o- ~"'=-S'\"'ll5o ~-r e'~-:c .....",_. ce-":c"
__~_ ~'"" _~"J........ ..........._ _''; __ __ ~__........ ....,;-.....__ w.'-__...~.. _v... ...
. a~~ilil1t:able ~o t..~e leased -::::en:.se.s 1.., excess oi S250. 00 L; f..r:v r.o~,:.:"l a....:d
.'ace:.- and: se-.-er c;.~ce in e.~ccss of 5150.00 ocr OI:erter at'::.:'ilii:.tcble -:0 t::.B
lease::!. rJrf!i\ises. ~e5S \:.t:J.it-1 billLoo:c sWl be sci:rrJ.tted by !..essor :0
Less~ :''h!.c!l si:a.ll b2 paid !:-I r.es~ Id.c...J..,' tb!.r.:-I (30) cays cf =e:e:.~
the:~f .
.,,7. " 1r.ll.,te."A'lce ar.d ;l.ecci.rs:
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" (a)" ~el Lessor will rraintain in ~ condition and ::~ t.~e
,S""....-i:~ :;:ort.!.ons of the demised pre>lises, the exterior thereof, t.':e roof,
1I'lil15, eo...-n...ep:;U'C.S, S'oll."'ter, pipes and cor.ciuits e.'<l:erior to the buildi..~g line,
~~ areast: sidC'fo'i11ksand cu.."i:s adjacent: to the denised preuises cu:d rrake
'aU"naJ~r facilities and ~..!lt, unless suc!l repai:s or rC?lacetlellts are
,: necessary or desL--able clue to the negll~ce of Lessee, Lessee's sublessees,
~c,essiona.ires, bJ,siness invitees, licensees, i!l;jents, ser....a.'ts or e;gl~.
, ',' ' " (b) :Less~, at its own cost and expense, ''''ill keep in qxd condition
.. enq',i:c\?!llr,:tl:c'interior of the deni.sed preni.ses, darrege by fize, elme..'1ts and
'rllB.Sonable;wec.r.. aOO tear er.cepted. At the e:o<piration or ;:emi.Jlation of this
: ..~ei Lessee ~hal1 deliver Ufl tl~e deui.sed premises, and at the ti~ of such
..c!e],iVe..."'Y~"theinterior of the deui.sed premises shall be i.-1 ~ ccr.dition and
" ,':r~" o'rti:inarY,"'Gar and tear excepted.
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.. ": ;,,:," (e):. ,Lessee ,shall not: perform a..rt acts C'l:' carq on arrJ prac-..ices 1I'hic:l1
ltl:ly...L,jure ,tlie demised preuises or be a nuisar.ce or ~ce to the health or
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2318233
P.1)7
FEB 19 '93 12.52
FR" ("PITAL HEljLTH S"STEII
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P",,;E . 008
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Illlf ety of oi:her te.:l!!:l ts . T..e$see shall not buril any trash or c;;a.r:bage in or
~t ,t.'le e!eniso:i. pl'eniscs. Lesse13 shall not kee;> or disple:y eIrf m:...-chandise
or other items on or ot!:er.n..se obstruc:: the camon arees of the e.'lt!=e
prilje<::1:. 'The pl\:i\bi:g :acilit.!.es sr.ell not: be used for any puI?:lse ct.'ler ~""n
tlidt fc;:' which thev '.'C..'"C constr~Cl:ed alld no fo:~eJ.t;;1 subst'-"~ce of a.r;v ld.:.d
sbail be th....'o?..n t.':erein. lte1the: Lessee,' or 1':5 agents cr etplcyeei; shall .in
any ..c:y e!eface any '.?!ls, ccil.i.oC;S, per:;it.!.ons, floors, v.=I, stone, ~
work or EJ'rf ~ of ti:e demised prenises.
.. '"t,. :. '
..' ,(d) 'the cost of any cr.ans:s, inproveTe.'1\:s, alterat.!.cr.s or 11.'.;e r.etter,
, wi 1:;;' n the c!eniscti premises req-J.i=ed to l;e :n=CI! by eny scvel'::ne:lt 0::-
,goye=<:'el'lt,al age:lcy or L-.st...-.:ment:clity, incllld.L-lg CJly aU1:1:odty or c.:m:ti.ssicn,
bY: reason' of Lessee's speci.:.!.c ~ of \:.Se and/or ocC"Jpaclcn ot the c!e:ni..sed
pre'nises shall 'be paid for by Lessee at its 0,;1' cest ar.<i e.'q:lP..r.se. sl:C'.lld
, ',Les,see fail to pay e!ly s'.:ch C051:, Lessor:nay pty the sarr.e, a.'1d t.':e a.'rCI:..~ts
~us paid sr.ell. be F<lyaOle b-.r LP..5see as addit.:..~::a.l rem:. jJ.'1'f c~.ar.ges.
' '.' ~ -,~ ~I llJ\-" it"" -h . '......I ~ I I'
. :.r.provenr.a-n,-" ~l.oera_ons or .e ~...at...cr w ......."1 L...e CeiU.S~ p..enlses, =eq..:..ze:t
to: be r.a<:!~:,. b-f eny soverment or 9=V=er.tal a.;e:lC"[ or .L".str.:re:n:aE'::-{,
inc1'Jding any aucl:crity cr ccmilision ::01: ocCll:;ione:i b-f r<,cs~'s sp:ci.:ic ~?3
of use a.nd/or ccC"J::>at.!.on of the c!eni.sed ore:'J.sI~ shell be ca.id ::cr :;v lessor.
!.esse:: acree:s ce ..d.11 be :-e..c:::x;,ns!blc fo-:- cc::::Dli~"1ca o,t/it..1 -:"'~e =~1 ~ -~.Ie:i:.s
teCa..~c har:d.icao::-e:i access" -:0 all CQ."'Xi'O:l ar~!.S !..ii::Cse.:: '~"':ce:: sta::e c:'
federal =ecu.la1:io~ '.i\:.ch are ::c:: mec.!.::icaJ.ly recul::e<i as tlle ::es-.ut of
lessee' s cCC"+':~;CI c: ~e =reuises I" ...
" .... ...
(e) :Lessee s1:a11 at T..e$see's sole e.x:)2llse, and i.'l acco:t'..a!:ce '.;i~ all
applicable s-...ate, fe::!e..'C.l, a.,d 1=1 :-egdadol~, ?I'.:....':'~li' ::-En:;'Je a.o:c c!.!.sp:::se
of,all In''''i caJ. ane! e::v.: -o;::;:ent:clly r.a.ze..-cclls ',;I51:e f::-Co.t 1:::e leased ;:;:-e:-.d..ses.
,tessee- he....e!7[ agr~ to i.'lC!EmlL.'"y and save ha:-:rless Lesso:- :::crn er:i loss 0:-
, liability aris~g ":;:an t.lJe use, s;:crage, or di:;p::sal of such r.le:i!.ca.l and/or
, ent- ror.:r.e.'l~ly t.eza.-c!o-.:s ..'aSte.
8~.':~liance 'Aoith !c:....:
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,,' Lessee egrees to observe and ccr.ply '.;it.; all statutes, ort!ir.a::ces,
rules, orders, regulations, req-.1L"'ellentS and Inws nC'.. in efie-;:: or 'NiUch ITEf
be ,i!nacte:;l cfurir.q co::iliuaJ:ce of this lease or any rene'.'al. hereof by any
m.mici?J.l:, county, s"...ate or .fe::!eral aU1:horit'/ orOt:her public l:o::y or age.'lC'[
having jurisdiction over t.':e de:n:.sed premises or over any hlSir.esS Lessee
, " ccinduC"'..s upon the dE!1lised prenises, cmd Lessee shall indmnL."'y end save
, : hai:mless Lessor f:::c:m r.on-cCXl\?liance with tl:e IXlIIle. :\Ir"..her, Lessee sr.ell
: ' neitlier"cOrlduct nor C<ll;1Se !lor per:r.i.t to be conducted any nuisance L" upon, or
. ,alxlIIto:he,d=ised prenu.ses.
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," 9.;; Us~. of1Pi:en!ses:
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, ,:::' ""r.eSs~:shall,,use the deni.sed orcises fo): medical OII.:.ce use i!l:d for
, Otiil!r: p-.u:fOse. -., 'Ite prenises shall be \:.Sed and OCCllpied i., a saie, =e.."'ul
':: pi:'o;:>erll'~: imc!. no nuisance, ~e or oco-.:p.-n:ion which is la\c,;m !.;1 the
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FEB 19 '93 12:53
FR
(HPIHIL HEHLTH S"STEII
PA';E , 009
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insuranca treCe as ~_-a or especially ha::a.rt!ous shall 00 pe....:U.tted -:.:e::ei;l.
Lessee shallnqt cotciuct s:JY act!.vity which eit.~er shall r.cCe void or voiCable
any insur-cJlce on tl:e dtmised pr~ses. In the event that any of Less~'s
, act!.vities .silall callSe an increase 1.'1 Lessor's ir.surance pre1li.\;l'S, Lessee
shall be ,responsible for ar.d sWl pay as c-Cciitional rent the =mt of suca
~c::~e'!.:i preni\::\ at:rib'.ltable solely to Lessee's activities.
,\0,; ; Alteration - r.1=:
. : ", The Wtial alterations a...~ i:mrcve1':ents to the c:enise:l orer..!.ses sr.all
, be 'conscr'Jcted at Lessee's cost:. Lessee shall oive to Lessor the :::.&'t ot
, iii'st, refusal to prcvice labor and n-ate=ials :"i: a iOo.lt\:a11y agrceeble scc?/! of
'" .....ork ,cesired ::-1 Lessee =n t.~o serre t=s and cc::dit:.ions as c:rj b::r.a ::.ce
'offer'by any -:.'l!...-d :e-'7;'f" cont....-ac-.:or I\ilic!: "-esse.'! si:all desire to acc~,
Lessor shall :-.eVO scva:lty-two (72) l:=s after prcsem:aticn of such oiter ':0
acce:;t or =oi~ S\!c.i ri<i1t of ii::st: refusal, Lessee shall ..a."a :;0
alte::atioI:S b 0:: cOciitio::s or ir.Provetsr.ts to tl:e CE!l'.ise:i or!:.lises '~i':::cut:
tho crior "ItTit-;e:1 cc::sent: of the Lessor. . All i'Uch alte::at!.c::s c:.- .!..~rcve:\)A~CS
: ~e' by Lessee (e.':ce;::: r.ovcble o:iice i\:.r;-..1tur-:l and professio:1 ixu:es) shall
at' -~e ~Ion c" o\on r3~~0- ~-~ -Ion ~-=--y 0" TAnSC- a- ~\oe -~-I-...IC~
..... ""l"'-- ... ........ ......ww _, ~.....\.Jolr... \",,;.... ~..::- _ .... _...~ .. w '-'-. ...-.-.~......,
oi ':.~e'J:..ei!se. Should. !.<:ssor noti-"y Lessee !.., '''J:'iti;:g 5':"","1' (60) Cays prior ':0
tee emiraticn of t.'1e ini~e.l te....-;J or any exte..--:.sicn hereof ti"..e.t !.esso::' coes
not csSire, C!:'j or all alteratiel'.s or :.q::rcvew::lts il'.s'Uuled by !I>..ssee, Lessee
,will rerove,such alte.."'!ll:ie:-.s or i:::;?rovtr.le.'ll:s l'..J1: cesired by !..esseI' er.d rer<,('"
ar:y Cl:m:!~ caused '::y S"~ch re.-rov-al. In ~e eve:.'lt :~sror :e.ils to give tr.e
afcresaid co-.lce to I'E!.'iC';C said i:;;:I'overr,e::~ a:: leas1: sb:t-j (60) Ca.::_ pr:.o:: ':0
t.':e e:.;oLooatlon cf t..':a ;:e::-.:, then Lessee sr.all ::01: be resco:".si!:lle :or :'~e
rCTO"r-ai 'of said !;c:C"'Ie:t..:.....r.ts or t..~e e.~r.se t..~,~reof. I:t !r-ssor CCIr:)l:.es ~~t:l
the aforesaid ilotice recui::e:ncnts, !.ess~ sr.all also reoair er.v c.c:r.:ace caused
to: t..':e denise:i prc:n!.ses -171 t.~e ;..ICt-..l1atien er :eroval oi alte..:".ador.s,
cCc!itions or i:;prove:ents by or for !J>..ssee, er.d restore pre:ti.ses to c;e::e....-al
office condition. Lessee sball r:eit..~e: co nor permit nor c.aC5e 'CO be co::e ~..'
.. act or .t:.bl.J:g '.ilicll sr.all c::eat:e any mecl'Jm!c's lien or clai.'1's for Uen a'1"'l-"::
", the cenise:i Fenises or ar:y part thereof. Les:see, !.esSe9'S successor;; e..."Ci
assigns, c'cllt::eC"..cr:;, subcCllttact.Ors, lab::>rers, :rat aria! = er.d all persor.s
wiiansoeVeJ:' I:le=eby '.a.ives, releases, discla.ir.:s imy cmd all c1ai;rs and/or for
tl)efurnislligs or eoi:1g of any rr.CJ.t:ter or thir.9 ;:er:nitted or =equL"Cd 'r:1 l!...-Y
. , laW" ordir.ance or reg'Jlation (1)0''' or hereafter ill ferce) or by tho tems of .
this !..ease or otl:e.....'ise (cone wit.'l or '.1thout t.!:o 11.'0'11I1 or con.se.~ of the
Lessor) . !.essee' !:areby agrees to il:cie.mi.."'y and save r.m:;;ll.ess Lessor ecairsc
rmy, and all 6',jell lie::.s and claims and all COst:i, expenses, er.d attoI'::eY's fees
iil connection therel.i1:.'l. If any such liens shnll dt'"..ach, Lessee, UD:ln
: rccucst", J.mne:iiately shall give such scc.:rity il!l 01'..:>11 be ~oablQ
, i;atl.,SfaciorY to Lessor in order to hold Lessor safe and he...,uess agaL'lSt: iUl'j
" siich claifJ, or lien cmd all eemage5, costs, at:orncy's fees and Olq?er.ses, to
, ,:ii1c,l~ce a:IY :j~'rC or c.ecre9 whic!l :oUght l:e re:1ciered against Lessor, the
:: dEmised' ~es or Lessor's int:erest: in the dJ!mise:i orenises on ecc::ur.t cf
, . Suc.'l; lien: or, clai.'1l. .
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P,I)9
FEB IS 'S3 12:54
FR'" ,CAPIHlL HE''lLTH S"STEII
P"GE , 0 I 0
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, , " Fkal egrcerent beh'ee.'1. the parties r~'1:lir.g the sCC?C of 'oII:lr~
"Meh rr'!y, be done by Lessor as ~er c!cscrllied above shall co05"..J.tute a
CoOdit!on precedent to this lEi!Se being binding \."fOn the part.!,es hereto. !n
the 'eve!lt the p;rtie.s shall fail to ~e such scope of '.-ork and
ca~:~saticn r.:.erefor Id.illn 15 Cays of execut.ion hereof, this agreet-ent shall
, be cieir..ed null' ~d void and neit.':er l2ttf shall have any fur-J:er oblio;;at..!.on to
," ,tJ:e Ot.':e.l: hereo.mc!er.
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'l?,'~'~. ,ScOOn4~.a~~cn:
;, ,',' teSSIH! asrees, ::.at !..:l the ev=nt t1:e rror:o;;a~ I::'.ce:: any r.ono;;ac;e '.'h.!.ch
.' Lessor has or rrey give G~ the denlse:i prenises sraall so require, to
suixl..:; ""te tl'.e, lieu and pdorit"f of this teas'~ in tavor of such r.ongac;e ar.d
to' exec-lte eny i::st=:.leIl1:s '.iU.eh Lessor or such POrtc;;a<;;ce lray Ceeil r.ecesse....-y
, arid/or ~..up_iate to acc~,i?llsh that e::d, ?rovicied that any such
sul:oi:ciilliltion sr.all D:cl\:ce a non-distur'-..a:lce l:lt'OVision reca..-d.i.r.o Lessee's
,illte..rest i.:l t.':e ::remises L'1. foo acce';,teble to" LesslH!, which acc~..a;lee shall
not. u.-U:ea5onably 00 \tri~1..~eld.
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..,":.. LessOr, or Lessor's representatives, wit.'l prior '.T.!.':':e.'1 ..odce to LesSIH!
rray; enter i:p:ln e..'1d ~-r:ec:. !-;;;.t ce:r.ised pre:uisllS and every ;:>art- tl:e.."'COf or
" ~or:n ra~t:.i.ne. rraiI:ter.a.1ce theret:o Curi:~g ..or:~al l:;.lsL,ess hours, LeSSOt"
, shall' also have autr.orit".f to enter u;:on the demised prenises at aJrf ti-w for
, tl)l.l)!!.L."?Ose of effec-...ir.g mv>...::ge::cy refcl..--s.
':',1,. .
'.I.'l'..,...~.;_lJ.._.:....'D~., ':l.' "
.' tf.t' "t.i~."'!'~~- CUll.l'~aL...;.ons:--;,
~:T?ft:~ ,:: : . I: ".' ~': ' '.
,../,:~::'~)ri,'ad:iitionk,the several eovcr.ancs conta.i.:led in ~his Leasc, !.t is
6i?eCiflca11y; ~ that: Lessor r:;;;y :Emu tme 1:0 time estal:llish rea...conable
" n1leS,(anc:reguleticms ~....aini..,g to tl:e denl.ned preuises end Lessee agrees
. to, ilC'l:'ound by'sane. F;ny such r'Jles and regu.1lltions shall be consistent with
: ,',the' t='.:~f tliis Lease and shall deal only with t.ie oce..-ction of the building
.. ',' .Ul.,U1li.ch. the 'dE!!1lised "remises are 10CLlted. .
, :",1:' "',;,:. t'" ."
, ,:' ,': lS. ::\.: DarraCe '/ ~tr'Jc:---ion er.d rrsurance:
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, '" ,,:..: (a)',,: If the denised pr=ises shall be pert.ially dmMgecI by fll'c, !rt.Ot;;l
".. Qr' other ce.sualt"it, so as to render SCIre p:lI't!.ally untenantable, t.'len Lessor
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nl13233
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FED 19 '93 12'5~
FF "-' CHPITI~L HEALTH S~'STEII
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shail1'4....,~tly proceed to :-..ake ::eo;a.irs '.'hich shall be ccr.pleted ,,;,"Hn "'''ety
(90) c..-ys. During the bterim !.e;scc's re:'ll: shall be ebat:e::\ ~r"'...!.onacely
as to.the p:lt"'...!.Oll, Or' eltte:lt of the c!eui.scd prlnises rc.~.ce:'ed '.l.'1tenantable.
In the' event rep:ili:'s car.r.ot be ccr;pleted within ninecy (g 0) Cays !.es S~ r.ey at
its ,O:*ioll, tet:ll.L"KIte this lease without ;;er.a1ty therefo::- by p::cvid.ir.g '.-ritte.n
notice to'LesseI:' of lr.:ssee's desi:e to ter:uinate. Such r.otice r.n.:.s-.: be given
by Lessee no later tJ:an five (5) Cays after' notice by LesSOr' of his i::ebllity
to rrake the ne<:essary repslxs '..itJlln tllc ni.'lct-f (90) day li'i\itacioll,
, ; ',: (b)" If ce-nised prm-.ises sWl be so C5;0;lge:i by fire, storn. or ct.':er
"~alty so ell to ::c::ee:: S<!!re ...holly unter.2J1table, t..ien !.esse:: shall hava tJ~e
u?i..!.cn' up:ln...:;::itte:l r.otice fiftee.'l (15) days f::crn date of said ces.:a1ty to
re!i.:ild' or no:: ::ebu.i!d t!:e ce:nised crm.!.scs. ::n t!:e evcm: !.!S50I:' cete.......i::es
, to rci:rJild' Lessor ei'.all ul......U.I~lv orOc~ to rebuild or rCI:air \:be em-lsed
'prEmises which rebJ.ildir.g or. re?'lring si'.all pn cCl1!?letecf '.1 t..'ilil OI:e n\:r.dl:ed
't'h-ellt'1 (120) days f:'crn t.':e Cete of the :i:e or otl,er casualty, P.u:i:.g t..':e
interi"il. Lessee' 5 ::ent si'.all be ~ted. ?::ovided :urc..ier :r.ec in :'1e ever.t
LessOI:' shall c:ete....,t.i::e ;:c;: to rebilld :.ie oren:.ses t..'Us lease sWl te..?i:.etc
'.effectiv~' wit.i. ~':e c.a:e of t:.e i!..re or ct.'6e::- CllS'~alt:'"/.
" ' (e) !..essor si'.all :....sure t:~e croU.scd pre-ilies egair..sc phrsical Ca::'ege l;y
/, r~.on of -FIre, stot:: or ot.':er =::alty, ir.cl::cling (!)(tended ccve::age. Said
'cave....-agc sr.all be to t..':e :full val\:e of d:e deni.sed premises, !.!Icl\:c!ir.g t.:.e
initial il~i:uve:le..'lts e.cd alter-...e.t.!.ons refer::ed to i.'1 parao;re:pn 10 c1:ove.
(d) , !.essee sl:all ir.sure t..:e c:euiscd prel\ises agair.sc general ?!:bEe
llebl.!!,ty ..'itl:. cove..'<\';e :0:: l::o:i.Ei' .L'ljU::-J at lEast thr~ hunc!=ed t..':C\:sa.-.ci
($300,000,00) collars per L-~v~~~a1 ar~ one r.U~lion (51,000,000,00) Dollars
per illcldell1: and for ?rO?e::-;:y c.sr.age at least t~.'CI:tj'-five t.:.O'.:sa.~d
(525,000.00) collars, Each p3I't'j shall = u;e ct.':er as ~tic;.al ir..su.::ed
on c.ny such p:llic:.es a::d shall =.:.......ush aI'.,::al certiiicates of i::s1:...-ance 'to -:he
other ti ::e:mes;:ed.
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" ,( e) !..essor sr.all il:sure \:be c=n areas, (of ~he b'illdir.q L, ..'hie:: the
c!EqdSed preulses 1i.."'C locai:cd, as ',-ell as the e.'tterior side...al.Ic.s, driV'e'IIaYS,
, , I:ci:'JtiJlg ,arce.s erA tl:e li.\e, agai::sc ger.c::al p.:blic liability),
: :16':":' Direct6I"\1' a.'ld, SiCIJ'1ce:
, ':~: ':, ; :~sqr, Wlllricle space available on the 1nte::ior building rll-ecto::y erd
, =erior, s~, csubllshed ~cn: t.!la c:l.!:l!!.sed otemises for Lesscc to indicat:e
': ibl (oec.iOaney of the c!e:nised orcm!..ses. '!he iil.i t.!.al sicr.ece shall be as
, follC'1o~:, InferioI:' directory: 3 lilles, ~..crior si<:M';e' -t::~e f~ to
:be,~es~gc~ a.nd,~ by mutual egreenent of tbe ~es(h~'"llto. f..'
, '.,' , :' '. 3~J:"(i:fsN: liY ~
" ,..,17.':,::r.ate!'<rme!lt. foi' :/ ~i"'"
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': ,..:.' ';:,i:ii :tbe'~ent 'ar:y ;:e.,.....al payr.:e::t is received by Lessor r.ore t.'lan thir::v
," (30)' ,~, aftartbe Cue Ca1:e tl:ere-:>f, Lessco shall i?3Y to !.essor a lato
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FEB 19 '93 12155
FF~,ICAPITAL HEALTH SI'STEIl
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c.~ in an' ~t equal to five (5) ~ ee.'1t of the monthly rental ~t
'due'to carpensate Lessor for, the eos--..s of rent collection the.--eof,
Ie: tiafault ~ Dist-~t:
'!n' ~e 'of the llon-p!y:rent or rent herei!l reserved ',dthin thL.-t:'{ PO)
&.-ys i:au the ti!tc or t:i!tles mentioned for paYilIe.'lt of Sa.'"'l.'e, or in cese tl:e
demised preiui.Se9 be vacated or be deserted by Lessee, Lessor, .!.:l a::y cese rey
enter', t..'lc' w.e by itself, or Lessor's authorized agent, by 'l~ process
, therefor, 'lind thereupon rray di.s'"~"'ain for ell rent clue for the rer.aL.--cer of t:.e
, 't=,: relet the said prenises for any une;.;pired por"'..:..on of the t=, receive
rent., thereior." Lessee shall be llcble for sue!:. distress for said ':'ellt ar.d
':, r;oS"...si tcget!:e'i:' wit.'l reasor.able attorr.ey's fC!:s, and Lessee he::~ ',;aives the
j;Xciefit of:alllal.'S, r.c.c!e, or to be rrace, exe1;?t.L'lg property f= levy ar.d
Gale, either on such dist::ess, or a."rf jucgoent obte.i.!1ed for re::1:, or fcr
~s r~ed for arry breach of this contra~ on l:.ie part 0: !.essee.
,i9., r:>=fault, _: C.er.e~l:
" ta:{>in :the eVent of arry of the :ollcwirlg occJ.rrences of "er.::o::cCi!ble
cefa'J.!t"; Lessor shall be entit~ed to ;;:utS"Je (I::e or more of tl;e re:19:iies se::
foi"::.i in =eciraDh laB hereof:
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, .: '(1) Non payment of :ent for a pe::.!.cd of thL""ty PO) c:'.!ys
, follc-.'in~rthe Cue date. Provide:! t.'lat Lessor sWl have firs;: cel..!.ve:ed ';0
, 'Lessee e. "''r.!.tte:1 notice of such ncn-~ent: at: least: 20 Cays l:ciore such r.O:l-
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. ' , . ',', (2) 3reaeh of arry of the ot:J::er a:\'CI1aI1ts of t.iis Lease or :wcre
,to' COlplY: with any IUles or rcgJlatior.s propedy prcm.Llgated cherC1...r'er,
crcv:.c!ed t..'lat IP..ssors shall have c:iven IP...ssee "Titte.'l r.o'"..:..ce of such br~ch
, ,am a period of tl1irty (30) Cays ';'ithin ",ilich to cure smo.e,
: ",',.... , " ',(3) The fi.l.iog of a petition in ban.1c:uptcy, whether ...oll:nta:::y or
.' ",invo1Ulltary;' agair.st. Lessee or Lessee's adjud5.cation as l:ankn:pt. or bsolvent
"in' ", '.
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:: :,: c" ," :,:.(4),..,'rhe Bf!?Oint::Dent of a receival: or t.."UStee in b:mJc;-.:ptC'f for
:..Lessee.,,~ .~: :".
, :,;'~ ,:. ' , <<(5; The l1'aJdng of e.q assi.J?le.'lt by I.e!lsee for the be.'1efit of
': criSditors;,i" :.-
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.. ':' .. ,(b)':;LesGOr'S re1ledies in the eve.'lt of IUl "enforce.eble cefault" shall be
, as"follci.i;:',' '.. " '
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~:: <' '....: r , ': ,c:':: tl!) :LeSsee het'1!by ei!?O'.-eI'S &ly P:"othonotary of Attorn~f any
" ' CC'~ of'Record to e.wear for Lessee in any and all QCC.!.cns whlc!1 ':Oirf be
,:~?,to~~'the'rent: due for the rcm:W:cer of t.'le tern; ars:.{or to si=
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FEB 19 '93 IZ:56
FR~~ CAPITRL HEALTH SVSTEH
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for LessCo an agr~t for entering in arry cCl1p3tent court an Mlc:e.blo il.ct!.cn
or }I.ctioM for the reccvery of such rent, a'ld ill said suits or i:l said
il.rideable }.ction or .;ct.!.01lS to Confess JuCcne.'ll', eca.lnst Lessee for the rer.t
due; and for the ::eel: for the ::e;-.a.ll:der of thel te..'7.1, and for interes1: ar.d
Costs" to;;cj:..ier '.'it!l reesonable attor::ey's f~:s; and Lessee hereb'f eJ<;lre5sly
,:' waives and =eleases all cr::ors and defee-..s h ent:eri.."1g s\:ch ju~nt: and
fui'-..her wai.veS and =clea.ses all relief frCIll ar,y and all appraiserent, S'"...sy or
e;~.:.~Lion la-.-s', 00,( h force or !:ereafter to be ?"Ssed, aIld also ..'ll.!....es 'wic
, right of inq:.l!.sition cn arry real esu.te \:!let nay i::e levied upon to collect
, such rant;a1.
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,', (2) i'.rrt Attorney of any Court of Record of the CO'J.nt"1 of
, : CUltberlW ~.:;y, at \:!le request of Lessor, and, as 1:1:0 egem:. or 1:I:e attc~ey of
, LesGee, si91 an a<;r=nt for entry i.."1 a caT9E'tent court all ;;n.l.cable ,~,ction 0::
, E~ect:r.ent and confess j\:C<;r.ent in ejec=.-.e."1t tl'.ercon for the s.aid ?=e:U.ses to
, . any term, p:lSt or preseJ::t, agair.st lessee, and all pc:-sor.s clai'iling ~~cr
" I.es,ses" wi~O'~:: S"...ey of execution, or ~, ar.n, fer 50 CoL~g, t.~.is shall be
, a"sufficie:rtt '.a:~c.nt; and there\:::cn, a Wric of ?ossession or such c::.';er '.Tit
'::as rray:u:en.::e ~~_w~....:.ate [jay L=trr.ed.iately issue en said ju~,t. ell errors
, aod:de!ect:.S,..:.::, em:er.:.::g such ac-..ion ar.d j\:c<;;:rr.nt, or i.1 ti:e issui:lg ot such
....:rit;: or, i., a.IlY pro:eerL,9S t!:ereon, or co~ce:'il.L~g t..~e same, bei::g ~e:cb-l
'expressly '.c.ive:l by !,essee, and by any :;e....on or persons whatsoever claiciJ:g
th.r'cI:gh, 'by: or under !.essee, om:! a ccpy of this !.ease, with any ll'CIiiiicaticllS
thereof" beir.g f;' e:l irI t!:c said Action, i-:: scall not be necesser'1 to file t..';e
odgi.r.al 'as a War:c.r.t of r.ttomey, any la''' or ::lule of Court to to';e ccn=e...ry
no~ths'-...acii!:g ,
,': (3) At ':.te o;t.:icn of !.esso::, t.iis ~c-'se si:all dete.."To'.i.::e ~d
becare r.ull:~ void, ar.d Lessor :ray re-enter to:?:"', and :-e;:csscss, t.'ie r.ereill
.. de:ni.se:l premises.
,;
:' , ", (c) The =cise of ;my =~ or ~i.es provided herc.i.1, O't !,essot",
:..slia11 nor- precl\:de Lessor's e:,<ercising, conC'oll:re:ltly or successively, one 0:'
, ~ie: other rE:.Jedies provided he....-ei.'1, 0:' auti:or:..:e:i by 1a-",
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, ,2Q,::'Acceotance of l'otice:
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, , '::. :tess,ee hereby accepts no"..ice to quit, rEnove ==om, aru:l surrender up;m
:possession;of,; ,the said deui..sed premises to Lessor, Lessor's heL.., exec'Jtor,
~..rat:or,' successors and/or essisns at the expiration of the tern hereof.
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21."; c6ndemi1ation I
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, , ";',,..;,10' the "eVei:n; 'any pot"tion of tIle p::ope..rty in "'mch ti:e den.l.sed pren.l.ses
:.. ,.l.S"sil:lU1teshall; Clring t.ie t= hereof, be takc.'1 for any public or cuasi.-
, pUblic ,;use \Uld~ ;my s-..atute or by right of erirlcnt danain, or bv Pr:'Vate
.. ~c iidicu thereof by a l=I=Y ~.rered '"ith euinenc c:la1aiI1 to an e:d:e:l'l:'
"thll.t. sUbst:ail.tiiIlly i.~ the llSefu~ess of the ceni.sed premises fer t!:e
',:'~ses .for ",11ichthe same are herebY leased, then either oart:V shall have
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12: 131
2316233
P.13
FED 19 '93 12:57
FR'''' CAPITi'tL HEALTH SVSTEII
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the "ootiOI1 to tc.r;niJ:.ate this Lc>ase e..9 of the cate '.'hen UasSC9 is reouired to
yield' FOsSe5sion. r.z this Lei!se or aIr[ re::c-.-al hereof is t",'",;r...tcd ~use
of cotider.::at.i.on, ar.d Lessee, as a consequence t.!:e:::eof, is re:;:ui=ed to rerove
its ~I =ran tl:e demised premises, !.e$SC9 shall have ti:e risht to see.~
rc.iiti7,Jrs~t i..""C:l\ the condeming party for t.~e cost of such rerova.l. Lessee
hereby assigns to Lessor all other right, title ar.d inte:::est in any claJ."ll it
, nOw has or ...-ill in t. ~e ::-Jture have a<;;ai:lst the Cauronweal tll of ?e:msy 1 vania,
,tIjc; united States of ;>"';)'>...dca, any :tlll1icipll scb::iivisiol1, gcve=tal !xx:y
, ,ardlor eiry ot:l:er pa..-';y tr.p:;'.-ered ',dth eni.r.e.'1t ea-uain or tile :ight of private
.. ' plirc.".e.se in lie'.1 ti:e:::eof, and arising out of err[ :--'lst, prese:l1: o!:' :ut\:J:'c
, e:iercise of t.!:e poo.-er of eninent daw.in (or priva1:e purc:ase in l!.eu the:::eof)
to 'condem:, ta.l:e or injure all or any portion of the demised prenises or errl
inprovme.'l1: thereon.
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, , ,', : ,'l-t1:e::ev-er n.,....!.ce shall be given under thi.s Agreer.ent, it shall i:e deered
to ,i:e' cat;?leted '.hen ...tiled by ce..--tiiied ::-ail, postage pre;:cid 1:0 t.!:e ctt& at
, the i:d:b:ess herein ab:;ve set forch or at such C"'"1,..,j'ier eCC=css of 'Ni"..!.c." each
~I iiay'here~"I5..~e::: ::.oti...:y the othe:: in ....-ritJ.::g.
, 23' ,\.'~cs'
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, " ; " Any' ji~gs p::ececi:....lg ti:e tc.':t of ti:e !;eve:al J;&Ugre;:i:s a::d
5~agrc:pbs hereof are ir.serted solely fo:: the convenielice of ::eference ar.d
shall nee ~...:.t',ltc a ~""t of t!lis lease not shall they aiff:':'.: i1:.5 r.ea:ili:q,
cons-..ruc-...:.on ct" ef::e<:::.
24; z.'.o::lli:.caclon:
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" , ,:" This Leese r.EY :lee l:e rJ:X!!..:fied, disc:.ar\;eQ or tem.i.r.ated orally 0:: i.,
arry other =.e.r t!:.an ;;y -.ritte:l agreere.'l1: si\iilcd 17, bet., ~....!.es l:C!'e1:0 or
t:l:~ ~"':'''''l3 5\:ct:e5sors and assi9".5.
25 ';' rial ver' of !lef<!,.l ts :
" :' j::":: (a)',:vo celey or emission by elt.':e.r p.lli:y hereto to exe:::cise my :r:i<;ht
.. " ,:Oi;..p:;..;.oer i!c=,i"'g \:p:;n tcm-cCilpllance or default by either party -.dth rC5peCt
to:anyoftilc,tentS, covenants, or provisions hereof shall L~ aIr{ such
..' ': rigm;or,p:,..er or be cons1:.."'Uec1'to be a waiver the..'"eOf. :Nt!...ry such ric;irt: and
: ":~:ire!y, be exercised at any time during the continuance of such c!efault. A
" ''''aiv-e.r by, eiti:er of t.~e p3rtlcs he.rc"..o of aIr[ of the covenants arod aUl.=nen1:.5
to: be Perfoma:1 by, the other shall not. be COIl!rt:...-ued to be a 'Mliver of any
, 6Uc~~ },ro"ch thereof or of the !:>reach of ar.y other covenancs or agree=c
': ,hereiJi conte.incd. '
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" :... ;, :::(b):<~see, s~l.l not treat aIr[ failure by Lessor to perf= my Cut"f cr
',obll9ation= this Lease as a breach of thl! Lease nor take aIr[ action
',;th~ unless, Lessor fails to C'olro such ceialllt within a oedod of t!l.irty
(30): day:; after receipt; of written notice inn Lessee setting fort:1 said
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FEB-19-93 FRI
2318233
12:132
P. 14
FEB 19 '93 12.58
F" C(.,PIH,L I1Er..LTH SYSTEI"
PAGE,Ol5
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,alliigOO. fe..Uure. Provided, ho.=, tha1: should there be a failure to su~ly
,heat,. air c;-onditicniJ:g, olectricity and/or "uter and seller throJgh no fault of
Lessor, such fallu..--e shall not constitute a bl:each of this Lease 1:0;: give rise
'1:;0 Mr'f rights i!1 I.ess~.~ced further thllt in the event Lessor shall fail
to,paWtaxes';",i,n..c:u=ce or utilities in a timoly manner, !.ess~ shall have the
ricilt ~o,iiii\(e - Such payroc.'Tts on beJ..a1f of !.esSClr in '.'h.ich event Less~ may use
su~h.p-"j'Ill"..Irt:s;as offsets to I.ess~'s rent obEc;ations hereu;:ee='.
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26i: ' Pe~~l~-,;nia ~~:
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, : ' :' TIi.i.s' i:easa shall be constrJed accortiil:g to, be subject: to, a::d be
~~Ed ,b;/ the 1",,'S of ?er.::sylvania.
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", ~. ,I., T'tu.:s L".S""-..:-:..e.nt ccr.U!.i.!ls ~Q e..;t!.=e acrE~e"1't bet:"""~:l t..":e -~-c!.es ::t::-e=o
. f a..."'ld. sr.alll:e b;".r.:-c ~'"'OOn ~e =-arties hereto, tJ~eir heirs, scccessors and
assl9'.5, ' " . - -
28:' Re.'le-~al:
" ,,', :,' A l:olril"g cver by the Less~ l;eyond the te.'To1 of this ~e or ~
' eicteu:ion I:ere::lf shall at !.essor's ootion be ceet'ed a rer.e.al of the !.ease on
j". . '. -
d. ::cnth to rronth te..7.1 basis, '..i:ell said rcnC'.al beir.g u.-:der ar.d subject to ell
previsions: Cor:ta.l.::e:i in this Lease, and shall be at the opt.!.on of t.':e Lessor.
, Lessee shall' be d~ to have i:eld over ur.cer this oarec:raoh unless it shall
' h,.\Ie noiliicd 'ecsor in writ..!..::g of its intention to s=;;r.c:~ ,",'1e pra1l!.ses at
t.l:e er.cl of: t.l:e te.::u I:ereof, or at the eed of aoy subseque.'ll: term, ni:ety (90)
, clays prier ::0 t.l:e c..-:pL"'iltion of the te..~ hereof, or of ar.y subs~e!l~ te..7.1.
29.;. Ootion'to ?Jrcr..ase:
. ;' .,'
,:" ,,':.'" Lessee'sliall have 1:.':e aot!.O::l to :;.:rchase ell that cer"~ln t..'C.ct of laIld
',' ,~er '.cit:h i;.p:wenents thereon sit:i:ate at 4076 V..a.rket Street, Cc:,~ iilll of
!>ilich the leased crenises is a Part uoon the follcwing t:em.s and co::ditions:
"::', .. .. ....
, .
',',', \:', 'A-, The op"...:.on shall be exercised by delivering not.!.ce of exercise
" tfler~ to' t.essor no later tl:an A1.:c;ust 1, 1994.
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0"
"., " ,,:,B'.,' T1ic oPuoo/!;6J.c price shell be, the ave.."'ilge of \:'.00 appraisals, one
. each, to be proviCed by Ce.."1:.ified Ccmne..'"Cial .a.p;raisers GelBCl:ed by Lessor aIld
, ,Lessee: ?rovi.ded" he-1leVeI', that in the event said orice dete..'"!ni.oatioo shall
be le;is'~,$1,400,OOO.oo, Le<lsor sball have ~e right to ter.ul.oote the said
" 'pUrp.':ase opt.ica.. In the event the purt:hase o;g--..ion is so te..'T.ll.r1ated, the
r'etainir.g,l~e t=z:S herein shall remain ill full force and effect.
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'::,,", ::t,.>s'e'W~t sball be =pleted wit.lili1120 days of notice to ~--clse
":',~~:~;lln;,,.!<:;'~ scttle:ll"..nt each part"/ sl:all sh.~ equally in 8."lY real. estate
..' '" ttansfe:;-, tiOOl:J, and all rc.:1l. estate taxes, rCll1:.'1 and oreo:j,d utilltie5 and
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1l10MA5 L \\U;O[J\
ow: ,.. WEID~'ER
sm'L"i C. \llllDS
nfEJlF.SA 1.. SHADE '-'1X"
b"'O IL OETZ
SJUHE."\ J, DWRAlilS
(i11VJlO Eo. RJOWlDS
Sll:\'L~ R. ",UJA,MS
nlo!o'.AS ^ H\1110S
, WIX, WENGER & WEIDNER
, ATrORNEYS AT LAW
50s NORTII SECONO S1l\EET
rOST OFFICE DOX B-Il
IlARRISDURO, rENNS'1.\'ANIA 1710S.oS-ll
{11~L""I"
mn:or1EA (11'J l.\M::C
"" rJUNCE SIllttT
tWUUSOlJRO. PA 11'1(1').>099
(7J1J~:-6.US
1"E1LOJrlER ('111) f.$l-6m
PlLASE IW'L Y TO
~lU'CESIllttTOmCE( )
" A1I4 MfClbct Iw'.&U.Im\lHW Be
February 23, 1993
steve Fishman, CEO
Carlisle productions
1000 Bryn Mawr Road
Carlisle, PA 17013-1588
.. ,
RE: Roger Petrone, Landlord -
Harrisburg Practice
Management, Inc., ,,_Tenant
(Lease)
Dear steve:
As promised, I am writing this letter to confirm the
understandings which were reached at our meeting on February 22, 1993
(with Roger Petrone and Phil Guarneschelli) concerning the following
matters related to the above-referenced lease:
-,
1. Snow Removal. While we all hope that the snow this
winter is not establishing a precedent for future years, I believe we
have now reached and agreed upon a snow removal policy (what is
commercially reasonable, given the nature or the Tenant's business),
namely, that the snow will be removed by the landlord's contractors
before the tenant opens for business (8:00 a.m.). Based upon the
phone calls made by Roger, we expect that having the sidewalks cleaned
(which was the major problem) will cost 'an additional $10~00 per
visit, which Roger indicated he was willing to pay to resolve the
,.. controversy."-"-'-" ' "..__. ,- '--' ... ,-....-,..--.."-' ......-. ..,.'-
Although we have agreed to meet. again to discuss other
matters, hereinafter referenced, it is my und~rstanding that the snow
issue has been resolved as outlined above,. w~ich is 'satisfactory to
all parties. .
2. Liahtina. Phil Guarneschelli and Roger Petrone had
discussions concerning the adequacy of exterior lighting. Some bulbs
were out, and were replaced. A question exists as to whether certain
of the lighting which was originally installed by the landlord was
interfered with or disconnected when the tenant installed some new
exterior lighting on the premises, which it deemed necessary to
protect its employees and patients. Roger agreed to discuss the
situation with his electrician, and if necessary, have his electrician
EXIIIBIT C
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, WIX, WENGER & WEIDNER
steve Fishman, CEO
Page 2
February 23, 1993
inspect the connections, in order 'to determin~ the circumstances.
Phil Guarneschelli agreed to have one or more timers, as necessary,
installed on the exterior lights which his electrician connected, so
that the lights'would automatically go off at 9:30 a.m. The timers
are an interim solution, and are without prejudice to any claims for
breach of the lease or other damages available to either party.
Phil and I will meet with Roger, after the snow has melted,
after 'dark, at a mutually convenient time, in order to inspect the
lighting situation from different points in the parking lot to
determine the extent, if'any, that additional ,lights are necessary for
the tenant's evening hours. ' .' ,
3. Parkinq. The tenant understood it was to have the
unrestricted use to 75 parking' spaces. The landlorc advises that he
only' intelidedthe!' tenant to have .thefront' 55 'spaces available. " Roger
agreed to review with the adjoining landowner the possibility of
using, on a permanent basis, some of the existing spaces on that
landowner'S property. At the same time, he will explore the
possibility of extending the lower level parking onto the adjoining
landowner's property. We targeted a meeting next week to discuss the
results of his efforts, to see if some amicable resolution of this
controversy is possible. In the meantime, Roger agreed that at least
8 of the tenant's personnel could park in the rear parking lot. They
will have access to the stairway and, if he makes available keys to
the elevator, Phil Guarneschelli has committed to return all such keys
to Roger, if the ultimate solution does not involve the tenant
utilizing those rear parking spaces. There' is to be no charge to the
tenant for the temporary use of those spaces.
This interim solution is without prejudice to either party's
rights under the lease and related documents; in the event a
permanent, amicable solution is not reached.
...___.H , .L""'Hent":-'Roger"liidlcaf<id 'he Iiil:d"obse'rved"op'eh-windbws" in""
the waiting room of the Camp Hill Family.practice at the same time
that the thermostat was set at 800, indicat~ng a possible imbalance in
the HVAC distribution system. Phil agreed to'telephone the Jackson
company, which installed the system, to have the system inspected and
balanced. The temperature in the examining room is required, by law,
to be,740. The tenant will caution its employees about the excess
temperature readings and instruct them to work with the heating ,
contractor to balance the system, rather than adjusting the thermostat
and,attempting to balance it themselves by opening the windows.
Despite the location of the thermostat in a locked closet (which is
locked because of materials ,stored there), the-omployees will be
instructed to provide reasonable access to Roger, in the presence of
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"\VIX WENGER & WEIDNER '.
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steve Fishman, CEO
Page 3
February 23, 1993
the tenant's employees,' for purposes of inspecting the thermostat'
setting.'
This letter is not intended to assign blame or
responsibility for asserted violations of the lease by either the
landlord or the tenant, but simply to resolve those issues, where
indicated, or to set forth a course of conduct ultimately designed to
,resolve those issues~ all in an effort to amicably resolve the
differences. '
" I'f your understanding as 'to what, was agreed is different,
please telephone me. .. ,
Sincerely ,yours,
WIX, WENGER&'WEIDN'ER
;./,
By: '(Vi?:.-l\-.
Dean A.: Weidner
Ilml
CC: Mr. Philip W. Guarneschelli
christopher P. Markley, Esquire
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(,PR
,'911 8: 1:3
TilE LAIRD HOUSE
OFFICE I,EASE
4076 Markot street
Camp Hill, pcnncylvania, 17101
PAGE.paz
(C(Q)[p1{
'I'hls i,'ease made this
.....
;j..'l- dny of Jil.nuary, 1994, by and between
Roger C. potrono
3920 I1nrket St,
Camp Hill, pennsylvania, 17011
(herein call~"L<3SSor")
AND
Harrisburg Nedlcnl ~~anagement, Inc,
a pennsylvania corporation with offices at
157 Paxton street
Harrisburg, Pennsylvania 17101
(herein called "LeSsee")
IHTNESSETH:
In consideration of,and l)nder and subject to,
Condition, and', consideration Il'~reln, rec:ited,
lntimdlnq to be le']n11y bounded hereby, agree as
the mutual covenants,
Lessor and Lessee,
l:ollows:
1. Leanee- PrGfi'lls/?:.-2.:
, Lessor herehy 1et5 and demises \;0 Le5see, who hereby leases from
Lessor that portion of the prl~mises situate nt 407fi Market Street, Camp
Hill, Cumber1nnd County, FA located on the first floor of the buildlnq
contnininq 1,'155 square feet and is more ful.1y shol'll1 on the slcetch plan
attached'hereto as gxhibit A hereof, Lessne shall also have the non-
exclusive ri']ht to the use of all c;onunon areas including hallways,
walkways and parlcinq llreaG on an "as nvailable" bnsis,
2. Term: '
-,
''&Ifsse'e, shall hayo and hold the demised premises for an initial term
'of' ~ '..Y.lla~s and t~ months, said term commencing "prill, 1994 and
e'nding ~':'ll, 1998, Provided that Lossoo shnll have the option,
unless Le'GSeO shall then be in default hereunder, to extend this lease
for throa (3) furthor five (5) year llxtensions in accordance with the
terms furthor provided in this lease. The notice of option to exercise
such extensions shall be given by Lossee to Lessor no lator than six (6)
months prior to' the expiraticn of the then current lease term. Lessee
shall be ..iven 'occupancy of deminod premises no later than January llli.,Jl,
1994, for the solo purpose of installing Lllssoe's improvements.
..!..(i->:;CYP $//tt" ~,r ~$~'/4(C.-r ~CA. f'1ll; ItV"" J.'I(I'~ -n90(.:"f I"""h"f~,u.:l, 1~.1/1'
'::- ':<:I'",,7.s- - ,'/) J"':J, ItvTtfU';;7;;" F(!',('c" (rtrd'-rJ1-tt 7'). .l.r:~.,~" dUo 1'..+...,,..<,......
S-<>tt. ' I:LlrzT,,'iC, ;'\J..U l.If^'" ,.,(,.ru,.nf ,,,7t.,t./Q) "
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t'lPR
.'9,1 3: 18
P,'lGE , 003
3. 3ase Rent:
Durinq tlie initial terl1\ of this l'lase Lessee shall P"Y to Lessor.
i;lS base rent the. following amounts I
I).
Honchs 1, throuqh ~ inr-lusive ..
Months, ~ thrcuqh 4t.. inclusive =
.",
In tho' evant r,essee shall extend the lease term hereof in accordance
with the proviSions herein contained therefore the base rent during such
period of extension shall be $1.515,92 per month subject to the
additional rent adjustments herein belllw provided in paragraph 4.
$1.443,75 per mcnth
t1.S1S,92 per month
4, Rent %ncreas,1
Lessee shall pay to Lonsor monthly as additional rent durinq any
rent!wa1 't~I'11' he::eundorl
(a).'a':'sum equal to 116', of the ::-ent paid d'Jrir:q the final year 0::
the' prior five" (5) year term. Lessee will automatically pay increases
when due for 'the one (1) - five (5) year extlmsion if exercised. TWO (2)
additional five (5) year options available at 100' CPI over the last yoar
of'the preceding five (5) yea::- term. und
(b) th'e Lessee' s proportionate share of any increases in the
following eXpenses attributable to the prenuses a~ 4075 Market St::eet,
to' w,iel ta.-:es, :insu=ance. utilities a.,d maintenance, lawn care. snow and
trash' removal. Lassecs proportionate shal:e shall be determined by a
fraction in which the 1,155 square feet leased to Lessee shall be the
, numerator and the total 1eaoab1e space in thu premisns 14.587 square feet
(j,~!o)(l~) llhall be the denomi,nator, Incre,lses to the variable !tams
described, above shall be calculated using the actual costs incurred
during term from August 1, 1992 through JUly 31. 1993 as the base year,
The initial ndjust:l1ents will be calculated usinq tha actuDl costs
ir:currcd during the periOd from l~.'r 1, 1994 through F~i!llit'[~L/ J.V. 1995.
Lessor '<{i1l notify Lessee 0;: the IInnull1 adjustments on or before
I\.....~~ 1, beginning in 1995, in aach year d\lrinq the term hereof or any
extension thcreof to be effective March 1 of the saron ye.ar,
(c) provided. however~,~hat
herliunder to be eft ecti ve I ~ 1.
month plus, any ,additional arnountll
of paragraph, 4 (b) hereof,
the bDse nnd additional rent. paya.bla 1~~ I{"
1998, shall be no less t.hat S~ 'I
dua in DCI:ordancQ with the provisions
,',
The adjustmaDts herein described shall contin\lo to apply during thn
term of anYi:,extensicn he::eof.
5.. Ponsn~sidh:
,Lessce',:shall be given possession of the demised prcmioeo upon
ccmmencaman:t,::of the term of thiD Lease.
G.': J;1J;,.ilit':!.'es:
.". .
, LOIlGor,will provide and ohall pay for heat. electricity. water Dnc
sewer and air conditioning. The obligation to provide heating and air
2
. .
/0 (J;'/ L'~
.". ,
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rl~GE ,00'1
APR
'9,1 S: 19
'.
ccindi,tioninq sba1l be lilnited to no more tbtlt sixtY (60) bcu:rs pcr week,
, Hl'lat: shall ba,provided in such manner aD to Ilrovide a lllininl\::ll temperature
of, 72 d09rees. Air conditioning shall provide a 1l1r:lXi:num tCJ:lilerature 0:
72 daqrees. LGssee shall be rc~pC'Osi.ble fOl~ j anitcrial services for the
_ leMed spacD. Landlord sball provitl,(! janitorial S(!Il;"Iice to c=oo areas
of the prwsas. provided furtbE!!: the Les,;ee shall ba responsiblE: for
electric utility service attribu~lle to tho leased premises in excess
of $:tO.OO in any month and water aW sew.!r chargl1 in excess of $25,00 per
quarter attributable to tho lensed prc:nisl~s. ExceSS utility billing
shall be subnU.tted by Lessor to Lessee which shall ba paid by Lessee
within' thirty ,(30) days or receipt thereof. Water piping to be connected
to,existinq, submeter by Lessee,
.,:' .::' , I'
f;:;' .. ,'M~in\:'ena.ncP.' and RQ"air~:
. " .
, ' (a)" ,..Th~ LQssor will maintll~ in qO(ld ccnCit:.cn and repair the
sl::::uctural"portions of the demised pra!:lisen. the !!.."(te::ior :::,erect. t;-:.e
,roof. walls, down:ji::outs, gutter. pipes ao,d c:mc.uits l'_-u:erior to ths
buildL'lc;j 1i,ne. parkicq arens. sidewal:<s and ccurbs adjacent to the demised
pr<arnises and make all tnajor facilities and equipment, unll1ss such repairs
or. replaC,ll!l\ent:s ;ire necl1ssor/ 0:: desirable' c.ue to the ne<;ligence 0::
L'essoe, , Lessee! s sublessee!), c~cl!$sionaire~, businass invitees,
lic.ensees"... agents. se..rvants or e.q;:loynes,
, (bl', :'Lessee. at its Ol'oTI ccst md E~-mCJlSa. will keep in qccc.
,ccnditicinahd, =epai= the intericr of the derrused pr~~ses. damage by
fire. eleml1ots"end reasonable wear end taar excepted. At t=11 exPiratio;",
or terminatio;i of this wease. LasSlle sha,ll deliver up the d~'l\isec.
premises, nnd,at ~~11 t~e of Gcch c.nliverj, tho interior of the d~~isl1s
premises shall be. in good ccnditicn and ret:'ilir. ordinary "'ear ll-'ld tear
ll.,<'cepted.
(c), ' Lessee shall not parfot::l any acts or carry on ;my practiCl1s
whie..;, may injure thl1 demisl1d p::emiS'lS 01: bo a nlU-sancl1 or menace to the
health or
"
'. "
.',' ,
, "
" "
,.. ,:' :.' nILr.~G\PSl'RONE;LSE (kes/l/10/94l
3
"
',PR'
'~~ ;3:20
rAGE ,0'05
, '
'....~.....
, .
safetY.. of athet: tenl'_'\ts. Lessee shall not burn any trar.h or garl:>age in or
~t tho demised preni.ses. Lessee shall not keep or display any merchandise
or other iters on ar othe::wise obstruct the camen areas of the entire
project, Tho plUll'bL'1g faciliti.es shall not. be used for any purpose other than
tlmt for 'hmch they l>'Ore const1:uctl..'<.! and nQ fOJ:eign substance ,of any kind
shall bo thrO',,," therein, Noit1lor !:.I~sscc, Qr its agents or employees shall in
any ','7lY deface i'.ny ....'alls, coilliC;S, pattit,!.ons, floors, wood, stone, lOOtal
'h'()rk'orany p.'i..T"t of the demised premi.ses,
(d)" The CO!;1;. of any chilll.;es, iJl1provl;,<oonl:s, alterations ar like oottor,
, I~it.'l.!.n, the demised, promises rcqui::cd to be IlI3do by any sovornmont 01:"
gOVririJmcntal agency or instrurncnt4l1ity, indud5.ng any authority or comnission,
by',reason of Lessee's specific type of use and/or OCC\l!2tion of the demised
p!=cmisO$, shall be p:1id for ':::y Lessee at it;; 0''''1 cost and c.'<PCJ1Se. Should
,Lessee fail to pay any such cot;\:, L<:lS50r nay POlY the same, and the arrounts ,
thus paid, shall be payable by 1-'15S00 as additional ront. Any changes,
'irr!?roverer.t, a1tet'ations or like rr.~ttcr \'Iithin the demised premises, t'equi:red
to be rradc by any government or govornrr.ent.'1l u\jCncy or inst:.ru:11entality,
incll.:dir.g any authorit:y (n: cCl1l1liJ;sion not occallianed by Lessee's specific type
of use and/or occupation of the dcmisod prr;misllS shall i:c p31d for by Lessor.
LeSsor' aarccs he lrill be resoonsible rot' camHance with the reouirerocnts
rega.t"cii.nq handicaF9cd access-tel all c=~n ai~ls .imposed under state or
federal regulations .....hich are not: sp.;cific'1lly required as t.lJo result of
!.O$~-ee' s occupancy of the premi.ses.
. f.' .
(e) Lessee shall at Lcss~'s sole e.~l!SC, and in accordance '/lith all
uwlicable. s'"..ate, federal, and local regulations, prcrrptly rerove and diSJ;OSc
of aU. medical and e.'lVircnmentally haz.a..\'-coUS 'h,lSte from the leilSed premises.
Lessee hereby agrees to indernn..i,fy and save harrolless Lessor frc:m any loss or
liability arising from the use, storage, or dil;pJsal of such medical and/or
environroentally hazardous 'Io'aSto.
0,; Camli'ance 'with !.3,w:
Lessee, agrees to observe cr.d cCl11f>ly Id.th all statutes, ordinances,
rules, ordei:1;, regulations, requirements and 1<1''''''; now in eff= or which =y
i:c enacted during continuance of this Leese or any rone-1Ial he'reof by any
/Tllnicip:!l" =;nt'f, state or federal author.\.t'f elr othar public body or agcncy
h..wing juriOOic"'..ion over the demised pt'e.ulSes ell:' ovet' any business Lessee
conduc:ts upon, the demised oreni,ses, and Lessee shall inclcrnnir,{ and. save
hurri1less Lessor frcm non-cOn'fl1J.p.nco with thc a/uno. Fllrther, Lessee shall
neither condu~ nor ca~se nor permit to be conducted any nuisance in, u!?On, or
about, tho. d~:sed pt'e1U.SCS,
, ,~ :' ol.'.':", .
9.: 1!Q.o' of"ptenisei: "
,-. '.f
, ' i' ~;'ee",sha1l'use' the demi.sed orenises fot' medical office use and for no
othei:' p(u:p;,sc'. ",The premises shall iXl used and occupied in a safe, careful and
proper rri1!iner; and no nuilllillce, t:r....-de ot' occup.:ltion which is known in the
0\
p.n!=i
11PR I . 9,1 :3: 20
'..
P,l'3E \ 006 .
',__ '0
, insur;mco ,tracle as C'."ttm or especially haz.udollS shall be per:nittcd therein.
Lessee shalf, not conduct any activity which eithor shalll1l:."Cie void or voidable
any' bsurance on the demised pranises, !n the event that any of Lessee's
activities'shall cause an increase in U!s50r's insurance premiums, Lessee
shall be re=nsible for and shall pay as additional rent t.'le.arrount of such
increaso in Premium attriliut:abJ.e solely to te!!llee's act:ivities.
10., Alteration - TJ,em;:
, "
Tne lniti,al alterations and i.,?rovcmlnt:s to the demised prenises shall
' be conntruct,::d at tMsee' s cost:, T..essee shall give to Lessor the right of
first refusal to provide lclxlr and :tGtorials for a mutually agreeable scope of
work desirl?d by Lessee upon tho same toms and conditions as any IXlna fide
offer by any, third p..'ltty contractor which Lessee shall desire to accept:,
LesSor shall buve sevenl~-t.~ (72) hours after presentation of such offer to
accOot or rejoct'such richt of first rofusal. Lessee shall Inake no
,alterations in 0::- cdditiol'.$ or iliprove:nonts to the demised pre:nises Without
' the orior ~;rittC::l consent of the Lessor. ;Ul uuch alterations or inDrovenents
Irede"by Lessee (except llOvable office furniturll and profession fixtures) shall
at the option of tho Lessor, bE.<:cme the pmper1;Y of Lessor at the t.e..'11\i..r.ation
of ::..':e w-'\.so. Should Lessor not.:.r[ Lessee in ~Iritir.g sIxty (60) days prior to
the, e.'<piration of the initial ter.n or any ~ellsiOI1 hereof that Lessor does
not desire, =1 or all alterations Ot" i'lPrO'tements ir..stalled by Lessee, Lessee
\~ill rerrove such altc..'"ations o!' inprovc:llents not desired by !?-S50r and repair
any c!am!lge: caused by such rC!ooval. In the event Lassot" fails to give the
aforesaid,nqtico to rerove said illprovcment:s al: least sixty (60) days prior to
the e:.:pL-ration of tee term, thc:n Lessee shnJ.l 1I0t be resp:lnsible fot" t..ie
rerroval of Gaid iJIoro\ieoonts or the e:<::>er.sll thuroof. If Lessor carolies with
the afores.:rld notice requirewnts, Lessee l;hall also repair a.."1Y cla:ni;ge caused
to the d"-.-ui..t:-ed prenises b-.f the installation or reroval of alternations,
aciditiol'.$ or i:..prcvC!l1Onts by Ot' fot" !..cssee, and rest:ore preni.ses to genera!
office cor.d1t.ion. Lessee shall neit-ier co nor permit: nor calise to be Cone any
act or ching :....i1.ich shall =eat:e uny mechan.i.c' s lien or claims for lien against
the demised preni.ses or any pat't thereof, LesElee, Lessee's successors and
assigns" cOntractors, subconm,ctors, laborers, Imterial men and all persons
, \Oo"hansOe\icr'hercby w<lives, releases, disclaims ltny and all claims and/or for
the 'furnishings' or doing of any oro.tter 01: t:hin\l pennitted or required by airy
-law;',ordinance or regulation (1'.0'.... or hereafter in force) or by the terms of .
" this Leasebr otherwise (c!one'with or without the known ot" consent of the
LesSor) . ,~sec h=cby agrees to indC!mify and save harmless Lessor against
any and all: such liellS and claims and all C;OS~I, c..'q?enne!3, and attorney's fees
in, connection there-....ith. If any such lieDs Shllll attach, Lessee, upon
rcqueSt~ imncdiately shall give such security cIS shall be roa.o;onable
'satisfactoz:y to' Lessor in oreer to hold Lensor safe llnd IlImuless against any
such 'claim ot",lien ar.d all Cmreges, coats, att~lrncy's fees and !!XpCnses, to
inc~ude IDIy' judgnent or decree wh.l.ch mig.it l:e rendered against Lessor, the
d<miscd premises or Lessor's interest in the d~rni.seci premises on account of
such.1+en or claim.
'.'j
.,',...
::
."
5
APR- 1-~4 Fr.: I
:3 : ?:;:
o n(.'
nl'R
'94 8:21
PI~GE ,,007 .
, ,I ._..
- :..Fir.al cgreement b<lt:fIeen t.l:e partie;; regarding the scope of -"ork
which ;ray be, c!cine by Le$sor as :urther ccscrib=d above shall constitute a
condition precedent to this lellSe being binding upon the parties hereto. In
the event the parties shall fail to IlJ;9l:OVC such scope of lIork and
carcensation therefor within 15 days of execution hereof, this agreement shall
be deEmed null and void and neither party shall have any !-urthcr obligation to
'the,oi:.hcr Iiereur.der,
'i"' .
11. S~le:tt:ina:
',,' LesSC:c, shall not assign, ur.c!erlet, sublet: or :rortglge the e!mti.scd
premises ,or ;my part: thereof or permit e.ny p:1r'cy, person, firm or cOI:];Oration
;to ,oCcupy' tbe deilicd premises or any part thereof wit.hout' the prior '....ritten
'conSent of'Lessor, which consent shall not be lJnreasonablv withheld,
Provided, howev.er, that Lessee shall have the :dght to sublease to any 0'.5
affiliate.
'"
12. :, Suf.>oi:-cllr.atioo:
,'tes!3eeagrees, that 1.'1 the event the rrort:gagee \:nd~ any r.ortgage which
LeSsOr has:'or' n'ay give against the demised premises shall so require, co
suboi:dioa~e the lien and priority of this Leas'3 in favor of such lTortgage and
to 'eX!!CUte any instruments which Lessor or such mortgagee l1\3Y clem necessary
and/or ~ropriate'to accomplir.h that ene!. p~)vided that any such
subordination shall include a non-<listurlm1ce I?rovision rcg:u:ding Lessc..",'s
interest ill the ,premises in fOL':1\ acccptllble to Lessee, which accp.ptance shall
not unreasonably ,be ~lithheld.
. '.'
13. RciOairs:, '
" ,
, ,: ,LesSOri' or Lessor's rcprr.sentatives, '<lith prior written notice to Lessee
JreY cntcr,uton and, inspect that demif: d ptl3l1is'~ and ev'M;y ~ thereof or
perform',roi1tine,IMiJltenance thereto c.ring nonMl business hours. Lessor
'shcUl also have authority to enter UJ;:On t.he demised premises at any t.lroe for
the, purpose' ,o,f ,effect:ir,g =gCllcy rep:l.irs.
'14.,: ,R1.1los',and Reoulation.'l:
, ",'
, ,.., In'aci:l.ition' t.o the seveLm covenants c:oot.:llned in this Lease, it is
, ,specificallY. 'ilgreed that t..=60r nay fran time to t.iJoo establish reasonable
'. ',t'\lle9,' arid ,reguJ:iltioos appertaining to the de:nilled premises and Lessee agrees
to J;G,bound. by 'same. Any such rules and rcgull1tions shall be consistent with
"the:"tenns of this Leilse and shall deal only wit;.h the operation of the building
in which:,the, demised pre:nises are 10Cilted.
: ' ~ '
',', ' ',' .
,,'15'. ::l:la1t'eaei: DestrUction and rnmll<lI1ce:
, ,.,,'.r: .",'",
, ' , (a) "'J:j; ~~ deilied pr~i.scs shall 00 partially damaged by fire, stODU
, or other casualty, 'so as to render same partially untenantable, then Lessor
6
.'
APR- 1-94 FR r
.3: 2.,
P.07
I'I~R
PI~GEo, 008 .
1,09.1 B: 22
.,
,4l. ,f_.___.
, .
,shall prc:rll?tly proc=:l to rra":e repairs which shall be calplet"'-i wit.'Un ninety
(90)' dayS. During the interim I.eosee's rent shall be abated )?roportionatcly
(l!3, to tho portion, or a.~cnt of the demised prEmises rendered um:enantable.
In the event reoairs cannot be co:roleted within ninety (90) days Lessee may at
it's ootion, 'toriiu.nate this lease without penalty therefor by providing written
notic~, to IJ3ssor of IJ3ssee's desire to terminate. Such notice must bo given
,"by.r.es~ no..later thWl five (5) days a!1:er notice by Lessor of his !.nability
td-:rraJ.:e;:tl1c' n~cssary repairs withi.'1 tbe ninet}' (90) day limitation.
'.;..., ". ,', "'
, : (b)' ;;if, denised prenises sl:all b~ so c.:nreged by fire, storm or ot.l1er
casualty'so' as' 'to render s.:nne \>+,ol1y u:;temmtable, then Lessor shall bave the
optlon u!;Xln,wri'tten notice fll-teen (15) r.'.a~'s f:'an date of said casue.lty to
rl:build or not rebuild thu demised orcmLse!1, Tn the event Lessor determines
to rebuild Lessor shall prCllTptly prOco...'<i to rebuild or repuir thu demised
premises which rebuilding or repairing sh<\l1 1:<:. cc:npleted within one hundred
"twenty '(120) days from the date of the i,\.ro or other casualty. During the
interi!1\ 'L<Jssee's rent shall be abated. Provided further that in the event
, 'LcsSor shall' dete:ani.ne not to rebu.ilci <:ho~ pre:nises this lease shall t:e::nli.r.atc
" eff~...ive wiJ:h the date of the fize or other c;;;sualty,
(C)''''Lesscir shall insure the cle:nisc;d premiSes ag'linst physical darrage by
, ,reilSon of ,firei storm or other casualty, inCluding a.'ct:endcd coverage, said
, c6ilc-"<lga, shall be to the :['1111 value of t.llo demi.sed preniJ:;es, including the
initial: irmrOveilents and alternations refeI:red to in Dll'aaraoh 10 a1:ove.
(d) -Lessee shall L,sure the deuisoo premises ll9llnSt guoeral public
liability with cOVlmlge for bodily injury <It lE~t three huncil:'ed thousand
($300,000.00) collars per individual aJ':d one mi.llion ($1,000,000.00) Pollars
per incid.ent and for proJ?erty dam=.c;;e u:: lease t'.oenty-five thousand
($25,000..00) dollars. Each party shall :1anlO tf.e other as additional insured
on any suc':hllolicies unci shall f-ur.Ush annual certific"Iteo of insurance to the
, Other ll-.'reauested.
" ',. ..., . .'
,. '.:'
" ' " , ':(e), ):,es50r shall insure the co:t1ron ,,!reus (of the builci.i.ng in which the
d~sed' ~Crirl.i;eS are located, as well as the e:<.terior sidew<illt.s, drive-NaYS,
parki.iig, ai~ and t!;e li.lee, again.st general public liability).
16.. :,Directorv and Sicnace:
:
.,.,
". ..
, "
,Les~oriwiil ma.'te space available Oil tJlC jnterior buildil:g directory and
cxteriorsignaga cSj:lJblished for the demised premiser. for Lessee to indicate
itsoccup:incY of the demised prenises. '!'hE. initial signago shall be as
follo-o';IH I Interio,r directory - 3 l1..,es, Exterior signage - t::square feet to
~: ~~~:~, ~,~,:apJ?roved by mutual agr';<;'loont of the partiel3(h~reto.j. rk'
.' l~'I",::~e'Pavmellt~ 3'f..f(15~i)- ~
':: ", ' .,..., :"ii '.;'"
':":::': rn"'~e!eVi!nt';my rental p:lytl1Cnt is received by Lessor I1Pre than thirty
(30)'-:dayS'af1:er..thc duo date thereof, Lessc.o(; oh/l11 Po3Y to Lessor a late'
payment ' ' ,
,'. .
" "
.' :'/' .
..,. .
7
. '-.,;.
, ,
"
~PP- 1-'111 r-PT
:::: ?9'
P,08
APR'
. 9,1 8: 23
PAGE,OPS
,"
"
charge. in anum':lunt equal to five (5) per cent of the rronth1~' rental pa~nt
due 'to coropenca~e Lessor for tho costs of rent collect~on thereof,
18. :' Defauit ,'- Distraint:
, , '
" "In CllS'e, ~f the non-payment or rent hereil\ re!:iervoo within thirty (30)
days franthe tiinc or tirocs mentioned fer ?'lymcmt of same, or in case the
deni.sed premises be vacated or be dosertc.c by r..essee, Lessor, in ;my case I1laY
enter the same by itself, or Lessor's au~horizl!d agent, by legul process
, therefor, and thereupon m:tY ciUltrcln for all rl!nt due for the rcm:li.nder of the
term" relet' the !X\id premises for any unexpired portion of the totm, receive
'rejlt the;::efor. Lessee shalll.-e liable for such dis~ress for s!l.id rent and
costs, to;ether with rcasonnbln attorney's feell, and Lessee hereby waives the
bciiefit of an laws, lMcle, or to be lI\3do, C.'<Cll1?ti...,g property fratl levy a.'1<i
sale, either on such distress, or any jedgnent obtained for rent, or for
dalragcs I;ccovered for any breach of this cont=uct on the pnt of Lessee.
19. Default, - C.eneral:
,
(a) In the event oi csry of ::he follO'.....l.n9 OCC'.lr'rcnces of "er.forceciJle
default", t.'ssor sr.all be entitled to purs.~e one or :o::lre of the renedies set
forth in p.:1ragraph 18B hereof:
, , ',,' ,,( 1 )', Non p!1yment of rent for a period of thirty (30) days
follolling the, due, date. Provided. that Lessor llball have first deliv~ed to
~ssee a written notice of such Ilon-payroent at least 20 days before such non--
~t. "
, "(2) Brooch of any of the other covenants of this tease or failure
to ccitply with anj'rules or regulations properly prOl'lllll<;;atc-d thereunder,
pttr,iic:!ed th.i~ lessors shall have given Lessee written notice of such breach
and a period of thirty (30) days within which 1:0 C'.u:e same.
.
(3) The filing of a petition in b<\ll.lo:uptcy, ....nether voluntary or
iIivOluntary, against !Rssee or Lessoc's adjudic:ation as banlo:uot or insolvent
in arr.r c~. '
, "
'( 4) ,The a!?!?Ointment of a receiver or t..""'Ilstee in b3nkruptC'f for
'.
',~see..
, '
'(5)
, creditors.
The /1\3.!d.ng of ar.j assigmr..nt by Lessee for the benefit of
:'.
, .
..' (0)', I.cs50r's rencdies in the event of QIl "enforcc.ilile defauJ.t" shall be
:,as 'follOWll::, ' ":'
, , . " " .' . ~
. ,',:. ','
..... " '. " '.
", ,.." .' .."';'(1) lessee hereby c:tp:r;rers 1m'[ Prothonotary of JI.ttorney of arr[
,Ccui:t'o~' Rcco'rd:",to:a~ for Lessee in aIr'f anci all tlctions .....hich m:tY be
, brought to recover the rent due for the reuain<!cr of the term; and/or to sign
",
,'t"
o
P.O,;!
. .
", '
nPR
'9~ 8:23
PAGE ,'0\ 0 .
.,' ....
for Lessee 'an agree-nent:. for cntering in any carpetent cou..rt,an .a.micable Action'
or Actions, for tbe recovery of such rent, and in said suits or in said
i\n\icablo IiCtion, or !\ct:.ions to Confess Judgment agalnst Lessee for the rent
due, 'and for the rent for tho t'em3.incer of the term, and for interest and
,COGI:!l, together wich reasonablo attorney's fees; and Lessee hereby e:<pressly
wai;Je5 and.releaseo all CtTOrs und defects in entering such judgnent and
'further, waivC!l and rele.:lses all relief fran any und all appraisement, stay or
'ex~on laws" 00;/ in force or hereafter to b~ passed, and also waives the
right, of iDquisit!.on on any r~ll cSUlto that IDlY be lovicd upon to collect
such, rent.:!.]:.
, (2) Any i'lttorney of any Court of Record of the County of
" Cunboi:1und l1LlY, ,at the request of Lessor, unci, liS the agent 01:' the attorney of
~ssee, sign <!.ll' agreement for entry in a competent court an Jlmicable Action of
Ejec1:l1lent and confess jucgment in ejectment th'll'eon for the said pre:nises to
any:tetroi',pQSt or present, a~st lcssee, and all persons claiming under
Lessee" Y/ithoue,stay. of e.-<:e<:ution, or appG!ll, and, for so doing, this shall be
a sufficient',\.=n::; a,~d thert.'uoon, a Hrit of Possession or such other writ
as rray, then-be 'apprcpriate :roy iiimediately issuc on said judc;ment all errors
and'defcCts in :cnt:erir.g such ac:'~ion and judgnem:, or jJ1 the issuing of such
'o'/t:it, or in any, proceedings thereon, or concenling the same, being hereby
e.'<pressly, waived by Lessee, and by any ~rson tJr persons ...t.atsoeve:r claiming
ti-.rcugh, by or under Lessee, and a copy of tlW3 Lease, with any m:xiificatioDS
thereof, being filed. .L"l the said Action, it shall not be necessary to filo the
,origir.al as,a Warrant of Attorney, any law or nule of Court: to the contrary
rot:'lIithstanding;
': (3): At the option of Lessor, this Leuse shall dete.."mi.ne and
becctne nulland::void, and Lessor may re-enter uFOn, ar.d repossess, the here.iJ1
de:ni.sed" premise's.
" '1'.-.,.
, (c),Thed~xercisc of any reoedy or remed:i.es provided herein, by Lessor,
shall not preclude Lessor's exercising, concurrently or successively, one or
llOre other teroecli.es provided horein, or authorized by law.
20 .:..1\cceotanc~. of Notice:
. . . .' .~
", 'r..essee,heteby accepts notice to quit, relOVe frcm, and surrender =n
possession'of, ,the ,said demised premises to LC:lsor, Lessor's heirs, execUtor,
achtdi1istrat,or," sticcesnors and/or assigns at th,a expiration of the term hereof.
, t' ,
':, 21; ~ :Coni:lemnnt.i:cin: '
',' ':' ," .'...\....::..' :
" ,... :,,'~ri):h'e<event'any portion of tho pr~ in which the demised premises
_,:' is,:situa1:e'',sbillJ:,' during, the term hereof, be tllken for any PJblic or O\1asi-
public usu:imdci: any statute or by right of eminent donain, or by priVate
pu'rc~e in lieu thereof by a party e11flO'",ered with eminent danaiu to an extent
that substantinlly ~s the usefulness of tho demised premises for the
purposes fo,!: which the same are hereby leased, then either party shall have
.' '
9
,-, . _ f
P. 10
(4PR
J
.19..1 0: 2,1
PAGE ,"011 .
. ,...,.1.-.._.,..
the',091:ion to terminate this Lease as of the d.'1te when Lessee is required to
yield cossession. j,f this ~\SC or any rene-..a.l hereof is terminated because
of cor.deffir..atJ:on, and Lessee, as a consequence thereof, is required to renove
its pr09Crty :.:rau the demised premises, !.,essee shall have the right to see.~
rcilrlJursEment from the condemning party for th,~ cost of such reroval. T..ess'ee
herebY assigns to Lessor all other right, titlc) and interest in any claim it
DOW, has or Will in the future have against the Ccmronwoolth of Pennsylvania,
the ,United States of AmeriC<l, any luunicip.:1l suJ:division, governmental body
and/or' anY',othe= p:u:ty 'elTl'OWercd ''lith eminent dcroain or the right of private
purchase'in lie'.! the:::eof, and ,!rising out of any past, presenl:. or future
c:retcise of the );eWer of eminent dare.in (or private purchase in lieu thereof)
to' coooemni ta'-e 0:: injure all or any portion of the danised premises or any
imot'ovonent thereon.
- "
22'. ' .~otice:
\{ncl1~ notice shall be oiveD under tlilil Jl.greement, it shall be dee11Cd
to 'be c~ll!'t:'ed whon milled by certified ;nul, postage prcp.:lid to the other at
the cddresG herein above set forth or at such other address of which each
~y liay, iierei!:after notL-I'y the other in wr:it5.../lg,
23 ~ HeOO.lno3':
, ,jl.ny,li~gs preceding the text of the silvera! paragraphs aI1d
s~agraptiS' hereof arc inserted solely for the convenience of reference and
shatl not coi1stitute n part of this lease not llhall thEl'1 affect its meaning,
construction or effect.
24. ~~ic<~tion:
, , This Lease nuy not be m::dified, dischargo:l or te::mi.nated orally or in
any other, itBnner than by written agrec:rent signed by both parties hereto or
their respecti~ successors and assigns.
.:',
25. Wai\ter.:of Defaults:
, .
" (a) " ~9, delaY or emission by either p:lrtJ. hereto to exercise any right
or J?e'n'e.t acc'rlling' upon DOn~CIlp1iance or default by either p:Irty with respect
to any of;'t.he terrns, covenants, or provisions hereof shall jrop.:lir ;my such
right or power or 00 constJ:ued to be .'i1, waiver thereof. Every such right and
J.Xl'o'o'eI: may l:le:exercised at any ti!tle during the e:ontiiluancc of such default. A
waiver by'eitj1er of the parties hereto of unyelf the covenants and agreements
to be perfoored. by ,the other shall not 00 const.rued to be a mrlver of any
sUc;~-<iiIig' ~ch ,thercof or of the breach of any other covenants or agreemmt
, he.reincontained.'
, '.'.,. '
." ,
" ' .'
'. ' :': ; (J?i"'.';:iessee, 's~a11 not treat any t'aill!rc by Lessor to perform ;my dut:y or
obhgat.:Lon';Ullder,this tense as a breach of the Leune nor take any action
the~eon' unless I.csS,or fails to =e such default within a pcricx:l of t.birt:y
(30), days..'after,:;eceipt of written n01:,ice fran Lessee setting for..h said
10
60D_ I -':'lo1 r."D T
~.7."
P. 1 I
. .,
APR
,'94 8:25
PAGE :13 12 '
,,'
"
alleged failure. P:'oVided, ho.~ever, chat should thero be a failuro to SUWly
heat,: air conditioning, elect:dcity ar.d/or water and sewer through no fault of
Lessor, such' failure shall not constitute a breach of this LeMe nor give rise
to 'any rights in Lessee, Provided further that in tho event Lessor shaH fail
to, pay taxe9, insurance or utilities in a timely noanner, Lessee shall have the
right tc;> trake such ~ts on behalf of Lessor in which event Lessee II\3Y use
such ~ts as offsets to Lessee's rent oblisations hereunder.
. .,; .
, 2G:',',:peOJiSvl~ia Lw:
" ,~". '
, ,:.',',"This::i:A!aieshall be constn:o:i according to, be subject to, and be
"', govern,iid.'bY the 16\>.,.. of Pc.nnsylv;mia.
. " ',:.., ' :' .. ' l' ~' .,' :
" 27;, ' ~ntire: .~.a;-eanell!;,:
. . . "'. .':. I'
, , :, ',," Thi.'s",$Jisf.i-uIront contains the entire agreement between the parties hereto
;" ai:a: shalX;oo',biilding' upon the parties hereto, their heirs, successors and
assigns. '
-', '. I
28. , ' RcnCWill:
, "
, ',;:',' i>". i;old.u:g over by the Lessee beyor,d the tonn of this Lease or any
" extension hereof, shall at Lessor's ootion be d':ened a rem~^cl. of the L<Jase 00
, II mOnth'to m:mth' tel"' basis, 'tdth sald 'l.'ene...al being under and subject to all
preid.sionS'cont:<1ioed in this Loose, ar.d shall be at the option of the Lessor.
Lcs'seo sliaHbC dcerod to have held over under this parag>.cph unless it shall
have notified Lessor in writing of its intention to surrender the prenl.ses at
,the, end ,of.. the term hereof, or at the end of any subsequent teen, ninety (90)
days prior, to the expiration oi the term hereof, or of any subsequent term.
, 29 ~ ';:ootlcih.to 'Purchase:
'" . .
, ,; Less~'sha11' have the option to purchllSe all that cc...-tai.n tract of land
together w:!-th, .iJTProverr.eots thCl:eon situato at 4076 Market Street, ~ Hill of
, which' the' 'leused prenises is tl p&t u!;on the f"llowing tOJ:l11S and conditions:
'" ',;, :,A." 'Th,i:i Option shall be e.~erciscd by delivering notice of exercise
, th,er~~ to; Le$sor, no later than Allg\l$t 1, 1994.
\ , ..'. ~ '.
. ',. -I" ",
, : ',B'",: The optJ.on/sale price sball be tho a'/erage of l:\\'O appraisals, one
'each to be, prOVided by Certiiied coltoorcia1 ~Jruisers lJelected by Lessor and
LeSsoc~ "ProVided, ho-..rever, thc,t in the event :;aid price deteouination shall
be,le'so thi:ui,$1;400,OOO.00, Lessor shall have l:he rigbt to terminate the said
purchASe option. .. In the event the purchlllJo op::ion is so tetminated, the
reffi9.i.n.i.rig leaSe', terms herein shall rcrlUin .in PIll force and effect.
. ", . \,
I' ,',',' c;,. l':et.t1fucnt shall be cmpleted with.in 120 days of notice to exercise
, tllo :.optiot:l" ,: 'At', settlement each purty shall shure equally in any real estate
, : trailS fer'; taXes 'and all rcal es1:ato ta.~e.s, reno) and preoaid utilities and
,"' .... " .0 ..
. '" '. '....
11
, .. ..,
-. .-....
~ ...,
RPR I '9d 8,26
'J
PflGE,'OI3-
, ,
.'
.
..
~~!nt,enanCD 'aqrea~ents shall be p~o~ated to the data of closinq,
~~'" ,
, IN WITNESS WHElU:OF. the parties he~eto e.xacuted tho presents
the da.y and yoar first above ~Titten.
\~ITNESS: '
1& 12'11.,.. Iff. ai!.Jj~
Zf Irq.,
,
LE~::
,..,....
Ro<;,er C. ile'rone
'WIT~1iSS: "
c:~ p~/(
'~' /
LESSEH:
!Ianisburq Medical MlIr.aqement, !nc.
...--: :/.,' . .~~ ./
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~. TOTAL PAGE,Ol8 **
12
~"'-r-
HARRISBURG MEDICAL MANAGEMENT,
INC"
Plaintiff
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY,PENNSYLVANIA
. v,
No, 95-1851 Equity Term
ROGER C. PETRONE,
Defendant
Civil Action - Equity
l_
'ili
NOTICE TO PLEAD
."
.:.:
To: Harrisburg Medical Management, Inc" Plaintiff
c/o Dean A, Weidner, Esquire and Thomas A. Hulton, Esquire
Wix, Wenger & Weidner
508 North Second Street
P,O. Box 845
Harrisburg, PA 17108-0845
,-..
""
-".-
r..O
v'
You are hereby notified to plead to the within document within twenty (20)
days after service hereof, or a default judgment may be entered against you.
ECKERT SEAMANS CIIERIN & MELLOTT
~~~
Mark 0, Bradshaw, Esquire
Supreme Ct. 1.0, #61975
Christopher M. Cicconi, Esquire
Supreme Ct. 1.0. #19331
One South Market Square Building
213 Market Street
Harrisburg, PA 17101
(717) 237-6000
Attorneys for Defendant
Roger C, Petrone
DATED:
June 5, 1995
the benefit of prospective purchasers Ulercof, rather Ulan a document addressing space within
the building available for lease. The remaining averments of , 5, to the effect that the real
estate listing dated February 22, 1993 "was supplied by Landlord's agent, the realtor" is
denied, Following reasonable investigation, Defendant is without knowledge or infonnation
sufficient to fonn a belief as to when or to whom the listing document mayor may not have
been "supplied" to. Additionally, the avennents of agency constitute legal conclusions
requiring no responsive pleading.
6, Denied, It is specifically denied that the real estate listing made Exhibit "B"
to Plaintiff's Complaint and dated February 22, 199:! was, or could have been, provided to
HMM by the realtor prior to HMM entering into Lease One on May 20, 1992. The
additional avennents uf , 6 relating to HMM's alleged reliance upon the listing is denied
both as an conclusion of law requiring no response and as a matter of fact, as set forth
above.
7, Admitted upon infonnation and belief, By way of further answer, HMM's
practice involves, upon information and belief, two physicians at the present time.
Nevertheless, HMM's "population of patients" is sufficiently broad to have created, at times,
a severe strain upon the available parking at the facility, which strain has negatively impacted
upon Landlord and the other tenants at the property as set forth in greater detail hereinafter.
8. Dcnied as stated, It is dcnied that HMM "experienced" an appreciable
shortage of available parking spaces for use by its employees and patients upon relocating its
operations to the Premises, To the contrary, HMM, its employees and patients, caused an
appreciable shortage of available parking spaces, which intermittent shortage has had
2
negative effeets on the Landlord and other tenants at the Premises as set forth in greater
detail hereinafter,
9. Admitted in part and denied in part as stated, It is admitted that diseussions
by and between HMM and Landlord regarding an alleged shortage of available parking
commenced in early 1993. It is further admitted that a letter bearing the date of February
23, 1993 is attached to Plaintiffs Complaint as Exhibit "C", Plaintiffs purported
incorporation herein by reference of the content of Exhibit "C" is denied, inasmuch as the
correspondence made Exhibit "C" is a document which speaks for itself, and because
Landlord disputes the representations contained in Exhibit "C"; among the representations
contained in Exhibit "C" which Landlord disputes pertaining specifically to the parking issue
are as follows:
(a) It is denied, upon information and belief, that tenant "understood" it
was to have the unrestricted use to 75 parking spaces, By way of further answer, no such
"understanding" was fostered or promoted by Landiord or any of his agents, To the
contrary, HMM was or should have bcen fully aware that pursuant to Lease One, it was
leasing only 4600 square feet of a building having 14,587 leasable square feet. By way of
further answer, there are a total of 71 parking spaces for all of the Premise's tenants' use.
(b) It is dcnied that the Landlord "intended" or ever suggested Utat HMM
would have the exclusive use to evcn Ute front 51 parking spaces, To the contrary, HMM
was or should have been fully aware that pursuant to Lease One, it was leasing only 4600
square feet of a building having 14,587 leasablc square feet, By way of furthcr answer,
there are 20 additional covered parking places to the rear of the Premises, No
3
representations regarding the availability of parking prior to, or con\cmporaneous with, the
execution of Lease One, much less any representations regarding HMM's ability to utilize
these parking spaces were ever made by Landlord prior to or contemporaneous with the
execution of Lease One, By way of further answer, upon information and belief, no
representations were made by any agent of Landlord regarding the availability of parking
prior to, or contemporaneous with, the execution of Lease One, much less any specific
representations regarding the covered parking,
10, Admilled in part and denied in part as stated, It is admitled that HMM
asserted that there was a shortage of parking at the Premises, It is further admitted that
Landlord in or about February, 1993 explained to representatives of HMM that the 20
covered parking spaces located to the rear of the Premises were being used by other tenants
at the Premises for their exclusive and priva\c use, By way of further answer, Landlord has
~ indicated to any representative of HMM that the covered parking spaces were
"available" as common elements for the use of any tenant, Moreover, no representative of
HMM expressed any concern regarding parking to Landlord prior to entering into Lease
One, Following reasonable investigation, it is denied that Landlord specifically advised
HMM that the 20 spaces were "limited common elements" subject to a Declaration of
Condominium which had been filed in the Cumberland County Recorder of Deeds Office.
By way of further answer, while Landlord has no present recollection of making the specific
representations set forth in the Complaint, it is entirely possible that the Declaration of
Condominium may have been discussed, inasmuch as such documents had been prepared and
were about to be filed in or about February, 1993, By way of further answer, upon
4
information and belief, a draft copy of Ute Declaration of Condominium was furnished to a
representative of HMM at or about the time Ute parties executed Lease One. The
Declaration of Condominium was not filed as a result of, inter alia, HMM's option to
purchase Ute Premises as set forth in 1 29 of Lease One,
II, Admitted upon information and belief. By way of further answer, Ute
document made Exhibit "0" to Plaintifrs Complaint appears to aecurately reflect Ute parking
at the Premises,
12, Denied, The averments of 112 are denied in Uteir entirety as follows: No
interim agrecment was reached between the Landlord and HMM on or about February 23,
1993, To the contrary, the Landlord did not agree, on or about February 23, 1993, (or at
any other time) to provide HMM with Ute use of Ute 20 disputed parking spaces, nor did Ute
Landlord agrcc to provide keys to access the nearby door and elevator. By way of further
answer, even the February 23, 1993 correspondencc which Plaintiff has made Exhibit .C. to
its Complaint, (arid upon which Plaintiff apparently relies in making the avennents of 112)
does not support this claim. To the contrary, that correspondence suggests Utat Landlord
agreed on or about February 23, 1993 that eight HMM employees could utilize Ute disputed
parking spaces, which suggestion Is also specifically denied, By way of further answer,
while discussion regarding the disputed parking spaces occurred at a mccting betwccn
Landlord and HMM representatives on February 22, 1993, it is specifically denied Utat, at
this time or at any point subsequently, Landlord agreed to permit HMM wiUt use of Ute 20
disputed parking spaces, and/or keys to access the ncarby door and elevator. By way of
further answer, a binding agreement resolving tile parking issue was entered into by and
5
between Landlord and HMM on March 18, 1994. This agreement, a true and correct copy
of which is attached hereto and made a part hercof as Exhibit" A", refleeted HMM's
acknowledgement that !lIe 20 disputed spaces were "private" and provided that two of these
spaces would be provided to HMM at no additional charge, Pursuant to the temls of tbls
settlement, Landlord provided HMM personnel with keys to the rear door and elevator.
13, Admitted in part and denied in part. As set forth in greater detail in 112
above, no such agreement was ever reached. It is admitted that Landlord did not provide
HMM or its employees with aceess to the disputed parking spaces, door or elevator in or
about February 23, 1993 for the simple reason that he had never agreed to do so.
14. Admitted in part and denied In part as stated. It is admitted that a second
lease by and between Landlord and HMM was entered into on January 29, 1994, and that a
copy of this lease is attached to Plaintiffs Complaint as Exhibit "E". It is additionally
admiUed that Lease Two provides HMM with an additional 1,155 square feet at the
Premises, Following reasonable investigation, Landlord lacks information sufficient to fonn
a belief as to the truth of the averment relating to HMM's need for increased office space,
and the same is therefore denied,
15, Admitted, By way of further answer, HMM entered into Lease Two with full
knowledge of Landlord's interpretation of this lease provision as excluding HMM and its
personnel from the 20 disputed parking spaees, HMM's actions in entering into Lease Two
without any further discussion or clarification as to !lIe status of the disputed parking area
constituted a ratification of Landlord's understanding regarding the same, such that HMM
6
'.
has waived or is now estopped from raising the claims contained in its Complaint in this
matter.
16. Admitted. By way of further answer, and as set forth in greater detail
hereinafter, HMM breached the terms of the lease agreement with Landlord by engaging in
renovation work through an outside contractor, without providing Landlord ("Lessor") with
the opportunity to bid such work, and without obtaining the Landlord's consent as required
by 1 10 of Leases One and Two.
17, Admitted in part and denied in part as staled, It is admitted that the Township
initially rejected HMM's building permit application at or near the end of May, 1994. The
remaining averments relating to Landlord's alleged "failure" to provide a requisite number of
parking spaces are denied as legal conclusions requiring no responsive plcadlng. By way of
further answer, while the building permit application was initially denied on the basis of non-
compliance with Hampden Township zoning ordinances relating to parking, this was a result
of the Township's misunderstanding of the prior use of the identical space for medical
purposes. By way of further answer, the Landlord promptly remedied this problem, at an
expense of approximately $5,000, and the subject building permit applieation was then
approved, By way of further answer and as set forth in greater detail hereinafter, HMM's
refusal to reimburse this $5,000 expense for "re-striping" the parking area is a violation of 1
8 of Leases One and Two,
18, Denied. The averments of 1 18 are denied in their entirety as follows: It is
denied that Landlord "failed" to comply in any respect with the parking requirements of the
Hampden Township zoning ordinance, To the contrary, the lease agreement between the
7
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parties specifically shifts the burden of compliance wiUI any and all ordinances from the
Landlord to HMM. It is further denied Ulat any action by Landlord "resulted" in HMM's
experiencing a two month delay in its occupancy of the additional premises. To the
contrary, upon information and belief, the delay described was the result of HMM's own
scheduling decisions with regard to the renovation work to the additional premises. By way
of further answer, and as set forth in greater detail hereinafter, HMM breached the terms of
the lease agreement with Landlord by engaging in renovation work through an outside
contractor, without providing Landlord ("Lessor") with the opportunity to bid such work and
without obtaining Ole Landlord's consent as required by 1 10 of Leases One and Two.
19, Admitted in part and denied in part as stated. It is admitted that the building
permit for the additional premises was issued by the Township to HMM on or about July 29,
1994, It is admitted Olat Ole Landlord had agreed to re-stripe the parking area to provide for
more parking spaces, and Olat the Landlord agreed to construct additional parking spaces. It
is denied, however, thatthc Landlord had any obligation to resolvc the parking issue by and
between HMM and thc Township. To thc contrary, pursuant to OIC terms of Leases One and
Two, any and all responsibility for compliance with Township ordinances fell squarely upon
HMM, and not Landlord.
20. Admitted in part and denied in part as stated. It is admitted that Landlord
provided additional parking space through re-striping of the parking lot, and that Landlord
agreed to construct several additional parking spaces, It is admitted that Landlord continued
to refusc to providc HMM with access 10 all 20 disputed parking spaces, for the reasons set
forth hereinabovc, including, inter alia, HMM's entry into a second lease with Landlord,
8
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while ful1y aware that the 20 disputed parking spaces were reserved for the exclusive use of
other tenants at the Premises.
COUNT I . SPECIFIC PERFORMANCE
21. The responsive averments of 11 1-20 are incorporated by reference as though
ful1y set forth herein,
22. Denied as stated, The averments of 1 22 constitute legal conclusions requiring
no responsive pleading, By way of further answer, however, Landlord believes, and
therefore avers, that Leases One and Two are valid contracts between the parties, for the
breach of which by HMM Landlord is entitled to damages as set forth more ful1y in the
counterclaims set forth hereinafter.
23, Denied, The averments of 1 23 constitute legal conclusions requiring no
responsive pleading. By way of further answer, HMM has committed several material
breaches of its obligations under Lease Agreements One and Two, as set forth more fully
herein,
24, Denied. The averments of 1 24 constitute legal conclusions requiring no
responsive pleading, By way of further answer, while Plaintifrs Complaint seeks access to
"lill parking spaces on the property", neither of the lease agreements at issue herein provide
Plaintiff with a right to such access, To the contrary, HMM is entitled only to non-exclusive
use of parking on an "as available" basis pursuant to the terms of Leases One and Two. By
way of further answer, HMM entered into Lease Two with ful1 knowledge of the Landlord's
position that the 20 covered spaces were "private" and were not "available" to HMM
personnel, and therefore, ratified Landlord's interpretation of the lease provision and has
9
waived or is estopped from asserting the instant claims, By way of further answer, HMM
was also aware, upon information and belief, when it executed Leases One and Two that
there were other tenants at the premises, which oUler tenants also required parking for Uleir
own use and that of Uleir clients and other business visitors,
25. Denied, The averments of 1 26 constitute legal conclusions requiring no
responsive pleading, By way of further answer, as set forth hereinabove, the 20 private
parking spaces at issue in this action are utilized by other tenants leasing space at the
Premises. By way of further answer, a certain number of these spaces were allocated prior
to HMM's entry into Leases One or Two, whereas the Landlord has been obliged to make
others available to certain tenants who have threatened to leave the Premises unless
guaranteed a reserved parking place due to Ule amount of traffic generated by Plaintiff and its
business visitors, By way of furUler answer, even if Landlord were to .strip. these other
tenants of their exclusive rights to the reserved parking spaces at issue, such action would not
benefit Plaintiff, inasmuch as this would simply displace the 20 vehicles currently parked
behind the building into the parking areas in the front of the building. By way of further
answer, Landlord has always maintained that HMM has no right to the use of the 20 covered
parking spaces at issue herein, and HMM was fully aware of this position at the time it
executed Lease Two, Additionally, Landlord and HMM agrr.cd on March 18, 1994 that
HMM would be allowed to use two of the disputed spaces as a final setUement of this
dispute, It is further denied, upon information and belief, that HMM has suffered any
damages whatsoever,
10
26, Denied, The averments of 1 26 constitute legal conclusions requiring no
responsive pleading. By way of further answer, Landlord has always maintained that HMM
has no right to the use of the 20 covered parking spaces at issue herein, and HMM was fully
aware of this position at the time it executed Lease Two. Additionally, Landlord and HMM
agreed on March 18, 1994 that HMM would be allowed to use two of the disputed spaces as
a final settlement of this dispute,
It is further denied, upon information and belief, that HMM has suffered any damages
whatsoever.
27. Denied. The averments of 127 constitute legal conclusions requiring no
responsive pleading. By way of further answer, HMM is not entitled to the use of the 20
covered parking spaces at issue in this mailer for all the reasons set forth herein. It is
further denied, upon information and belief, that HMM has suffered any damages
whatsoever.
28, Denied. The averments of 1 28 constitute legal conclusions requiring no
responsive pleading. By way of further answer, HMM is not entitled to the use of the 20
covered parking spaces at issue in this mailer for all the reasons set forth herein.
29. Denied. The averments of 129 constitute legal conclusions requiring no
responsive pleading, By way of further answer, HMM is not entitled to the use of the 20
covered parking spaces at issue in lhis mailer for all the reasons set forth herein. It is
further denied, upon information and belief, that HMM has suffered any damages
whatsoever,
11
WHEREFORE, Defendant Landlord, Roger C. Petrone, demands judgment in his
favor and against Plaintiff HMM, together WiUI costs of this aetion and such other and
further relief as this Court deems appropriate,
COUNT II - OUIET ENJOYMENT
30. The responsive avennents of l' 1-29 are incorporated by reference as though
fully set forth herein,
31. Denied, The avennents of 1 31 constitute legal conclusions requiring no
responsive pleading, By way of further answer, as set forth hereinabove, the 20 private
parking spaces at issue in this action are utilized by oUler tenants leasing space at the
Premises, By way of further answer, a certain number of these spaces were allocated prior
to HMM's entry into Leases One or Two, whereas the Landlord has been obliged to make
. others available to certain tenants who have thrt'.atened to leave the Premises unless
guaranteed a reserved parking place due to the amount of traffic generated by Plaintiff and its
business visitors. By way of further answer, even if Landlord were to .strip. these other
tenants of their exclusive rights to the reserved parking spaces at issue, such action would not
benefit Plaintiff, inasmuch as this would simply displace the 20 vehicles currently parked
behind Ule building into the parking areas in the front of the building,
32, Denied. The averments of 1 32 constitute legal conclusions requiring no
responsive pleading, To the contrary, upon information and belief, HMM has suffered no
damages whatsoever.
12
WHEREFORE, Defendant Landlord, Roger C. Petrone, demands judgment in his
favor and against Plaintiff HMM, together with costs of this action and such other and
further relief as this Court deems appropriate.
COUNT III - FRAUD
33. The responsive averments of 11 1-32 are incorporated by reference as though
fully set forth herein.
34. Denied. The averments of 1 34 constitute legal conclusions requiring no
responsive pleading, By way of further answer, Landlord made no representations
whatsoever regarding the availability of parking spaces to HMM or otherwise prior to the
entry of HMM into Lease One. By way of further answer, upon information and belief,
Landlord's agent made no representations other than that the property had a total of seventy-
five parking spaces available for the use of the tenants, By way of further answer, such
representation is true in that, as shown on Exhibit "0" to Plaintifrs Complaint, the property
has 76 "deemed" spaces for purposes of meeting township ordinances, and 71 actual parking
spaces, By way of further answer, HMM never disclosed to Landlord the extent of its need
for parking or its intent to monopolize all available parking, nor did HMM otherwise suggest
that it believed the parking facilities at the Premises would be inadequate for its intended use
of the space,
35. Denied. The averments of 1 35 constitute legal conclusions requiring no
responsive pleading. By way of further answer, given the existence of other tenants at the
Premises, and the fact that these tenants also have clients and business visitors, it is
untenable for HMM to suggest that it would or should have unfettered access to iI11 the
13
parking spaees on the Premises. To the contrary, HMM leased only 4600 square feet
(pursuant to Lease One) and only 1155 square feet (pursuant to Lease Two) at the Premises,
which has a tolalleasable square footage of 14,587 feet, Therefore, HMM currently leases
5,755 square feet out of 14,587 square feet available, or less than 40% of the available
square footage, Applying this formula to the available parking spaee, by way of illustration,
40% of the 71 parking spaces would be 28 &paees. HMM currently has access to the 51
parking spaces available in the front of the Premises, Therefore, by way of illustration,
HMM currently has unfettered access to 100% of the available common area parking per the
Lease Agreements, which available spaee represents approximately 72% of the tolal parking
area at the Premises, HMM's position that it is entitled to iill 71 spaces is unsupported by
the lease documentation.
36, Denied, The averments of 1 36 constitute legal conclusions requiring no
responsive pleading, By way of further answer, it is denied that the Landlord has reserved
20 spaces "for his own use". To the contrary, these spaces are utilized by other tenants at
the Premises, which tenants would, if not parked to the rcar of the Premises, otherwise take
up available spaee in the parking lots to the front of the Premises. By way of further
answer, while the Landlord may at some time, have made referenee to a Declaration of
Condominium, the same was not filed in recognition of tenant's option to purchases set forth
in 1 29 of the lease agreements, By way of further answer, such Declaration had been
prepared for Iiling and a copy of the same was made available to HMM by the Landlord in
or about February of 1993, after Lease One was executed by the parties.
14
37, Denied, The averments of 1 37 constitute legal conclusions requiring no
responsive pleading, II is further denied that the Landlord made any statement to HMM
regarding available parking spaces prior to the entry by the parties into Lease One. To the
contrary, the Landlord made no such representations. FoUowing reasonable investigation,
the remaining averments of 1 37 relating to the "Landlord's statements" relating to the
Declaration of Condominium are denied based upon lack of information sufficient to fonn a
belief as to the truth thercof. To the contrary, Landlord explained to HMM representatives
that tile 20 covered parking spaces to the rear of the premises were private, would remain
private, and were not "available" as common areas subject 10 use of any building tenant.
38. Denied. The averments of 1 38 constitute legal conclusions requiring no
responsive pleading, Ills further denied that the Landlord made any representation regarding
the number of spaces available for HMM's use prior to the entry by the parties into Lease
One. By way of further answer, HMM knew fuU weU of the Landlord's position that the 20
covered parking spaces were private and were not "available" for its use prior to entering
into Lease Two,
39. Denied, The averments of 1 39 constitute legal conclusions requiring no
responsive pleading, It is also denied that HMM "relied" upon Landlord's representations
regarding the Declaration of Condominium in entering into Lease One, inasmuch as no
discussions relating to the Declaration of Condominium occurred prior to the entry by the
parties into Lease One. By way of further answer, it is denied that HMM "relied" on any
presentations by Landlord relating to the Declaration of Condominium in entering into Lease
Two, inasmuch as the Landlord's position (to the effect that the covered parking spaces were
15
private and "unavailable" to HMM) was wel1 known to HMM prior to the entry of the
parties into Lease Two. Furthermore, prior to entering into Lease Two, HMM had been
provided by a copy of the Declaration of Condominium, had an ample opportunity to search
the public records with regard to whether or not the same had been filed, and yet demanded
no assurances regarding parking within Lease Two itself, or as a .side" Agreement between
the parties prior to entering into Lease Two, HMM's actions in entering into Lease Two
without any further discussion or clarification as to the status of the disputed parking area
constituted a ratification of Landlord's understanding regarding the same, such that HMM
has waived or is now estopped from raising the claims contained in its Complaint in this
mailer.
40, Denied. The averments of 1 40 constitute legal conclusions requiring no
responsive pleading. It is further denied that the Landlord made any misrepresentations
whatsoever, To the contrary, no discussions whatsoever relating to parking occurred by and
between the parties prior to their entry into Lease One, and HMM ful1y understand the
Landlord's position with regard to the parking issue prior to its entry into Lease Two.
Furthermore, it is denied that HMM's rights "under Lease One and Lease Two" have been
violated in any manner relating to the parking Issue. To the contrary, the Landlord has
complied in every respect with the terms of the lease relating to the availability of parking
for HMM.
41. Denied, The averments of 1 41 constitute legal conclusions requiring no
responsive pleading, It is further denied, upon information and belief, that HMM has
suffered any damages whatsoever.
16
42, Denied. The averments of 1 42 constitute legal conclusions requiring no
responsive pleading. It is further denied that the 20 parking spaces have been "unlawfully"
reserved by Landlord for his own uses, To the contrary, the 20 covered parking spaces at
issue have merely been assigned to tenants at the Premises, including two of which that have
been assigned to HMM employees pursuant to the setUement agreement dated March 18,
1994.
WHEREFORE, Defendant Landlord, Roger C. Petrone, demands judgment in his
favor and against Plaintiff HMM, together with costs of this action and such other and
further relief as this Court deems appropriate.
NEW MATTER
43. The responsive averments set forth at 111-42 are hereby incorporated by
referenced as UlOugh fully set forth herein,
44. Lease One, made Exhibit "A" to Plaintifrs Complaint is a fully integrated
legal document which speaks for itself.
45. HMM made no inquiry of Landlord with regard to any concern relating to the
adequacy of parking at the Premises prior to its entry into Lease One,
46. HMM made no inquiry of Landlord's agent with regard to any concern
relating to the adequacy of parking at the Premises prior to its entry into Lease One.
47. Landlord made no representations relating to the adequacy of parking at the
Premises prior to the parties' entry into Lease One.
48. Landlord's agent made no representations relating to the adequacy of parking
at the Premises prior to the parties' entry into Lease One,
17
,
49. The rc.'ll estate listing made Exhibit "n" to Plalntifrs Complaint, dated
February 22, 1993 was not provided to HMM by anyone prior to HMM's entry into Lease
One on May 20, 1992,
50, HMM could not have "relied" upon a February, 1993 document in executing a
May, 1992 Lease Agreement,
51. Landlord has never suggested nor represented to HMM or any HMM
representative that the 20 disputed parking spaces were "available" for HMM's use.
52, Lease Two, made Exhibit "E" 10 Plalntifrs Complaint is a fully integrated
legal document which spc.1ks for itself,
53, The provisions of Lc.1se Two arc substantially identical to the provisions of
Lease One, particnlarly wllh regard to the leases' provisions regarding parking,
54, HMM entered Inlo tense Two with full knowledge of Landlord's interpretation
of the lense provisions regarding parking as excluding HMM and its personnel from the 20
disputed parking spaces,
55, HMM's IIctlons ill entcring into Lease Two without any further discussion or
clarification as to the status of the disputed parking area constituted a ratification of
l.nndlord's underslandlng regarding the same,
56, By entering into Lc.'lse Two, HMM has waived or is now estopped from
rnlslng the claims contained in Its Complaint in this matter,
57, J>ursuantlo tense Agreements One and Two, HMM is entitled only to non-
exclusive use of comlllon arc.'lS, Including parking, on an "as available" basis,
18
58. Neither Lease One nor Lease Two entitle HMM to unfettered access to iI!l
parking spaces at thc Premises, to the cxclusion of other tenants' reasonable use of the same,
59. On or about March 18, 1994, Landlord and a representativc of HMM entered
into an agreement whereby two of the disputed 20 parking spaces would be made available to
HMM personncl at no charge.
60. Landlord was induced to enter into this agreement as a result of ITh:fM
representative Guamschelli's reprcsentation that this would, at last, settle and resolve the
parking issue betwccn the parties. (Exhibit" A. shall hereinafter be refcrred to as the
.Settlement Agreement"),
61. Consistent with the tcrms of the Settlement Agreement, Landlord tendered rear
door and elevator keys to the Dr, Gallagher, HMM's on-site physician,
62. HMM's claims are barred by the Doctrine of Laches.
63. HMM's claims are barred by thc Doctrine of Estoppel.
64. HMM's claims arc barred by the Doctrinc of Waivcr.
65. HMM's claims are barred by the Doctrine of Unclean Hands,
66. HMM's claims are barred by thc Doctrine Caveat Emptor.
67. HMM has, upon information and bclief, suffered no cognizable damage as a
result of any action of Landlord.
68. HMM's claims arc barred by its failurc to mitigate its damages, if any.
69. Landlord acted reasonably in assigning reserved parking spaces to tenants
other than HMM at the premises.
19
70, Landlord Is speclfienlly entitled pursuant to 1 14 of Lenses One and 'I\vo to
.cstnbllsh rcnsonnble rulcs nnd regulallons nppcrtninlng to thc demised premises and HMM
('Lesseo.) [hns ngreed] to be bound by the same.,
71. HMM has genenlled an unreasonable volume of traffic at the Premises.
72. HMM's monopolization of the available parking at the Premises has resulted in
complnlnls to L:mdlord from oUlcr tenants at the Prcmises,
73. While there Is an Intermittent parking shortage, upon infonnation and belief,
there Is no ongoing, dnily shortage of parking at thc Premises,
74, Nonc of the disputed parking spaces have been assigned to individuals who are
not tcnanls at tile Premises.
75, Evcn if Lnndlord were to "strip. these othcr tcnants of their exclusive rights to
the reservcd parking spaces at issuc, such action would not benefit Plaintiff, inasmuch as this
would simply displace Ihc 20 vchicles currently parked behind the building into the parking
nrens In the front of thc building.
COUNTERCLAIM
AND NOW comes Dcfcndant/Countcrclaim Plaintiff, Roger C, Petronc, (hereinafter
.Lnndlord.), by :md through his attorncys, Eckert Seamans Chcrin & Mellott, and makes the
following Counterclaim against Plaintiff, Harrisburg Medlcn1 Management, Inc, (hereinafter
"HMM"), st.1ting in support thcreof as follows:
COUNT I . IIREACII OF CONTRACT
76. The Responsive and Ncw Matter avermcnts of 11 1.75 arc incorporated by
refercncc ns though fully set forth herein,
20
.
~
.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing pleading was
served on the following counsel of record by deposit in the United States mail, first class
postage prepaid, this 5U, day of June, 1995,
Dean A, Weidner, Esquire
Thomas A. Hullon, Esquire
Wix, Wenger & Weidner
508 North Second Strect
P.O, Box 845
Harrisburg, PA 17108-0845
ECKERT SEAMANS CHERIN & MELLOTT
j~~~,=
, --
Mark D, Bradshaw, Esquire
Supreme Ct, I.D. #61975
Christopher M, Cicconi, Esquire
Supreme Ct. I.D. #19331
One South Market Square Building
213 Market Street
Harrisburg, PA 17101
(717) 237-6000
Attorneys for Defendant
Roger C. Petrone
DATED:
June 5, 1995
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HARRISBURG MEDICAL MANAGEMENT,:
INC. ,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
DOCKET NO. 95-1851 Equity Term
ROGER C. PETRONE,
Defendant
CIVIL ACTION - EQUITY
PLAINTIFF'S REPLY TO NEW MATTER AND COUNTERCLl\IM
AND NOW, comes the Plaintiff, Harrisburg Medical Management,
Inc., by and through its attorneys, Wix, Wenger & Weidner, who
files the following Reply to New Matter and Counterclaim:
43. The averments set forth in Paragraphs 1 through 42 of the
Plaintiff's complaint are incorporated by reference herein
as though set forth in full.
44. Admitted.
45. Denied. A Harrisburg Medical Management, Inc. ("HMMI")
representative specifically asked the Defendant about the
number of parking spaces Which would be available for use by
tenants prior to HMMI's entering into Lease One. Further,
the HMMI representative also inquired as to whether there
was enough parking on the property for HMMI's intended use.
46. Denied. Prior to its,entering into Leaee One, IlMMI's
representative spoke with the Defendant's real estate agent
who represented that there were seventy-five (75) parking
spaces available for the use of a tenant of the property.
47. Denied. Prior to HMMI's entering into Lease One, the
Defendant stated that all parking on the Premises was
available for use by tenants, and that the parking area
would be sufficient for HMMI's intended use.
48. Denied. prior to entering into Lease One and in response to
HMMI's inquiries regarding parking on the Premises, the
Defendant's real estate agent expressly represented that
there were seventy-five (75) parking spaces available for
use by tenants and their patrons. The representations made
by the agent are contained on a real estate listing dated
August 1, 1991, which is attached hereto as Exhibit F and
incorporated by reference herein as though set forth in
full.
49. Admitted in part and denied in part. HMMI admits,that the
real estate listing, inadvertently attached as Exhibit B to
its complaint, is dated February 22, 1993, and also admits
that Exhibit B could not have been provided to HMMI prior to
its entering into Lease One with the Defendant. However,
HMMI denies the inference that no real estate listing was
provided to it prior to its entering into Lease One. The
real estate listing attached hereto as Exhibit F, was
provided to HMMI prior to its entering into Lease One. This
listing provides that there are seventy-five (75) parking
spaces which are available for use by a tenant of the
property.
50. Admitted in part and denied in part. HMMI's answer to
paragraph 49 is incorporated herein by reference. By way of
further response, HMMI specifically relied upon the real
2
,
estate, listing attached hereto as Exhibit F providing that
there are seventy-five (75) parking spaces available for use
of the-tenants of the property prior to its entering into
Lease one.
51. Denied. The Defendant specifically represented to HMMI
orally, and in writing (as is set forth on Exhibit F) that
HMMI, upon signing a lease; would have the non-exclusive
right to use all of the seventy-five (75) parking spaces on
the Property.
52. Admitted.
53. Denied. The allegations contained in Paragraph 53 are
denied in that the Defendant has attempted to characterize
the terms of Lease One and Lease Two, which speak for
themselves.
54. Denied as stated. Shortly after entering into Lease One
HMMI realized it was being refused access to twenty (20)
parking'spaces it was entitled to use pursuant to Lease One;
however, HMMI had, prior to that time, made extensive
lea~ehold improvements and wa~ operating a successful
business on the premises. Through negotiation, HMMI
attempted to resolve its dispute with the Defendant. HMMI,
therefore, denies the implication that by entering into
Lease Two it had accepted the Defendant's self-serving
interpretation of his obligations under Lease One. To the
contrary, HMMI never acquiesced in its position that it was
entitled to the non-exclusive use of all parking spaces and
3
the Defendant's unlawful refusal to permit HMMI employees
and patrons access to the twenty (20) parking spaces is in
violation of Pennsylvania law, Lease One and Lease Two.
55. Denied. The allegations contained in Paragraph 55 are
conclusions of law to which no responsive pleading is
required. To the extent a response is required, it is
expressly and unequivocally denied that:
(a) HMMI acquiesced to Defendant's interpretation of the
number of parking spaces available for HMMI's use by
executing Lease Two; and,
(b) that the parties,had ceased searching for a resolution
of the parking ,problem which would provide that all
twenty' (20) spaces would be available' for the non-
, exclusive use of H~I employees and patrons.
56. Denied. The allegations contained in Paragraph 56 are
conclusions of law to which no responsive pleading is
required.
57. Denied. The allegations contained in Paragraph 57 are
denied in that the Defendant has attempted to characterize
the terms of Lease One and Lease Two which speak for
themselves.
58. Denied as stated. The allegations contained in Paragraph 58
are conclusions of law to which no responsiv~ pleading is
required. To the extent a response is required, the
allegations are denied because HMMI is entitled to the non-
exclusive use of all parking spaces on the property.
4
59. Admitted in part and denied in part. IlMMI admits it entered
into an Agreement with the Defendant for the use of two (2)
parking spaces which had previously been denied to HMMI.
HMMI also admits that there was no additional charge imposed
on HMMI for its use of these two spaces. However, it is
expressly denied that the March 18, 1994 Agreement entered
into between HMMI and the Defendant was intended to be a
permanent solution to the ongoing parking problem or a
settlement of HMMI's rights under Lease One and Lease Two.
60. Denied. The Defendant was not induced to enter into the
interim parking agreement dated May 18, 1995 due to any
representations made by any HMMI representative that the May
18 agreement would permanently solve the parking problem or
settle HMMI rights under the Leases. In an attempt to
alleviate the existing parking shortage, HMMI agreed to
temporarily accept two of the disputed parking spaces. HMMI
representative Guarneschelli never represented to the
Defendant that the Agreement dated May 1B, 1995 between the
parties would lead to the ultimate resolution of the parking
problem.
61. Admitted in part and denied in part. HMMI admits that rear
door and elevator keys were turned over to Dr. Gallagher and
that HMMI presently has the use of two (2) of the twenty
(20) disputed spaces. HMMI denied the characterization of
the Defendant's behavior as a conclusion of law to which no
responsive pleading is required. By way of further
5
response, the Defendant's behavior as alleged in Paragraph
61 is inconsistent with the terms of Lease One and Lease
Two.
62. Denied. The allegations contained in Paragraph 62 are
denied as conclusions of law to which no responsive pleading
is required.
63. Denied. The allegations contained in puragraph 63 are
denied as conclusions of law to which no responsive pleading
is required.
64. Denied. The allegations contained in paragraph 64 are
denied as conclusions of law to which no responsive
pleadings is required.
65. Denied. The allegations contained in paragraph 65 are
denied as conclusions of law to which no responsive pleading
is required.
66. Denied. The allegations contained in paragraph 66 are
denied as conclusions of law to which no responsive pleading
is required.
67. Denied. The allegations contained in Paragraph 67 are
denied in that HMMI has suffered actual and ascertainable
damages as a direct and proximate result of the Defendant's
wrongful usurpation of parking spaces on the Property for
his own use and gain. By way of further response, the
damages suffered by HMMI as a direct result of the
Defendant's unlawful actions include, but are not limited
to:
6
, .
1) Rental overpayments from the date of execution of Leaso
One to the present for the payment of rent for use of
twenty four (24%) percent of the common area parking
which has been wrongfully denied;
2) Loss of patients/patrons who have ceased using the HMMI
facility located on the Premises due to the lack of
parking with a consequential loss of revenue; and
3) the costs of suit and attorney's fees in pursuing the
instant action.
68. Denied. The allegations contained in Paragraph 68 are
conclusions of law to which no responsive pleading is
required. To the extent a response is required, HMMI denies
that it has failed to mitigate its damages. To the
contrary, HMMI has attempted to negotiate for the use of all
parking spaces to which it is entitled pursuant to the terms
of Lease One and Lease Two but the Defendant has failed and
refused to acknowledge HMMI's rights.
69. Denied. The allegations contained in Paragraph 69 are
conclusions of law to which no responsive pleading is
required. To the extent a response is required, the
allegations of Paragraph 69 are denied in that the Defendant
acted unreasonably in exclusively leasing to other persons,
common area parking which had already been leased on a non-
exclusive basis to HMMI.
70. Denied. The allegations contained in Paragraph 70 are
denied in that the Defendant has attempted to characterize
7
the terms of Lease One and Lease Two which speak for
themselves. By way of further response, it is expressly
denied that the Defendant's authority to establish
reasonable rules and regulations includes the ability to
modify fundamental terms of a lease, such as appropriating
common areas available for use by all tenants and conferring
an exclusive right to use that common area upon one person
for a fee.
71. Denied. The allegations contained in Paragraph 71 are
denied in that the volume of traffic generated by HMMI
facility is not unreasonable. The traffic generated by
HMMI's use of the premises is reasonable and is consistent
not'only with the express purpose for which HMMI leased the
Premises, but also other medical arts facilities.
72. Denied. The allegations contained in Paragraph 72 are
denied in that HMMI has not monopolized parking on the
property. To the contrary, HMMI's use of the parking spaces
has always been on a reasonable, non-exclusive basis. By
way of further response, it is the Defendant, by exclusively
leasing twenty (20) of the available seventy-five (75)
parking spaces, who has monopolized the substantial portion
of parking spaces on the property. After reasonable
investigation, the remaining allegations of Paragraph 72 are
denied in that HMMI lacks any information as to whether
other tenants of the Property have complained about HMMI's
use of the parking area.
B
73. Denied as stated. IlMMI denies that there is not a chronic
and persistent shortage of parking available for the use of
HMMI employees, patients/patrons, as well as other tenants
of the Property.
74. Denied. After reasonable investigation, HMMI lacks any
information as to the truth or falsity of the allegations
contained in Paragraph 74 and, therefore, these allegations
are denied.
75. Denied. The Defendant, in appropriating twenty (20) of the
seventy-five (75) available common spaces for the exclusive
use of others, created the parking shortage on the Property.
Providing HMMI with access to these twenty (20) spaces would
alleviate the existing parking shortage. Further, HMMI has
a contractual and legal right under Lease One and Lease Two
to have access to all seventy-five (75) parking spaces. By
way of further response, the twenty (20) parking spaces
which the Defendant has exclusively set aside are often
vacant, yet, they remain inaccessible to HMMI omployees,
patients, patrons, or other tenants.
WHEREFORE, Plaintiff, HMMI, demands judgment against the
Defendant landlord and requests this Court to enter an Order
awarding the Plaintiff:
(a) The amounts of all rental overpayments from the date of
the execution of Lease one, damages for loss of
business due to lack of adequate parking, punitive
9
damages in excess of $20,000, plus pre-judgment and
post-judgmcnt interests and costs of the suit;
(b) an injunction, preliminary until hearing and final
thereafter, enjoining thc Defendant from exclusively
lcasing parking spaces on the property as HMMI has
acquired the non-exclusive right to use such spaces
pursuant to the leases entered into between the
parties; and
(c) such further relief as may be appropriate under the
circumstances.
COUNTERCLl\IM
count I-Breach of contract
76. The averments set forth in Paragraphs 1 through 42 of HMMI's
Complaint, and Paragraphs 43 through 75 of HMMI's Reply to
New Matter are incorporated by reference herein as though
set forth in full.
77. Denied. The allegations contained in Paragraph 77 are
denied in that the Defendant has attempted to characterize
the terms of Lease One and Lease Two which speak for
themselves.
78. Denied. The allegations contained in Paragraph 78 are
denied in that the Defendant has attempted to characterize
the terms of Lease One and Lease Two which speak for
themselves.
10
79, Denied. The allegations contained in Paragraph 79 are
denied in that IlMMI contracted with a third party builder
and the Defendant to perform the initial build-out
contemplated by Lease One. In fact, the Defendant signed
and drafted a work letter dated May 20, 1992, in which the
Defendant expressed in writing his desire to construct a
portion of the build-out. The Defendant actually performed
a substantial portion of the build-out, and authorized HMMI
to enlist the services of another contractor to construct
the remainder of the improvements. By way of further
response, it is expressly denied that the alterations for
the Premises had a contract value of $200,000. The May 20,
1992 agreement is hereinafter referred to as the "Work
Letter", attached hereto as Exhibit G, and incorporated
herein by reference.
80. Denied. The allegations contained in paragraph 80 are
denied in that HMMI expressly offered to the Defendant the
opportunity to construct the build-out contemplated by Lease
one. In fact, the Defendant actually performed a
substantial portion of the improvements in accordance with
the Work Letter. The Defendant refused to perform the other
aspects of the build-out, and authorized HMMI to enlist the
services of another contractor to do so.
81. Denied. After reasonable investigation, HMMI lacks the
information necessary to determine the truth and falsity of
the allegations of Paragraph 81 and, therefore, these
11
allegations are denied. By way of further response, IIMMI
paid the Defendant $52,164.00 for his work in constructing a
portion of the build-but, liliMI is unaware of the amount of
profit the Defendant made on this construction.
82. Denied. Not only did the Defendant approve the alterations
which were made to the Premises pursuant to Lease One, but
the Defendant actually performed a substantial portion of
the alterations himself in accordance with the Work Letter.
83. Admitted in part and denied in part. HMMI admits that it
contracted with a third party builder for the construction
of improvements to the Premises it leased pursuant to Lease
Two. However, HMMI denies that the alterations pursuant to
Lease TWo had a contract value of approximately $60,000.
84. Denied. When presented with the plans setting forth such
improvements, the Defendant had the opportunity to exercise
his right to construct the improvements contemplated by
Lease TWo. However, despite signing the plans (approving
these alterations), the Defendant expressed no interest in
performing the contemplated alterations.
85. Denied. After reasonable investigation, HMMI lacks any
information as to the truth or falsity of the allegations
contained in paragraph 85 and, therefore, these allegations
are denied.
86. Denied. The allegations contained in Paragraph 86 are
denied in that the Defendant signed the plans showing the
12
alterations and improvements which were going to be made to
the Premises pursuant to Lease Two.
87. Denied. The allegations contained in Paragraph 87 are
denied in that the Defendant has attempted to characterize
the terms of Lease One and Lease Two which speak for
themselves.
88. Admitted in part and denied in part. HMMI admits that the
Defendant incurred an expense as a result of having to re-
stripe his parking lot to comply with the Hampden Township
zoning ordinance. However, it is expressly denied that HMMI
was responsible for this expenditure. Rather, Defendant's
failure to conform his property to local land use
regulations governing parking was the impetus for the
Township requiring that parking area be re-striped to
provide for additional spaces. By way of further response,
HMMI suffered damages as a direct and proximate result of
the Defendant's failure to abide by Hampden Township's
Zoning ordinance and to provide the requisite number of
parking spaces as required. ,
89. Denied. The allegations contained in paragraph 89 are
denied in that the Defendant has attempted to characterize
the terms of Lease One and Lease Two, which speak for
themselves. By way of further response, the averments of
paragraph 89 are conclusions of law to which no responsive
pleading is required. To the extent a response is required,
HMMI never agreed to indemnify and hold harmless the
13
Defendant from expenses which arose as a direct and
proximate result of the Defendant's failure to maintain his
Property in accordance with the provision of Hampden
Township's zoning ordinance, or any other state or local
law.
90. Denied. The Defendant has never made a demand upon HMMI for
the sums he expended in re-striping the parking area.
Accordingly, and by way of further pleading, HMMI has never
refused to reimburse the Defendant for the amounts he
expended to re-stripe the parking lot. Further, HMMI has no
legal or contractual obligation to reimburse the Defendant
for expenses he incurred in conforming the Property with the
Hampden Township Zoning Ordinance.
91. Denied. The allegations contained in Paragraph 91 are
denied that the Defendant has attempted to characterize the
terms of Lease One and Lease Two which speak for themselves.
92. Denied. HMMI has never excluded the Defendant from the
demised premises and has always afforded the Defendant
reasonable ac~ess to the property. "
WHEREFORE, Plaintiff, HMMI, demands judgment against the
Defendant landlord and requests this Court to enter an Order
awarding the Plaintiff:
(a) The amounts of all rental overpayments from the date of '
the execution of Lease One, damages for loss of
business due to lack of adequate parking, punitive
14
d' ,
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. . commercial ~ industrial realty company
1015 MUMMA ROAD. WDnt.lLEYSBURG. PENNSYLVANIA 170'3
MAILING ADDRESS: PO, BOX B910. CAMP HILL. PENNSYLVANIA 17001'B910 (717)761.5070
.,' .~"
LOCATED:
BUILDING DESCRIPTIOtl
TDtal sq. tt.:
Construction:
Space available:
Elec. capacity:
Type HVAC:
Type flDDr:
Walls:
Ceiling type:
Lighting:
Eleva tDr:
RDoms /, sizes:
Restrooms:
OFFICE SPACE FOR LEASE
"
4076 Harket Street. Camp lUll, PA 17011
Hampden Township, Cumberland County
12,007 SF available; 17,700 total SF
2-stDry wODd trame & steel; Driginal
1st and 2nd tlDDrs Df Driginal stDne
1200 AMP, 3 phase
Gas-forced hot air; electric air conditioning
Carpet
Dryvall
Acoustic tile
Recessed fluDrescent
15000 Otis
1st flDDr 1,373 SF; 2nd tloo: 1,339 SF. Suites available
from 368 SF tD 6,450 SF cont1guDuS. See plan Dn back
Orig. bldg. I per fl in-commDn; new bldg. 2 per fl in-cDmmDn
in bldg (16,743SF
building stone
house
Rentable)
LEASltlG ItlFORHATIOtl
pnce per sq. ft,: $15
Term Dt lease: Hinimum 2-y.ar
OptiDns: Yes
EscalatiDns: tlegotiable
PDssessiDn: Within 30 days afrer leases fully executed; depends Dn buildDut
Finishing allDwance: Reasonable buildDut will be provided at l.ndlDrd's expense
UTILITIES AtlD SERVICES IllCLUDED IN LEASE (AS HARKED)
l( Hea t l( Taxes
X Electric X Insurance
X Air Con~itiDning X Structural repairs
X ParkingllDt maintenance X InteriDr repairs
X Water & Sewer Z Plumbing repairs
Otner: RTwD times per week
X Trash
if JanitDrial
X I!VAC repairs
Light Bulbs
Supplies
Apartment-Office Limited; permits medical, business and prD-
fessiDnol Dffices1 educational instructiDn, public and
schools. associat on Offices. '
24,046 (Hoy 30, 1991)
75 spaces
High visible and easily accessible frDm all majDr roadways.
Shopping and restaurants nearby, Tudor-srype architecture,
tlorth side of building overlDoks the Conodiquinet Creek.
FOR FURTHER IllFORHATION,
PLEASE COtlTI.CT:
ZOtlIllG:
TRAFFIC COUNT:
.. PARKING: , '
COMMENTS:
Date:
File tlD, OL91-1BO/l
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HARRISBURG MEDICAL MANAGEMENT,:
INC. ,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
DOCKET NO. 95-1851 Equity Term
ROGER C. PETRONE,
Defendant
CIVIL ACTION - EQUITY
CERTIFICl\TE OF SERVICE
I hereby certify the foregoing document was sent via
first class, postage prepaid mail this day to the following:
Mark D. Bradshaw, Esquire
Christopher M. cicconi, Esquire
Eckert, Seamans, cherin & Mellott
One South Market Square Building
213 Market Street
Harrisburg, PA 17101
Respectfully submitted,
WIX, WENGER & WEIDNER
By:-- ---mMab(ltiaRJ
Dean A. Weidner I.D. #06363
Thomas A. Hutton I.O.#65853
508 North Second street
Post Office Box S45
Harrisburg, PA 17108-0845
(717) 234-4182
-
DATE: June 26, 1995
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HARRISBURG MEDICAL MANAGEMENT,:
INC.,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
plaintiff
v.
DOCKET NO. 95-1851 Equity Term
ROGER C. PETRONE,
Defendant
CIVIL ACTION - EQUITY
1.
PLAINTIFF'S REPLY TO DEFENDl\NT'S REOUEST
Denied.
FOR E~M~SS~O~~~8nf,
Ci",::';"
2.
Denied.
J \,!., ~ . ..... .
t.u ~ ) \~ . '0', )
3.
Denied.
Ll..",( .'
neu J.:........"...... ,'\
4. Admitted with clarification. The Plaintiff admits that it had
concerns regarding the adequacy of parking for the Premises
prior to its entering into Lease One.
The Plaintiff's
concerns were allayed by Defendant's representations that the
parking on the premises would selve the Plaintiff's needs.
Plaintiff had no concerns about the availability of parking on
the Premises prior to entering into Lease One as Defendant
represented to Plaintiff prior to the execution of the Lease,
that all parking on the property was available for use by a
tenant.
5. Denied as stated. Prior to its entering into Lease One, the
Plaintiff stated to both the Defendant and Defendant's
representatives that it was concerned that all the parking
spaces on the property may be insufficient to fully meet
Plaintiff's parking needs. Nonetheless, the Defendant assured
the plaintiff that the existing spaces on the Property would
suffice for plaintiff's purposes.
----' .
".
Admitted with clarification. After the parties executed Lease
One and Plaintiff began to occupy the Premises Plaintiff, its
employees and patients experienced an appreciable shortage of
parking. At such time, Plaintiff observed that its employees
and patients were not being permitted to use twenty three (23)
of the parking spaces on the Property in violation of Lease
One. prior to the Plaintiff executing Lease Two, Plaintiff
made Defendant aware of its objection to Defendant leasing
parking spaces on an exclusive basis which Plaintiff had paid
for the right to use.
7. Denied. Paragraph 7 is denied insofar as Lease One and Lease
Two are written documents which speak for themselves.
8. Admitted with clarification. Plaintiff requested Defendant to
honor the terms of the original lease (Lease One) and provide
Plaintiff with access to all common area parking. The
Defendant refused to do so or to make any changes to the terms
of Lease Two as they related to the parties respective rights
to parking. Plaintiff has maintained, and continues to
maintain, that the express terms of Lease One and Lease Two
provide the Plaintiff with the right to access all the parking
spaces on the Property.
9. Denied with clarification. Plaintiff incorporates its answer
to Paragraph 8 herein as though set forth in full.
10. Admitted.
11. Admitted.
1".i__M.~~.,e-'
12. Admitted.
Respectfully submitted,
WIX, WENGER & WEIDNER
By~,-r...)~kai~:
Dean A. Weidner I.D.#06363
Thomas A. Hutton I.D.#65853
508 North Second Street
Post Office Box 845
Harrisburg, PA 17108-0845
(717) 234-4182
Date: January 12, 1996
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HARRISBURG MEDICAL
MANAGEMENT, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Docket No. 95-1851 Equity Tenn
v.
ROGER C. PETRONE,
Defendant
CIVIL ACTION - EQUITY
DEFENDANT'S ANSWERS TO PLAINTIFF'S INTERROGATORIF.s
ECKERT SEAMANS CHERlN & MELLOTT
-~~~
Mark D. Bradshaw, Esquire
Supreme Ct. 1.0. 1161975
Christopher M. Cicconl, Esquire
Supreme Ct. 1.0. 1119331
One South Market Square Building
213 Market Street
Harrisburg, PA 1710l
(717) 237.6000
Altorneys for Defendant
Roger C. Petrone
DATED: 12/1/95
(I) Your Social Security Number;
Objection. Mr. Petrone's Social Security number Is ncltbcr
relcvant nor reasonably calculated to lead to the dlscovcry of
admlsslblc evldencc In this matter.
(g) Your military service and positions held, if any; and
N/A
(h) The schools you have attended and/or are currently attending and the
degrees or certificates awarded and/or being sought, if any.
Objection. Mr. Petrone's schooling Is neither relevant nor
reasonably calculated to lead to the discovery of admissIble evIdence
In this matter.
2. Describe with particularity the basis of your claim that you possess the right to
exclusively lease individual parking spaces on the Premises.
The 23 disputed parking spaces are not "common areas" as this tcnn Is
used In the leases. The disputed parking spaces have been consistently
reserved by the landlord for his own use. Plalntlrr's monopolization of
substantially all avaIlable parking at the facility, (well In excess of any
utilization which would be proportIonal to the percentagc of space leased
by PlalnUfO left the landlord no choice but to nssure othcr tcnants of
3
O'Keefe Greennen & Burslck Law Offices
· Freeman Real Estatc
Ncw Vlcw Corporation
Pctcr Willms, Psycblatrlst
· Paytbnc
· Wizard Teebnology
MJ Computcr Services
Homc Mastcr Real Estatc
· Safc Harbor Counseling Scrvlces
Harrisburg Mcdlcal Managcment
Rogcr C. Pctronc, Architect
(b) His/her address;
4076 Markct Street, Camp HlII, PA (as to all).
(c) Whcther there exists a wriltcn or oral lease bctwccn Defendant and the
person for the use of the Premises.
All tcnants Idcntlfied under (a) abovc are parties to written leases
with landlord exccpt for those Idcntificd with an ".", whlcb tcnants
havc oral lease agreemcnts. Rogcr C. Pctronc has no lease,
whethcr wrlttcn or oral.
5
(d) Whether there exists a wrilten or oral lease between Defendant and the
pcrson for the use of the parking space(s)j
All persons Identlficd In (a) abovc are party to either a wrlttcn or
oral lease for thc use of thc Premises. All wrlttcn leases Inclnde
language substantially Idcntleal to thc language appearing In Leases
1 and 2 bctween landlord and Plaintiff hcrcln relating to the use or
parking. All tcnants Identlficd abovc arc entitled to utilize onc or
more of thc 23 dlsputcd parking spaces pursuant to oral
undcrstandlngs reach cd with thc landlord, In most eases as a result
of dissatisfaction over Plaintiff's monopolization of all othcr
avallablc parking at thc Premises. Harrtsburg Medical
Management Is thc only party to a wrlttcn lease regarding thc use
of parking spaces, thc samc bclng Exhibit "A" to Defcndant's
Answcr, New Matter and Conntcrclalm In this mattcr filcd of
record on or about Junc 6, 1995.
(e) The monthly, weckly or daily rental rate paid by pcrsons who rcnt:
i) The Premises:
Objection. TIlc rcntal ratc on thc Premises Is nelthcr
relcvant nor reasonablc calculatcd to lead to thc
dlscovcry of admissible cvldcncc, and Involves
proprietary Infonnatlon. By way of furthcr answcr,
6
Defendant bellcves, and Ulc;'Cfore avcrs, that Plaintiff
seeks UIIs Infonnatlon for reasons unrclatcd to thc
Instant litigation.
Ii) Parking spaces:
Landlord charges no sevcrablc rent for the use of
parking spaces In addition to thc monthly rcntal for
thc Prcmlses.
(I) The term/duration of any rcntal or lease agreements.
Objection. Thc terrn or duration of any agreemcnts Is nclther
relcvant nor reasonably calculatcd to lead to thc dlscovcry of
admissible cvldence, and involves proprietary Inforrnatlon. By way
of further ailswcr, Dcfcndant bcllcves, and thcrefore avers, that
Plaintiff seeks this Infonllatloll for rC8Sons unrclatcd to thc Instant
litigation.
6. For each person listed in your answer to Interrogatory 5(a), identify any and
all lease agreements, documentation, memoranda, correspondcnce and notes related In any
way to the rental of parking spaces on the Premises.
Paragraph 5(a) abovc (with the exccptlon of those Identlficd by an .." are
parties to written lease agreements. Other than said lease agreemcnts, thc
7
Respectfully submilted (as to objections),
ECKERT SEAMANS CIIERIN & MELLOTT
1~,_
Mark D. Bradshaw, Esquire
Supreme Ct. 1.0. #61975
Christopher M. Cicconi, Esquire
Supreme Ct. J.D. 1119331
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I,
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One South Market Square Building
213 Market Street
Harrisburg, PA 17101
(717) 237-6000
Attorneys for Defendant
Roger C. Pelrone
DATED: 12/1195
9
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ClIPITAL HEALTH SYSTEM
Harrisburg, Pennsylvania
FROM:
Dave Sarcone, Vice President
Ambulatory Services -f\ ~
Philip W. Guarneschelli, Manage~
Facilities & Corporate Real Estate
TO:
DATE:
SUBJECT:
June 29, 1993
Leased Parking Spaces
Dave, attached you will find a list of parking spaces that Roger
Petrone has leased. As you know this breaches our lease with him. I
am in the process of working out a solution. However, no matter how
we look at it, it will be a problem for us. We have only a few
options, one is to take him to court but, if he has no other parking
I don't know what we could expect. Another idea is to work out
parking with next door neighbor, lease it and subtract payment from
our rent. I will keep you up to date.
dls
c: Connae Houk
Steven Rock
(~l{
00009Z
I
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'1<IiAR~ II 'MX
1l10",^,' L WEJlGP.R
DPA.~ ^ WVDSEII
STl!\'E,~r.\\'I.'lS
'!ltf,;u:.<A t.. $HADf, \lVI'
DAVI~l\.orn:
. STtl'HFJlI. DZURA.'1N
GIllARD Il. RlClWlDS
sm'EIII\.'\\'WAMS
'!ltOw.' ^ H\1ITON
WIX, WENGER & WEIDNER
ATTORNEVS...T LAW
506 NORlll SeCOND STRF.F.T
rOST OFfICE BOX s.u
H^RRISUURO, rENNSYI.vANI^ 17108.0845
(1l7)u....m:
'I1'lr,ccMEIl (1111 UHll' .
lfl> PRrse.. STllPF.T
HAPJ...."URO. PA 1l1O>_
(117)'s~ss
'I1'JI.COFIt1\ (11l1"Um
rU'.-.sR .F.I'LYTO
PRlSCemFJlTOFFlct( )
. /JMJ Mellkf Muud""dll &r
June 1, 1993
BENr VIA TELECOPIER
steven J. Fishman, Esquire
C/o carlisle production
1000 Bryn Mawr Road
car~isle, PA 17013~15B8
RE: Camp Hill Family practice
Roger Petrone, Landlord
Harrisburg Praotice Management, Inc., Tenant
,
Dear steve:
Having heard nothing further from you following the message
which you left in response to my voice mail message, I make the
following demand on Roger Petrone on behalf of Harrisburg Practice
Management, Inc. (HPM).
.
The lease offering materials presented to HPM stated that 75
parking spaoes were available for tenants of the building. The lease
provides that HPM, as lessee, shall have lithe non-exclusive right to
the use of all common areas, including hallways, walkways and parking
areas on an 'aa available' basis." As you know, HPM and its patients
have been instructed not to use the parking spaoes located at the rear
(north side) of the building. Thereafter despite Mr. Petrone's
promises whioh I confirmed to you in writing, Mr. Petrone has not
provided keys to the building for the door and elevator which access
that rear parking lot. Effective immediately, our employees and
patients will use all parking, including the rear lot, on a non-
exclusive basis. Further, demand is made that by Friday, June 4, 1993
Mr. Petrone comply with the lease by providing keys for doors and the
rear elevator, thereby giving the lessee reasonable access to the rear
parking lot for its employees. The parking which is being providing in
the front lot is not adequate and is being used by o~her tenants and
their oustomers, to the exclusion of the spaces whic~ are required for
the capital Hoalth lease.
I have scheduled an appointment for next Monday with
representatives of H/lll1pdcn Township to review the status of Mr.
petrone'e building. If the parking issues have not boon resolved lJy
that date, I oxpect to insist that tho Township zoning ordinanco be
000089
. ~~
WIX, WENGER & WEIDNER
steven J. Fishman, Esquire
Page 2
June 1, 1!l!l3
fUlly complied with. which I believe will prevent further leasing of
his )luilding.
lnunedia'tl:lly following my meeting with Township officials, r
will forward a letter to the all commercial realtors in the area
simplY advising them that if they are negotiating on behalf of any
prospective tenants, they should be aware that there is an issue
concerning the availability of parking and that they should mak~
abSOlutely certain that.the tenant will have adequate parking. Should
my investigation at the municipality indicate that parking is not
adequate then I.would add whatever I discover from the investigation.
If these measures fail to elicit complianoe with the lease,
we will institute an action in equity for specific performanoe.
Since Commercial Industrial Realty company was involved in
the original lease negotiations ~nd may be a witness in any logal
prooeedings, we are forwarding a copy of this letter to its
representative. As required by the lease, a certified copy of this
letter is being sent to Roger Petrone.
sincerely yours,
WIX, WENGER & WEIDNER
By: /J J!ar.'f III ltlJ.tt! ~---"
Dean A. Weidner
tram
cc: Mr. Philip 1'1. Guarneschelli (via telecopier)
Mr. Christopher P. Markley (via teleoopier)
Mr. Richard Kleiman (via telocopior)
Mr. Roger Petrone (certified)
"
,:',.
000090
,
,
.,
"
ECKERT SEAMANS CIIERIN & MELLOTT
BY:
~~)'- -
Mark D. Bradshaw, Esquire
Attorney 1.0. No. 61975
One South Market Square Building
213 Market Street
Harrisburg, PA 17101
(717) 237-6000
Attorneys for Defendant
Roger C. Petrone
DATE: /z(,/r5'
"
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INSmUCTIONS
The following instructions and definitions fonn an integral part of these
interrogatories, and Ule interrogatories are to be read In accordance with these instructions
and definitions.
I. "Document": The term "document" means any written, printed, typed,
or other graphic matter of any kind or nature, however produced or reproduced, whether sent
or received or neither, Including drafts and copies bearing notations or marks not found on
the original, and includes, but is not limited to:
(a) all contracts, agreements, representations, warranties,
certificates, opinions,
(b) all letters or other forms of correspondence or communication,
including envelopes, notes, telegrams, cables, telex messages,
messages (including reports; notes, notations and memoranda of
or relating to telephone conversations or conferences),
(c) all memoranda, reports, test results, financial statements or
reports, notes, transcripts, tabulations, studies, analyses,
evaluations, projections, work papers, corporate records or
copies thercof, lists, comparisons, questionnaires, surveys,
charts, graphs, summaries, extracts, statistical records,
compilations,
(d) all desk calendars, appointment books, diaries,
3
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in connection therewith <i&.., speaker, participant,
contributor or infonnation, witness, etc.) or who has any
knowledge thereof together with a description of each
such person's function, role or knowledgej
(v) the Identity (as defined in paragraph 1lI(B) hercol) of
each document which refers thereto or which was used,
referred to or prepared in the course or as a result
thereofj and
(vi) the identity (as defined in paragraph llI(C) hereol) of
each oral communication which was a part thercof or
referred thereto.
(8) When used in connection with any calculation or computation, the
terms "describe" or "description" mean to provide the following information:
(i) an explanation of its meaning (including the nature,
source and meaning of each component part thereof)j
(Ii) an explanation of the manner In which it was derived;
(iii) the identity (as defined in paragraph llI(A) hercol) of
each person who perfonned any function with respect
thereto and a description of his function;
(iv) the identity of cach document (as defined in paragraph
1II(8) hercol) which refers thereto or which was used,
referred to or prepared in the coursc or as a result
thereof; and
(v)
the identity (as defined in paragraph llI(C) hercof) of
each oral communication which occurred in the coursc of
the preparation thereof or which referred thereto.
..
V. "Factual basis": The tenn "factual basis" means (A) set forth each
item of infonnation upon which the allegation, contention, claim or demand to which it
pertains is based, and (8) with respect to each such item of infonnation, identify each person
having knowledge thereof and identify and describe (as defined in paragraph III and IV
7
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hereol) each source thereof including ,but not limited to each document, oral communication,
act, action, activity, accounting, negotiation, praetiee, process, occurrence, occasion, course
of conduct, happening, relationship, scheme, conference, discussion, development, service,
instance, incident, event, calculation and computation upon which you rely with respect
thereto.
VI. "Relates to" or "thereto": The terms "relates to" or "thereto",
"relating to" or "thereto" when used in connection with any act, action, activity, accounting,
practice, process, occurrence, occasion, course of conduct, contractual provision or
document, happening, relationship, scheme, conference, discussion, development, service,
instance, incident, event, etc., means used or occurring or referred to in the preparation
therefore, or in the course thercof, or as a consequence thereof, or referring thereto.
VII. Answer by Reference to Documents: If any interrogatory is answered
by referenee to a document or group of documents, with respect to each such interrogatory
answer, identify (as defined in paragraph III(C) hereol) the specific document or documents
containing the requested Infonnation.
VIII. "Person": The tcrm "person" means all natural persons, corporations,
partnerships or other business associations, public authorities, municipal corporations, state
governments, local governments, all governmental bodies, and all other legal entities.
IX. "Plaintiff(s\". "You". or "Your": The terms "Plaintiff(s)", "you", or
"your" shall refer to Plaintiff Harrisburg Medical Management, Inc. as well as any
reprcscntative acting on behalf of Plaintiff, unless the intcrrogatory requests infonnation from
the individual Plaintiff. The word "representative" shall be liberally construed and shall
8
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include all agents, altorneys, investigators, officers, and all other persons or entities
purporting to act on behalf of Harrisburg Medical Management, Inc.
9
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DEFINlTlONS
The following terms have the designated meanings when used herein:
A. The tenn "identify" shall have the following meanings:
(1) When referring to a person or persons, the tenn shall mean a statement of
the current name, address of residence, business address, telephone number, present
or last known employer, officer titles held, job description and nature of affiliation
with any party to this litigation with respect to each person about whom Infonnation
is sought.
(2) When used with respect to an action (including any omission,
communication, occurrenee, statement or conduct, all of which shall be collectively
referred to in this paragraph as the "action"), the tenn refers to a description of the
substanee of the events constituting the action, a statement of the date on which the
action occurred, an idcntification of each and every person participating in the action,
an ideatification of all other persons present when the action occurred, a statement as
to whether minutes, notes, memoranda or other records exist with respect to the
action, and identification of the person or persons presently having possession,
custody or control of such documents.
(3) When used with respect to a document, the tenn refers to the
provision of the following infonnation:
, (a),. The date of the documentj
(b) The title of the document;
(c) Any idcntifying number on the document;
(d) Any idcntifying designation for the document;
(e) A description of the document;
(I) The subject matter of the documentj
(g) The name, title, address and telephone number of each
person who wrote, signed, prepared, dictated,
participated in preparation of, created, initialed or
otherwise had any function respecting preparation of the
document or review of the document;
10
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(h) The name, title, address and telephone number of each
addressee on the document as well as the same for each
pcrson receiving a copy of the documentj
(i) The prcscnt location of the document and the name and
address of the custodian of the document;
(j) If a document is not an original, the location, name and
address of the custodian of the original; and
(k) Any other designation necessary to Identify the document
for purposes of obtaining a copy thereof.
. B. The tenn "documents" when used herein shall mean all written, typed,
printed, recorded or graphic matter of every type and description, however and by whomever
prepared, produced, reproduced, disseminated or made, in any fonn, now or formr.rly in the
possession, custody, or control of the party to whom this Request i! addressed, its officers,
agents, employees and attorneys, or any of them, including, but not limited to letters, .
correspondenee, telegrams, memoranda, records, minutes of all types of meetings, contracts,
subcontracts, agreements, intra and interoffiee communications, purchase orders,
requisitions, plans, studies, summaries, analyses, results of investigations, reviews, bulletins,
proposals, estimates, appraisals, recommendations, critiques, trip reports, engineering
calculations, bills of materials, drawings, sketches, blueprints, charts, Indices, notices,
diaries, books, desk calendars, appointment books, messages, instructions, work
assignments, notes, notebooks, tape recordings, partial or complete reports of telephone
conversations, photographs, slides, public statements, newspapcr or othcr media releases,
public and governmental filings, opinions, and any other writings, drawings or recordings.
If any document was, but is no longer, in the possession of the party to whom this Request is
addressed or subject to such party's control, identify the document.
C. When used herein, the term "pcrson" shall mean any individual,
partnership, joint venture, firm, association, corporation or business or any governmental or
legal entity.
D. When used herein, the tcnn "communication" shall mean any and all
transmissions of information, the information transmitted, the process by which the
infonnation is transmitted and the tenn shall expressly be inclusive of all written and oral
communications.
E. When used herein, the term "relate to", "relating to" or "in relation to"
shall mean constituting, reflecting, representing, supporting, contradicting, referring to,
stating, describing, recording, noting, embodying, containing, mentioning, studying,
analyzing, discussing, evaluating, or relevant to. As indicated, the term necessarily includes
11
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infonnaUon which is In opposition to as well as in support of tlle posIUon(s) and claim(s) of
the party to whom the Request Is addressed.
F. When used herein the term "reflect" shall mean embody, contain,
record, note, refer to, relate to, describe, be relevant to, state or menUon.
G. The tenn "Lease One" shall mean the commercial lease executed by
and betwccn PlainUff and Defendant on or about May 20, 1992 for approximately 4,600
square fcct of office space, together with eertaln parking rights, located at 4076 Market
Strcct, Camp Hill, PA 17011.
H. The tenn "Lease Two" shall mean the commercial lease executed by
and betwccn PlainUff and Defendant on or about January 29, 1994 for approximately 1,155
square feet of office space, together with eertaln parking rights, located at 4076 Market
Strcct, Camp Hill, PA 17011
I. The tenn "Premises" shall mean the commercial office building located
at 4076 Market Street, Camp Hill, Cumberland County, Pennsylvania and shall include, for
the purpose of these Interrogatories, all common areas, parking areas, further Including those
parking spaces which remain at issue between the parties.
I
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J. The tenn "Complaint" shall mean Plainlifrs Complaint in the capUoned
acUon filed on or about April 11, 1995.
K. The tenn "Reply to New Matter" shall mean Plaintifrs Reply to New
Matter In the caplioned action filed on or about June 26, 1995.
L. The masculine tenns contained herein shall be construed to include the
feminine and/or neuter, as the content requires. Thus, "he" shall be construed to include
"she" and/or "it."
M. Words In the singular shall Include tlle plural thereof. Thus, "person"
shall, Include "pcrsons".
12
INTERROGATORIES
I. Identify those representatives of Plaintiff who had any involvement in the
negotiation of Lease One, in so doing slate each such individual's full name, address, and job
description or title.
ANSWER:
Mr. Philip W. Guarneschelli
Director of General Services
Capital Health System
409 South Second Strcet
P.O. Box 8700
Harrisburg, PA 17105-8700
Mr. Steven Rock
Chief Operating Officer of Subsidiary Organizations
Present address unknown
After reasonable Investigation, Plaintiff believes that Mr. Rock is currently
employed by Keystone Health Plan but is unaware of Mr. Rock's current
address.
13
2. Identify those represcntativcs of Plaintiff who had any involvemcnt in the
negotiation of Lease Two, in so doing state each such individual's full name, addrcss, and
job description or title.
ANSWER:
Mr. Philip W. Guarneschelli
Director of Gencral Serviccs
Capital Health Systcm
409 South Second Strcct
P.O. Box 8700
Harrisburg, PA 17105-8700
Mr. Steven Rock
Chief Operaling Officer of Subsidiary Organizo1tions
Present address unknown
After reasonable investigation, Plaintiff bclieves that Mr. Rock Is currently employed
by Keystone Health Plan but is uno1ware of Mr. Rock's current addrcss.
14
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PATIENT IDENTlFICATICN
NARRATIVE PRO~RESS NOTES
PAGE
FILE NO.
CtlR,.fG'rVr ~41CC/-/ CI7J;Of() ~CS
DATE
~TS
Form 1009
6. State the approximatc or average number of patients seen on a daily basis at
Plaintiff's offices since January of 1992. If you claim such information is unavailablc, state
a good faith estimate of a range of numbers fairly represcnting the numbcr of patients sccn
on a daily basis at the Premiscs.
ANSWER:
The Plaintiff is unable to provide an average number of patients scen on a daily basis
as the number of paticnts varics grcaUy depending on such factors as the timc of year, thc
number of doctors working on a givcn day, and othcr factors. Further, an avcrage docs not
rcprcsent the number of parking spaces actually being used by the Plaintiff's employees and
patrons. The Plaintiff has provided to the Defcndant as part of its rcsponse to Defcndant's
Requcst for Production of Documcnts the patient statistical sheets for the Camp Hill Family
Practice Centcr from October 1992 to December 1995, and said documents are incorporated
hcrcin by refcrence.
18
7. State the approximate or average number of paticnts physically present at
Plaintifrs offices on the Premises at anyone given time throughout any reprcsentative day.
If you claim such information Is unavailable, state a good faith estimate of a range of
numbcrs fairly representing the numbcr of paticnts seen at anyone given time on the'
Premises.
ANSWER:
On average, and as an estimatc, the numbcr of patients physically prcscnt at
Plaintifrs offices on the premiscs at a givcn time ranges from 10 to IS.
19
8. Identify all documents, including the statemcnt and curriculum vitae of any
cxpert witncss, which you intcnd to introduce as evldcnce at trial.
ANSWER:
I) All documents attached to Plaintlrrs Complaint and Reply to New Matter with
Countcrclaim.
2) Plaintiff will supplcment its response to Interrogatory 118 in the evcnt it obtains a
statement or curriculum vitae from any cxpert witness which it intends to introduce,
20
9. With respect to these Interrogatories, identify all persons who participated in
the preparation of or who provided information regarding the answers to each of these
Interrogatories.
ANSWER:
Phil Guarneschelli
Carol A. Hclt
Dean A. Weidner, Esquire
Thomas A. Hutton, Esquire
WIX, WENGER & WEIDNER
BY:~~~'~ C).~d~
Dean A. Weidner, Esquire
J.D. # 06363
Thomas A. Hutton, Esquire
J.D. # 65853
508 North Second Street
Post Office Box 845
HarriSburg, PA 17108.0845
(717) 234.4182
Attorneys for Plaintiff
DATE: January 12, 1996
21
HHHINT.ANS JVA JonuQry 1" 1996
VERIFICATION
I, Philip W. Guamesche1li, Director of Integrated Serviccs of Harrisburg
Medical Managcmcnt, Inc., a Pennsylvania corporation, have read the forcgoing document
and hercby affirm and verify that it is true and corrcct to thc bcst of my pcrsonal knowledge,
information and belicf. I verify that all of the statcmcnts madc in thc forcgoing document
are true and correct and that false statcments made thercin may subjcct mc to the penalties of
18 Pa. C.S. ~ 4994, rclating to unsworn falsification to authorities.
HARRISBURG MEDICAL MANAGEMENT,
INC.
By.
Philip W. Guamesche1li
Director of Intcgrated Services
DATE: JQr\LlO,:~'~ II, 14%.
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HARRISBURG MEDICAL
MANAGEMENT, INC.,
Plainti ff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNT, PENNSYLVANIA
v.
DOCKET NO. 95.1851 Equity Term
ROGER C. PETRONE,
Defendant
CIVIL ACTION. EQUITY
~ERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Answers to Defendant's First Set
of Interrogatories to Plaintiff was sent via first.c1ass, postage-prepaid mail this day to the
following:
Mark D. Bradshaw, Esquire
Eckert Scamans Cherin & Mellolt
One South Market Square Building
213 Market Street
Harrisburg, PA 17101
WIX, WENGER & WEIDNER
By:~(~,t...\ t):<t..bm
Dean A. Weidner, Esquire
J.D. # 06363
Thomas A. Hulton, Esquire
J.D. # 65853
508 North Second Street
Post Office Box 845
Harrisburg, PA 17108-0845
(717) 234-4 I 82
DATE: January 12, 1996
CERTIFICATE OF SERVICE
I, Mark D. Bradshaw, Esquire, hcreby ccrtify that I am this day scrving a
copy of the foregoing document upon the person(s) and in the manner indicated below, which
service satlsfics the requirements of the Pennsylvania Rules of Civil Procedure, by dcpositing
a copy of the same in the United States Mail, Harrisburg, Pcnnsylvania, with first-class
postage prepaid, as follows:
Dcan A. Weidner, Esquire
Thomas A, Hutton, Esquire
Wix, Wenger & Weidner
508 North Sccond Strcet
Harrisburg, PA 17108-0845
ECKERT SEAMANS CHERIN & MELLOTT
~
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Mark D. radshaw, Esquire
Supreme Ct. I.D. 1/61975
Christopher M. Cicconi, Esquire
Supreme Ct, I.D. 1119331
One South Market Square Building
213 Market Street
Harrisburg, PA 17101
(717) 237.6000
Jlt\TED:~L ~ (1ft,
Attorneys for Defcndant
Roger C. Petronc
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PRAECIPE FOR LISTI:--lG CASE FOR "\RGlJ~IE:-:T
\~(USl be typewritten .1l1d submitted in duplic3le I
TO THE PROTHONOTARY, OF Cl:~IBERL,.\:IjD COL'~TY:
Ple:lSe :lll the within matter for :he neXI:
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p:e- Tn:ti Ar~Um~nt C ':Ul't
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----------------------------------------------------------------------
CAP1'ION OF C.-\SE
(e~tlre caption mUlt be slaled in iuUl
Harrisburg Medical Management, Inc.
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Petrone -'
Roger C. ."
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(~iend:lIll) !
VS. .:";,
So, 95-1851
Cil'il Equi tv
: 9 1995
I. Stale matter 10 be argued O. ~.. plaintiffs motion :'or new mal,
defend31l1's demurrer to ~omplainl. elc,):
Defendant's Motion for summary Judgment
. Identify cowuel who wl1lngue C:lSe:
(a) for ,laim!!'i: Dean fl. \~eidner, Esquire, Thomas A. Hutton, Esquire
Address: 508 North Second Street, Harrisburg PA 17101
(b) for deiendanl: Mark D. Bradshaw, Esquire
Address: 213 Market Street, P.O. Box 1248, Harrisburg PA l7108
J. I will nOllfy :UI ,arnes in .....ritln~ 'vl:hln IWO jays :hal :l1ll ~:lSe h:lS !leen
Umd for :ugumenl, ~
4.
Argument Court Date:
Call of Argument List
April 1~'$96 \:
Date: 1 ,3:~:;\
~ ',--
i.\llorney :'or Defendant
Mark D. Bradshaw, Esquire
Dsted: 3/27/96
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ECKERT SEAMANS CHERIN & MELLOTI
BY:
~~)~
Mark D. Bradshaw, Esquire
Attorney 1.0. No. 61975
One South Market Square Building
213 Market Street
Harrisburg, PA 17101
(717) 237-6000
Attorneys for Defendant
Roger C. Petrone
2
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ms.m.UC'I'IONS
I,
The following Instructions and definitions form an integral part of these
I'
I
Intcrrogatorles, and tho intcrrogatorles are to be rcad in accordance with these instrUctions
and definitions.
I. "()ocumcnt": The term "documcnt" mt.lns any written, printed, typed,
or olhcr graphic mallcr of any kind or nature, howevcr produced or reproduced, whcther sent
or received or neither, Including drafts and copies bt.'U"ing not.ltions or marks not found on
the original, andlnciudes, but Is not limited to:
(a) all contracts, agreemcnts, representations, warranties,
certificates, opinions,
(b) alllellers or other forms of correspondence or communication,
Including cnvelopes, notes, telcgrams, c.lbles, telex messages,
messages (including rcportsj notes, not.ltions and memoranda of
or rclating to telephone conversations or conferenees),
(e) all memoranda, reports, test results, financial statements or
rcports, notes, transeripts, tabulations, studies, analyses,
evaluations, projections, work papers, corporate records or
copies thercof, lists, comparisons, questionnaires, surveys,
charts, graphs, summaries, extracts, statistical records,
compilations,
(d) all desk calendars, appointment books, diaries,
3
(e) all books, articles, press releases, magazines, newspapers,
booklets, circulars, bulletins, notices, instructions, manuals,
(f) all minutes or transcripts of all meetings,
(g) all photographs, mlcrof1lms, phonographs, tapes or other
records, punch cards, magnetic Iapes, dises, data cells, drums,
print-outs, and other data compilations from which information
can be oblained.
....
II. "Communication": The term "communication" means not only oral
communications but also any "documents" (as such term is defined in paragraph I above),
whether or not such document or the information contained thcrein was transmitted by its
author to any other person.
III. "Identify" , "Identity" or "Identification":
A. When used in reference to a natural person, the terms "identify",
"identity" or "identification" mean to provide the following Information:
(i) full namej
(ii) present or last known business and residence addressesj
(iii) prcscnt or last krlown business affiliation; and
(iv) prcscnt or last known business position (including job title and a
description of job functions, duties and responsibilities).
B. When used with reference to any entity other than
a natural person, slate:
(i) its full name;
(Ii) the address of its principal place of business;
4
.,
hcreol) each source thereof Including but not limited to c.1ch documcnt, oral communication,
act, action, activity, accounllng, ncgotiatlon, practice, process, occurrence, occasion, course
of conduct, happcning, relationship, schcme, confcrcnce, discussion, development, service,
instance, incident, evcnl, calculation and computation upon which you rcly with respect
thcreto.
VI. 'Relates to' or "thercto": The tcrms 'rclatcs to' or "thereto',
'relating to' or 'therclo" when used In connection with any act, action, activity, accounting,
practice, process, occurrence, occasion, course of conduct, contractual provision or
document, happcning, relationship, scheme, confercnce, discussion, development, service,
instance, incident, event, elc., means used or oceurring or refcrred to in the preparation
therefore, or in the course thereof, or as a consequcnce thercof, or rcferring thcrcto.
VII. Answer by 'Reference to Documents: If any interrogatory is answcred
by reference to a document or group of documents, with rcspect to cach such interrogatory
answer, idenllfy (as dcfined in paragraph m(C) hcreof) the specific documcnt or documents
containing the requested infonnation.
VIII. 'Person": The term "pcrson" means all natural persons, corporations,
partnerships or other busincss associations, public authoritics, municipal corporations, state
governments, local governments, all governmcntal bodies, and all other Icgal entities.
IX. 'plalntiff(s)'. "YoU". or "Your": The tenns 'Plaintiff(s)", "you", or
"your" shall refer to Plaintiff Harrisburg Medical Managemcnt, Inc. as well as any
rcprcscntative acting on behalf of Plaintiff, unless the interrogatory requests information from
the individual Plaintiff. The word "reprcscntative" shall be liberally construed and shall
8
(11) The name, title, address and telephonc number of cach
addressee on the documcnt as well as the same for cach
person rccciving a copy of the documcntj
(i)
The prcsentlocation of the document and the name and
address of thc custodian of the documcnt;
f
I'
I
(j) If a document is not an original, the location, name and
address of the custodian of the original; and
(k) Any other dcsignation necessary to idcntify the documcnt
for pUrPOses of obtaining a copy thcrcof.
B. The tcrm "documents' when used herein shall mean all written, typed, '
printed, recorded or graphic matter of every type and description, however and by whomcver
prepared, produced, reproduced, disseminated or made, in any form, now or formcrly in the
possession, custody, or control of the party to whom this Request is addressed, its officers,
agcnts, employees and attorneys, or any of them, including, but not limited to letters, '
correspondcnce, telegrams, memoranda, records, minutes of all types of meetings, contracts,
subcontracts, agreements, intra and interoffice communications, purchase orders,
requisitions, plans, studies, summaries, analyses, results of investigations, reviews, bulletins,
proposals, estimates, appraisals, recommendations, critiques, trip reports, engineering
calculations, bills of materials, drawings, sketches, blueprints, charts, indices, notices,
diaries, books, desk calendars, appointment books, messages, instructions, work
assignments, notes, notebooks, tape recordings, panial or complete reports of telephone
conversations, photographs, slides, public statements, newspapcr or other media releases,
public and governmental filings, opinions, and any other writings, drawings or recordings.
If any document was, but is no longer, in the possession of the party to whom this Request is
addressed or subject to such party's control, idcntlfy the document.
c. When used herein, the tcrm "person" ~hall mean any individual,
partnership, joint venture, firm, association, cOrPOration or business or any governmental or
legal entity.
D. When used herein, the term "communication" shall mean any and all
transmissions of infonnation, the Information transmitted, the process by which the
Infonnation Is transmitted and the tenn shall expressly be inclusive of all wrilten and oral
communications.
E. When used herein, the term "relate to", "relating to' or 'in relation to"
shall mean constituting, reflecting, representing, supporting, contradicting, referring to,
stating, deseribing, recording, noting, embodying, containing, mentioning, studying,
analyzing, discussing, evaluating, or relevant to. As indicated, the term necessarily includes
11
information which is in opposition to as well as in support of the position(s) and c1aim(s) of
the party to whom the Request Is addressed.
F. When used hcrein the term "reflect" shall mean embody, contain,
record, note, refer to, relate to, describe, be relevant to, state or mention.
G. The term 'Lease One" shall mean the commercial lease executed by
and between Plaintiff and Defendant on or about May 20, 1992 for approximately 4,600
square feet of office space, together with certain parking rights, located at 4076 Market
Strcet, Camp Hill, PA 17011.
H. The term 'Lease Two" shall mean the commercial lease executed by
and between Plaintiff and Defendant on or about January 29, 1994 for approximately 1,155
square feet of office space, together with certain parking rights, located at 4076 Market
Street, Camp Hill, PA 17011
I. The term "Premises' shall mean the commercial office building located
at 4076 Market Street, Camp Hill, Cumberland County, Pennsylvania and shall include, for
the purpose of thesc interrogatories, all common areas, parking areas, further Including those
parking spaces which remain at issue between the parties.
J. The term 'Complaint" shall mean Plaintifrs Complaint in the captioned
action filed on or about April 11, 1995.
K. The term "Reply to New Matter' shall mean Plaintifrs Reply to New
Matter In the captioned action filed on or about June 26, 1995.
L. TIle masculine terms contained herein shall be construed to Include the
feminine and/or neuter, as the content requires. Thus, "he" shall be construed to include
"she" and/or 'it."
M. Words in the singular shall include the plural thereof. Thus, 'person"
shall Include "persons'.
12
4. Idcntify each and evcry spccific rcprescntation made by any rcprescntative of
Defendant to any representative of Plaintiff rcgarding the availability and adequacy of
parking at the premiscs during negotiations for Lease One. In so doing, identify:
(a) when each such representation was madej
(b) by whom such rcpresentation was made;
(c) to whom such rcprescntation was made; and
(d) the precise contcnt of the represcntation.
ANSWER:
In approximately February of 1992, and prior to the parties entering into Lease One,
Phil Guarneschelli, Plaintiff's representative, walked around the subject propcrty with Steve
Rock, Plaintifrs then Chief Operating Officer of Subsidiary Organizations, Dave Sarcone,
Plaintifrs Vice President of Subsidiary Organizations, the Defendant and Dick Kleiman, the
Defendant's realtor. Mr. Guarneschelli specifically inquired of the Defendant whether all of
the parking spaces on the property were available for use by a tenant of the premises, The
Defendant and Mr. Kleiman (bascd upon the information provided to him for the real estate
listing) represented that all spaces were available for use by a tcnant.
Furthcr, the Defendant's agent, Dick Kleiman, provided a real estate listing of the
Property to the Plaintiff describing the amenities and dlmcnsions of the Property. This
listing is dated August 1, 1991, was provided to Plaintiff prior to its entering into Lease One,
and is attached to Plaintifrs Reply to New Matter and Counterclaim as Exhibit F. The
Plaintiff believes, and therefore avers, that the contcnt of the listing was approved by the
Defendant.
16
V1-V'-1Q~V &~.~.
,-. ...... --..-
'i /~!9/.t;
PATIENT IDENTlFICATla-J
NARRATIVE PROGRESS NOTES
PAGE
FILE NO.
Cd,f;'G'1Vr ;::/J1CCfI E/lJjJt~ ~CS
DATE
cCMYCNTS
9. With respect to these Interrogatories, identify all persons who participated in
the preparation of or who provided information regarding the answcrs to cach of these
Interrogatories,
ANSWER:
Phil Guarneschelli
Carol A. Helt
Dean A. Weidner, Esquire
Thomas A. Hulton, Esquire
WIX, WENGER & WEIDNER
BY:&~~'-~~\ ~~d~
Dean A. Weidner, Esquire
I.D. # 06363
Thomas A. Hulton, Esquire
I.D. # 65853
508 North Second Street
Post Office Box 845
Harrisburg, PA 17108-0845
(717) 234-4182
Attorneys for Plaintiff
DATE: January 12, 1996
21
H""INT.AN5 JVA January 11. 1996
)
VERIFICATION
I, Philip W. Guarneschelli, Director of Integratcd Services of Harrisburg
Medical Management, Inc., a Pennsylvania corporation, have read the foregoing documcnt
and hereby affirm and verify that it is true and corrcct to the best of my pcrsonal knowledgc,
information and belief. I verify that all of the slatcmcnts made in the forcgoing document
are true and corrcct and that false statcments made thcrcin may subject me to the pcnalties of
18 Pa, C.S. 94904, rclating to unsworn falsification to authoritics.
HARRISBURG MEDICAL MANAGEMENT,
INC.
By.
Philip W. Guarncschelli
Director of Integrated Services
DATE: JC/"'L(()_V.\ II, I (j(lI..
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HARRISBURG MEDICAL
MANAGEMENT, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 95-1851 EQUITY TERM
v.
ROGER C. PETRONE,
Defendant
CIVIL ACTION - EQUITY
PLAINTIFF'S BRIEF AND OPPOSITION TO
DEFENDANT'S MOTION FOR 8UMMARY JUDGMENT
I. BACRGROUND.
On May 20, 1992, Plaintiff executed a lease with the Defendant
(the "Lease") for the use of approximately 4,600 square feet of
commercial office space located 4076 Market street, Camp Hill,
Pennsylvania (the "Premises"). According to the express terms of
the Leas~, the Plaintiff contracted for the right to use of 4,600
square feet and, among other amenities, "the non-exclusive right to
use all common areas including hallways, walkways and parking areas
on an \ as available' basis." The Lease is attached Exhibit A to
Plaintiff's Complaint. The Lease between the parties was to take
effect in August 1992, at which time the Plaintiff would begin
using the Premises ~s a Medical Office (Camp Hill Family Practice) .
Before entering into the Lease with the Defendant, the
Plaintiff's representative met with the Defendant and Defendant's
real estate agent on numerous occasions to discuss the property.
At these meetings, the Plaintiff inquired of both the Defendant and
Defendant's real estate agent as to the adequacy and availability
of the parking spaces which serve the building.
The Defendant
stated that all parking spaces on the Premise were available for
1
adequate for Plaintiff's purposes. The Defendant's assurances were
complemented by the Defendant's real estate agent and the real
estate listing for the property which explicitly stated that
seventy-five (75) parking spaces were available for use by a tenant
of the property. The real estate listing is attached as Exhibit F
to Plaintiff's Reply to New Matter and Counterclaim. Based upon
these representations, the Plaintiff executed the Lease.
Shortly after the Plaintiff began its occupancy, the Plaintiff
noticed an appreciable shortage of parking spaces. Plaintiff also
noticed that the Defendant had reserved twenty (20) of only seventy
(70) available spaces for private parking in violation of the
Lease. When the Plaintiff informed the Defendant of the shortage
of parking spaces, the Plaintiff learned that the Defendant was
Leasing parking spaces to other tenants of the building on an
exclusive basis. The Defendant also recanted prior statements, and
the express provisions of the Lease, and stated that he would not
provide Plaintiff with access to all parking spaces on the property
on an "as available" basis, as is provided in the Lease.
Subsequent to the Defendant's usurpation of the common area
parking spaces, the Plaintiff demanded the right to use the parking
spaces on numerous occasions and the Defendant refused. The
Plaintiff also attempted on a number of occasions to reach an
agreement with Defendant which would alleviate the parking
shortage. These attempts have proved futile.
During this time the parties successfully negotiated an
additional lease whereby the Plaintiff agreed to rent from the
2
Defendant an additional 1,255 square feet on the property. During
negotiations of the second lease, the parties never resolved the
parking issue. The facts set forth above are corroborated by the
pleadings in this matter and by Plaintiff's response to Defendant's
Interrogatories which have been filed with this count.
On April 11, 1995, having exhausted all other options, the
Plaintiff filed suit against the Defendant seeking to enforce the
terms of its Leases with the Defendant regarding parking. On
February 27, 1996, the Defendant filed a Motion for Summary
Judgment. For the reasons set forth in this Brief, the Defendant's
motion should be denied.
II. ARGUMENT.
A. PLAINTIFF HAS STATED A PROPER CLAIM OF REY..IEF AND IS
ENTITLED TO ENFORCE THE TERMS OF ITS LEASES.
In his Motion for summary Judgment and his brief and support,
the Defendant has offered a litany of excuses in an attempt to
justify his actions and breaching the leases. The Defendant's
excuses, while creative, are calculated to deflect this Court's
attention away from the most simple and obvious fact: the
Defendant breached its Leases with the Plaintiff. Plaintiff's
complaint seeks redress for this breach. At the very least there
are a number of unresolved factual and legal issues which make
summary judgment inappropriate.
The Leases expressly state that the Plaintiff has the right to
use all common areas parking on an "as available" basis. The
J
factual and legal issues before this court, therefore, are what is
"common area" parking, and what does the plaintiff's right to use
the parking spaces on an "as available" basis mean. To the extent
these issues are not factual, it is the Plaintiff, not the
Defendant, who is entitled to judgment as a matter of law.
In the instant action, the Plaintiff is seeking to enforce its
right to use all parking spaces on an "as available" basis,
regardless of whether or not new parking spaces will be created by
the Plaintiff's action, the Plaintiff has averred that more parking
spaces will be available on a daily basis for use by the
Plaintiff's employees and patients if it is successful.
Incredibly, the Defendant alleges that the relief being sought
by the Plaintiff will not benefit the Plaintiff. The Defendant's
argument is wholly unsupported by the facts and the Defendant has
no authority to contradict Plaintiff.
By opening up all of the parking spaces for use by tenants and
patrons of the property, the Plaintiff's employees and patients
will be able to use any vacant parking space, including those which
are currently "reserved". The Defendant's opinion that these
parking spaces may be too far away from the entrance for
Plaintiff's purpose is untrue and contrary to Plaintiff's position.
What the Defendant fails to recognize is that these "reserved"
parking spaces are much closer than those which are located across
the street or a neighboring lot. Further, the Defendant fails to
address the fact that Plaintiff's employees and patients are not
permitted to park in neighboring lots. The Plaintiff has made the
4
, '
determination that a first-come, first-serve parking system, as is
set forth in its Leases, is the best way for it to operate on the
Premises and it is entitled to enforce its right to such an
arrangement under the leases.
The Defendant's position is further weakened by his misplaced
reliance 011 a memo offered by the Plaintiff's representative, Phil
Guarneschelli. In the memo cited by Defendant, Mr. Guarneschelli
states "we have only a few options, one is to take him [the
Defendant] to court but I don't know what we could expect."
Defendant's brief at Plaintiff's legal options do not terminate
because Mr. Guarneschelli could not foresee into the future or
guarantee his complete satisfaction with the results. The courts
do not require such certainty to proceed with a valid claim.
Given that the Defendant's position is a wholly unsupported by
the facts and because this court must view the evidence in the
light most favorable to the Plaintiff, this Court must deny the
Defendant's request for summary Judgment. Spain v. vicente 315 Pa.
Super. 1~5, 461 A.2d 833 (1983)
B. PLAINTIFF'S CLAIMS ARE TIMELY.
The Plaintiff filed the instant action well within its current
lease term in order to seek redress for the damages caused by the
Defendant. The impact of the Defendant's breach of the leases
continues to have substantial an immediate, negative impact on the
Plaintiff's leasehold interest business on a daily and continuing
basis.
5
The plaintiff has not delayed in the pursuit of its right to
the parking spaces and any perceived "delay" has been both minimal
and inconsequential. The only "delay" to which the Defendant could
possiblY be referring is to the Plaintiff's decision to forebear
litigation in the hopes in resolving this matter with the Defendant
amicably. Rather than rushing to court to enforce its rights, the
Plaintiff made many attempts to negotiate a settlement of the
parking dispute with the Defendant.
The negotiations first involved the Defendant agreeing to
permit the plaintiff to have access to eight (8) of the parking
spaces in question on a temporary basis. Despite the Defendant's
agreement, the Defendant failed to comply with the terms.
subsequently, the plaintiff and Defendant undertook efforts to have
the parking lot re-striped to create more parking spaces, and to
comply with the Hampden Township zoning ordinance. This also
provided unsuccessful. Lastly, the plaintiff and Defendant
executed a temporary agreement whereby Plaintiff would be given
access to two (2) of the parking spaces at issue. The parties
entered into this agreement on March 18, 1994 without prejudice to
their rights in order to alleviate the parking shortage created by
the Defendant. The Plaintiff attempted to live with this
arrangement until the parking situation failed to improve. After
additional attempts of negotiating a mutually satisfactory
settlement to the Defendant's breach, the Plaintiff filed the
instant action on April 11, 1995.
6
The Defendant's claims of untimeliness are further factually
inaccurate. The Defendant alleges in his Motion for Summary
Judgment and Brief that the Plaintiff complained to the Defendant
about the parking shortage as early as February 1992.
As the Plaintiff did not become a tenant of the Premises until May
1992, it is pure fiction to allege that the Plaintiff was
complaining of a shortage of parking even before it executed its
lease. It is no wonder that the Defendant believes there was a
delay when he is using the incorrect years in his calculations.
The Defendant, himself, contributed to any perceived "delay"
resolving this matter at by misrepresenting the facts. The
Defendant stated that the parking spaces were a limited common
elements of a condominium which has never been created) in the
hopes of forestalling Plaintiff. See Exhibit A to Plaintiff's
Brief.
The facts of this case, as set forth above and in the record,
viewed in a light most favorable to the plaintiff, require this
Court to find that there is a material fact as to whether the
Plaintiff acted in a timely fashion. There is simply no evidence
before this court for it to conclude that the Defendant is entitled
the judgment as a matter of law. Accordingly, this court should
deny the Defendant's Motion for Summary JUdgment.
C. THE PLAINTIFF'S FRAUD CLAIM IS NOT BARRED BY THE STATUTE
OF LIMITATIONS OR THE DOCTRINE OF LACHES.
7
the judgment as a matter of law. Accordingly, this court should
deny the Defendant's Motion for summary Judgment.
C. THE PLAINTIFF'S FRAUD CLAIM IS NOT BARRED BY THE STATUTE
OF LIMITATIONS OR THE DOCTRINE OF LACHES.
The questions raised by the Defendant in the instant motion is
whether, as a matter of law, the Plaintiff's action for fraud is
barred by the statute of limitations.
It is a longstanding tenet of Pennsylvania law that statutes
of Limitation are "not controlling in equity" but only "provide
guidance and determining the reasonableness of any delay." United
National Insurance company v. J.H. France Refractories 1995 W.L.
701612, Kay v. Kay 460 Fa. 685, 334 A.2d 58 (1975) This is the
rule in Pennsylvania because "equity depends on flexibility"
United National Insurance company, 1995 W. L. 701612 *5. Therefore,
it is c~ear, under the Pennsylvania supreme courts holding in
united National Insurance company that the Plaintiff's fraud claim
is not even subject to, let alone barred by the statue of
limitation. The Defendant argues that the Plaintiff "dressed up"
its action to sound in equity in order to circumvent the statue of
limitation. This is a mistake of both fact and law. The
Plaintiff's claim is based on the enforcement of its right to real
property, which has always been within the province of the courts
of equity. See, Eckman v. Comm. Dept of General Services 526 Pa.
623, 587 A.2d 13B9 (1991)
8
resulted in prejudice to the Defendant. Olsen v. North American
Industrial supply, Inc., 411 Pa. Super. 598, 658 A.2d 358 (1995).
The Defendant has alleged none of these matters and has only
alleged untimeliness, generally. As the Defendant bears the burden
of proof and must establish a clear right to relief as a matter
law, it would be inappropriate for this Court to dismiss the
Plaintiff's fraud claim in the absence of any supporting
information.
Even if this Court finds that the Defendant properly raised
the issue of Laches, the record is clear that the Plaintiff has
diligently in prosecuted its claim and the Defendant has not been
prejudiced. The Plaintiff first began experiencing a parking
shortage in early 1993. Shortly thereafter, the Plaintiff's
counsel forwarded a letter to the Defendant in the hopes of
resolving the parking issue. (See Exhibit C to Plaintiff's
complaint) In fact, the Plaintiff, continually took steps
attempted to resolve this matter amicably. It was not until early
1995, when the parking situation, failed to improved despite
numerous measures to resolve the situation that the Plaintiff
realized it would be forced to litigate the issue to receive any
relief.
The Plaintiff has corne to this Court as a last resort. The
Plaintiff has at all times continuously pursued the parking issue
raised herein and has not delayed in the prosecution of its claim.
The Plaintiff has attempted to avail itself of all possible
remedies short of litigation and gave each proposed solution the
9
opportunity to take effect. When the parking situation did not
improve, the Plaintiff filed the instant suit seeking the equitable
intercession of this Court and damages.
Finally, any perceived "delay" can be attributed to the
Defendant's continuing misrepresentation of the facts concerning
the parking area (e.g. the legal nature of the parking spaces and
the parking lots' compliance with township ordinances) Equity
demands that the Plaintiff be given the opportunity to present its
case where the Plaintiff has acted reasonably in waiting and where
the Defendant has affirmatively misrepresented the facts to stall
the Plaintiff.
Because the Defendant has failed to produce any evidence that
the Plaintiff's claim is barred by the statues of Limitation or
Laches, the Defendant is not entitled to a matter of law and the
Defendant's Motion for Summary Judgment must be denied.
D. PLAINTIFF HAS NOT WAIVED ITS RIGHT UNDER THE LEASES AND
HAS NOT ESTOPPED FROM ENFORCING ITS RIGHTS.
The Plaintiff's execution of a subsequent lease for additional
space and the agreement for the use of two parking spaces does not
provide the Defendant with any meritorious defense to the
Plaintiff's action.
In his Motion and Brief the Defendant asserts the defenses of
ratification, estoppel and waiver. The law does not permit, and
this Court should not allow, the Defendant to scurry behind these
equitable defenses.
10
1) Ratification
The equitable defense of ratification does not act to
deny the Plaintiff's request to relief. Ratification has the
effect of expressly confirming and otherwise voidable act. Black's
Law Dictionary, Ratification, Fifth Ed. P.35. In the instant case,
the plaintiff's execution of a subsequent lease for additional
property was not an acceptance of the Defendant's parking
arrangement. The Plaintiff and the Defendant executed another
lease in January, of 1994 whereby Plaintiff rented an additional
1,255 square feet of space. The terms of this subsequent Lease did
not broaden, restrict, or clarify the Plaintiff's rights to
parking. See Exhibit E to Plaintiff's Complaint. In fact, the
Plaintiff's right to parking under the second lease were exactly
the same as the first. At no time did the Plaintiff approve the
Defendant's breach as it related to parking spaces. Throughout
this dispute, the Plaintiff has been single-minded and persistent
and its position that the Defendant's breach has never been
resolved.
Further, the Plaintiff's execution of an agreement to use two
of the "reserved" parking spaces cannot have the legal effect of
nullifying the Plaintiff's rights under the leases. The agreement
to which the Defendant refers in his Brief was executed for no
consideration and provides that it was terminable by either party.
It is obvious the agreement was intended to be a temporary
resolution of the situation which would be not binding on either
party if' it produced unsatisfactory results.
11
"
While the Doctrine of Ratification serves a useful purpose in
the courts ot equity, that purpose is not to discourage aggrieved
persons from attempting to resolve their differences short of
litigation. simply stated, the Doctrine of Ratification does not
apply because the Plaintiff never agreed that the execution of the
agreement would fully and finally resolve the matter as is alleged
by the Defendant.
The agreement executed by the party was merely
an attempt by the parties to resolve the Defendant's breach at in
the most efficient and non-binding manner.
Based upon the facts of record, which are in dispute, it is
inappropriate for this Court to hold that there are no issues of
material fact and that the Defendant is entitled to judgment as a
matter of law. Accordingly, the Plaintiff respectfully requests
that this Court deny the Defendant's Motion for Summary Judgment.
2) Waiver
The Plaintiff has not waived its legal right to seek redress
against the Defendant for his breach of the lease.
The Defendant's brief sets forth an accurate definition of
waiver which was set forth by the Commonwealth Court in Keenan v.
Scott Township Authority infra as follows:
[a] waiver in law is defined as the act of intentionally
relinquishing or abandoning some known right,
claim or privilege. To constitute a waiver of a legal
right, there must be a clear, equivocal and decisive act
on the party who is claimed to have waived its rights,
with knowledge of such right and an evident purpose to
surrender it.
12
, .
The plaintiff has not waived its legal right to seek redress
against the Defendant for his breach of the lease.
The Defendantis brief sets forth an accurate definition of
waiver which was set forth by the commonwealth Court in Keenan v.
Scott Township Authority infra as follows:
[al waiver in law is defined as the act of intentionally
relinquishing or abandoning some known right,
claim or privilege. To constitute a waiver of a legal
right, there must be a clear, equivocal and decisive act
on the party who is claimed to have waived its rights,
with knowledge of such right and an evident purpose to
surrender it.
Keenan 151 Pa Commw. 225, 616 A.2D 751, 755 appeal denied 535 Pa.
671, 634 A.2d 118 (1992). The Plaintiff has never intentionally
relinquished or abandoned its legal rights to enforce its rights to
parking under its leases.
The second lease executed by the
Plaintiff contains the exact same provisions on the subject of
parking as the first and provided plaintiff with no less or more
rights. In no event did the plaintiff intentionally, clearly, or
equivocally, waive its rights to use all the common area parking.
The Plaintiff merely agreed to proceed under the same terms and
seek redress later if necessary.
Neither the agreement nor the execution of the second Lease is
evidence of a clear, and intentional act whereby
plaintiff
abandoned its rights.
In fact, the clause in the agreement
allowing either party to cancel the agreement within thirty (30)
days notice is express evidence of the equivocal, temporary, and
uncertain nature of the agreement.
13
The Defendant's Motion for Summary Judgment must be denied
because the Plaintiff did not waive its rights to enforce the
provisions of the leases and the Defendant is not entitled to
judgment as a matter of law.
III. EOUITABLE ESTOPPEL.
The Defendant cannot be entitled to invoke the Doctrine of
Equitable Estoppel for two obvious reasons: First and foremost, the
doctrine does not apply. Second, Defendant's continued bad faith
intentionally depriving the Plaintiff of its right to parking,
prohibits the Defendant from invoking the equitable protection of
this Court.
The Doctrine of Equitable Estoppel was designed to prevent an
unfair result and only applies when the following circumstances are
present
the party sought to be estopped: 1) must have
intentionally or negligently misrepresented some material
fact, 2) knowing or having reason to know the other party
would justifiably rely on the misrepresentation and 3)
inducing the other party to act to his detriment because
,of his justifiable reliance on the misrepresentation.
Orsato-Guenon, Inc. v. commonwealth, 665 A.2d 520 Pa. Comlllw.
(1995), citing yurick v. commonwealth, 130 Pa. Commw. 487, 497, 568
A.2d 985, 990 (1989).
In the instant matter, the Defendant has not produced any
evidence, as to what the plaintiff has misrepresented or as to how
the Defendant justifiably relied on any misrepresentations. While
14
the Defendant has stated in his Brief that it did enter, into
agreement with other tenants concerning use of the parking spaces,
it is the Defendant's aqreement with these other persons which
precipitated this lawsuit. The Defendant first entered into the
exclusive parking agreements with tenants restricting the
Plaintiff's use of the parking lot and then the parking shortage
arose. It is factually inaccurate for the Defendant to argue the
converse.
Second, it is a cornerstone of the courts of equity that those
who seek equity, must do equity. Sheaffer v. Sprunks 298 Pa. 27,
147 A. 838 (1929). This longstanding rule applies not only to
plaintiffs but to Defendants asking for affirmative relief.
Fullman v. steel city Electric Co., 2 F 2d 4 (1925).
In the case before this Court, the Defendant has acknowledged
that he stripped the Plaintiff of its ability to use all the
parking spaces on the premises and later lied to the Plaintiff to
justify his actions. Self-dealing, deceit and misrepresentation
are not protected by the courts of equity. Accordingly, this Court
should deny the Defendant's request for summary Judgment on the
grounds of Equitable Estoppel.
15
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January 5, 10ns
Mr, boan A. Weidner
Wix, Wenger (. Weldl1~r
508 NOrlh Second Slreel
Harrl~bufll, pennsylvania 17103
Via lax: 717 n~ 4224
Re: Capital Henllh . Camp Hill Family practice
Dear Mr, Weidner:
In recolpt 01 IhO eorrespondonco dute<l Dcccmtl1r 15. 1994 rcgarolnllll1e abOve rererenct'tt, \nls
leller will terve nollCO os my rebullollo your vaned cMlrns, InlerpretnUons, supposlUons nlld
demands. II was my undcrslanding that this mallor VIas mutually resolved soverel montl1s Bon
whOn I reconngured the pa/klno area to ~~CifiClllly occ;:Jmrnodale Herrlsburg Medical
Manauemenlll1c.'s (HMM) needs, having Incurred expensos In excess of $ 5,000,00 and lurther
aoreed 10 provide two (2) prlvale parttlng $pa=. 1hls conces.~lon obviously was nol
apprecialod as evidenced by Iho lanQuago 01 your loltor ~ervi~ upon I"e during tho hol!day
50ason,
Please be advls~ that I wlli nol be Intin,ldat~ by your thll!M 01 Ihigolllln os your claim is wllhoul
meril. Your rererence to a 'Ioell out . Is ludicrous ana lounlled upon hearsay. H any ar,lion 1$ to
be preclpllal~-d by me. 11 would bo tho InlllaUon 01 eviction plococ-dingr. ngolnsl your clionl
Wiln r~ard 10 Ihe avallnblllly or pall,lng sparos ~I Iho p'omlses, Ihlr. mailer Is rp(]ulnlcd bv
Hampden Township. Oased opon IhOir off.slreot rC{)ulnllon~. Iho propor1y'~ COrnman use pa"''''9
spaces ere In lolal c.ompli~nce. As stipulated 111 tho lea~ aorcomcnls. eomnlon arca lJa,..,,\u
spaces are available on an' u avollalJle . ba~ls,
As 10 100 mailer 01 Iho par1\lng areos 10 Ihe nOlth or Ihe llulldlng \Inder the conopy. thoy ah"~ys
have !Klon. ~nd rC01aln p,rivelt, DOC<Jl11onlallon to this effect exl:rt In the onglnal pro forma
submltlr,'\!to ramlers Bank and Trust In 1\107 ond was part 01 the Cerl1fic.1tc pf "ppral~p, 0'(
William J. Paylor dated Seplemb':!r 4. 1087. The!.O documents were Iho foundollon lor On901'1II1/
and remain In Sllpporl of Ihe tulldlno's rnor103~O, Any devl~lIon Irom my opcrallonnl "lOllS
would be III vlolcllon of my reprcsenllillons 10 Ihe londer,
Furlher. 0 Dccl.1rallon or Condemlnlum was provlou~ly filed and recorded In Iho Cumberland
Counly Coun House which definos the lenn . limited common elemcnls . os nil 01 lhe covered
periling spaces loc.alcd under lhe buiklino as shown on tho plal~ nnd pions os olliaenc.od Ol1ll1e
cncl~se,j reduced orawing, By virtue or oxecuting Ihe Aorcorn~nl Uu 01 privole Parking S~l"'l'~
on Mqrrh 16, 1994 your rJ,c~1 3c.l\nowl~oc tho exJslcncn (,f privatg p.rklnll SP3C~5 IO(,JJ\~\l '","
Ihe prcrnl~~s,
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HARRISBURG MEDICAL
MANAGEMENT, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA
Docket No. 95-1851 Equity Term
v.
ROGER C. PETRONE,
Defendant
CIVIL ACTION - EQUITY
PEFENDANT'S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
I. BACKGROUND
Plaintiffs Complaint in Equity was filed on April II, 1995. This action is essentia\1y
a commercial landlord and tenant dispute, involving a property at 4076 Market Street, Camp
Hill, Pennsylvania (the "Premises"). Plaintiff/tenant's Complaint makes a\1egations of breach
of tenant's right of quiet enjoyment, requests specific performance, and charges Mr. Petrone
(Defendant/landlord) with fraud.
Plaintiffs Complaint, attached to Defendant's Motion as Exhibit "A", essentia\1y
seeks that this Court order Mr. Petrone to strip a\1tenants at the Premises of their right to
utilize assigned parking spaces to the rcar of the Premises. (For the convenience of the
Court, Mr. Petrone's Answer with New Matter and Plaintiffs Reply thereto are also attached
to the Motion as Exhibits "B" and "C" respectively.) Plaintiff leases only five thousand
eight hundred and fifty-five (5,855) square feet at the Premises, out of a total sixteen
thousand seven hundred and forty three (16,743) square feet or only thirty-five (35 %) percent
of the available space in Mr. Petrone's building. ~ Defendant's Request for Admission
No. 12 (Motion, Exhibit "0") and response thereto (Motion, Exhibit "E"). Yet, Plaintiff
advances a claim to the unrestrictcd use of substantially all parking at the Prcmises, to the
exclusion of other tenants and their busincss visitors, well in excess of any utilization which
would be proportional to the percentage of space which is leascd at the Premises by Plaintiff.
~ Defendant's Answer to Plaintifrs Interrogatory No.2 (Motion, Exhibit "F").
As a result of parking pressures at the Premises, (which began following Plaintifrs
arrival at the Prcmises), Mr. Petrone was approached by other tcnants who were dissatisfied
with a lack of assigned parking for their own use. ~ 1iI. To appease his other tenants,
Mr. Petrone, acting reasonably, provided assurances that each would be entitled to utilize a
certain nllmber of assigned spaces under the rear of the building (the "covered spaces"). The
covered spaces have always been considered "private" by Mr. Petrone, and are not "common
areas" as that term is utilized under the Lease. ~ Defendant's Answer to Plaintirrs
Interrogatories, Exhibit "F", 12. In fact, Mr. Petrone at one time considered turning the
building into office condominiums, and even the condo registration documents (which were
ultimately never filed) showed these particular covered spaces as "rescrved" to the owner.
~li1.
This Court should dismiss Plaintifrs Complaint in its entirely for several reasons,
including inter alia, Plaintifrs failure to state a claim upon which relief can be granted,
untimeliness, ratification, waiver, estoppel, and unclean hands,
96l93,1
2
II. ARGUMENT
A.
Plalntlfrs Complaint falls to statc a claim upon any
thcory, becausc cvcn thc rcllcf rcquestcd will not
bcncnt Plaintiff, but rathcr will only Inconvcnlcncc
the othcr tcnants and Plalntlfrs own patlcnts.
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Currently, only building tenants are using the Covercd Spaces eithcr for their own
use, or that of their employees. ~ of the disputcd covered spaces are utilized by
individuals not employed at the Premises. llI, at '7.
This arrangemcnt, put in place by Mr. Petrone in response to the parking pressures
created by Plaintifrs presence at the premises. has several benefits for all concerned,
inCluding, inter alia:
a) by having tenants and their employees park in the Covered Spaces to the
rear of the building, spaces to the front of the building - near the public entrance - are
left vacant for business visitors to the Premises such as Plaintifrs patients;
b) tenants and employees are able to use a private entrance to the rear of the
building, whereas visitors could not;
c) if visitors (and particularly Plaintifrs patients who may be sickly, aged, or
infirm) were to park In the Covered Spaces, such visitors would have to walk up a
hill and completely around the building to get to the front entrance;
d) tenants and their employees are more familiar with the parking layout to
the rear of the building, which is somewhat cramped and could be confusing to a
visitor.
Most importantly, however, even if this Court were to grant the relief Plaintiff seeks,
such a decree would 1121 benefit Plaintiff. No new parking spaces would be created, and no
96193,1
3
parking congestion would be alleviated. To the contrary. all that would occur if Mr. Petrone
were forced to strip his tenants of thei r assigned spaces is that those tenants now consistently
parking out of the way and to the rear of the building in the Covered spaces, would be
forced to park wherever thcy could, including at the front of the Building, nearcst the public
cntrance. As Indicated above, this would not case congestion, bccausc the samc number of
vehicles would still be parking in the same numbcr of parking spaces, The only difference
would be that tenants and employees would lose their ccrtainty regarding the location of their
parking spot, and would lose the convenlcnce of easy access to the private entrance, while
simultaneously visitors and patients would likely have to park further from the public
entrance.
Indeed, even Plalntirrs agcnt, Philip Guarneschelli, Manager, Facilities and
Corporate Real Estate, acknowledged the utter pointlessness of the relief rcquested by
Plaintiff herein in a memo directed to Dave Sarcone, Vice Prcsident of Ambulatory Services
at Capital Health System on Junc 29, 1993. Regarding the parking Issue at the Premises,
Mr. Guarneschelli wrote as foJlows: "no matter how we look at it, it will bc a problem for
us. We have only a few options, one is to take him to court but, if hc has no other parkin!!.
I don't know what we could expect." (cmphasls added). (Motion, Exhibit "G").
As a result, it is c1car that the rclicf Plaintiff sceks will not benefit Plaintiff, yet will
simply harass and inconvcnience all othcrs concerned. Thus, as Plaintifrs own
representative has conceded, Plaintiff's Complaint fails to statc a claim upon which relief can
bc granted. ~ Motion, Exhibit "G". Additionally, greater harm will result from the
9619),1
4
issuance of the decree Plaintiff requests than from the withholding of the So1me, and relief
should also be denied on this basis.
B. All of Plaintiff's claims arc untlmcly brought nnd
rcllcf should bc dcnlcd nud l'lalntlff's Complnlnt
dlsmlsscd for this rcason as wcll.
Plaintiff admits that it had concerns about the adequacy of parking at the Premises
even before it signed the first Lease. ~ Plaintifrs Answers to Defcndant's Interrogatories,
attached hereto as Exhibit "I", '3. Plaintiff also admits that it first complained of a parking
shortage on the Premises as early as February, 1992, and has directcd correspondence to Mr.
Petrone raising the parking issue again and again since that time. Indeed, Plaintiff began
threatening the commencement of legal proceedings and other retaliatory actions against Mr.
Petrone as long ago as June I, 1993. ~ Exhibit "H'". Yet, the instant action was not
brought until April II, 1995. During this unreasonable delay by Plaintiff, Mr, Petrone made
arrangements with the other tenants for the use of the covered spaces in response to the othcr
tenants' insistence upon the same. Also during this unreasonable delay by Plaintiff witnesses
recollections have faded and key witnesses have left Plaintifrs cmploy. ~ Plaintifrs
Answer to Defendant's Interrogatories, (Exhibit "I") at '1.
There is an open question in Pennsylvania law with rcgard to whether or not a delay
which is exccssive, and which in some respects exceeds an applicable statute of limitations,
Implicates a presumption of prejudice such that no detailed showing of prejudice is necessary
by a Defendant in support of this defense. ~ Kindlc v, Com,. State Bd, of Nurse
Examiners, 512 Pa. 44515 A.2d 1342, 1346-9 (1986) (Papadakos, 1. concurring). Indeed,
Justice Papadakos' concurring opinion in Kindle seems to have cven greater vitality today
96l9l,1
5
foJlowing the Supreme Court's decision in Penn Pipin!:. Inc. v. Insurancc Company of North
America, 529 Pa, 350, 603 A.2d 1006 (1992), (adopting a "pcr se" rulc that, given two
years of docket Inactivity, prcjudice would bc presumcd on a Motion for Non Pros). In any
event, even under the majority opinion in Kindle, SllI2m, the "Icngth of delay" by Plaintiff
would be "an important considcration in determining whethcr an individual has been
prejudiced by thc dclay". Thus, Plaintiffs' dclay in instituting this action for ~ is among
the factors which this Court is clcarly entitlcd to consider in determining whether or not
Plaintiffs are entitled to relief. AdditionaJly, however, to the extent any showing of
prejudice is deemed required, that prejudice has been demonstrated, as a result of (a) Mr.
Petrone's having made arrangements in the interim with his other tcnants, which
arrangements include assigned parking, and (b) the current unavailability of certain witnesses
and the fading rccoJlection of others of the key events, which happened as long ago as 1992.
C. At a minimum, Plaintiff's "fraud" claim Is clearly
barrcd by thc appllcablc two-ycar statutc of
limitations.
In Plaintiffs Answer to Defendant's Interrogatories, Plaintiff tcstifies that Mr.
Petrone defrauded Plaintiff through aJleged misrepresentations made "in approximately
February 1992, and I2lli1r to the parties entering into Lease One." ~ Exhibit "I" (emphasis
added). Consequently, the "rcpresentations" forming the basis of Plaintiffs "fraud" claim
must have been made prior to May 20, 1992 (the date of cxecution of "Leasc One").
Thcrefore, the representations upon which Plaintiff relies were unquestionably made more
than two years prior to thc filing of this law suit on April II, 1995, and the claim is
96191,1
6
Defendant's Request for Admissions (Motion, Exhibit "D") and Plaintiffs responses thereto,
(Molion, Exhibit "E"), '8.
As a result, Plaintiffs conduct, in executing a second Lc.lse with identical parking
provisions, after knowing of Mr. Petrone's interpretation of these provisions, and knowing
that Mr. Petrone refused to modify the terms of this Agreement with respect to parking,
constituted a ratification of Mr. Petrone's interpretation which bars Plaintiffs claims.
Lastly, while Mr. Petrone has steadfastly denied that Plaintiff has any entitlement to
use any of the Covered Spaces, the parties settled the entire dispute concerning the parking
issues by their execution of a wrillen instrument (hereinafter the "Selllement Agreement")
dated March 18, 1994, (a true and correct copy of which Settlement Agreement was attached
as Exhibit "A to Defendant's Answer to Plaintiffs Complaint, a copy of which Answer is
attached to Defendant's Motion, Exhibit "B").
Plaintiff has admillcd that its agent, Phil Guarneschelli, was acting on behalf of, and
with the authority of Plaintiff when the Selllement Agreement was signed. ~ Defendant's
Request for Admissions, (Motion, Exhibit "D"; Response to Request for Admissions,
(Motion, Exhibit "E"), '12. Through the Selllment Agreement, Mr. Petrone agreed to waive
a monthly fee relating to the two designated covered spaces 2n.b! in exchange for Plaintiffs
agent Guameschelli's representation that such an accommodation would fully and finally
resolve this mailer. S<< Defendant's Answer to Plaintiffs Complaint, (Motion, Exhibit
"B"), '59. Plaintiff admits that Mr. Petrone fully performed the terms of the Selllement
Agreement, through furnishing the key to the private rc.lr entrance and two of the disputed
96\93.\
9
rights: rather, it is enough that a party decisively take a position upon which another relies.
As the Superior Court explained:
The doctrine of equitable estoppel protects the reasonable
expectations of one who relies on another's course of conduct: it
prevents a party from taking a position that is inconsistent with
the position previously taken which is disadvantageous to the
other.
DopIer v. DODIer, 393 Pa. Super. 600, 574 A.2d 1101, 1105 (1990). Otini, Curran v.
Eberharter, 361 Pa. Super. 65,521 A.2d 474 (1987): "equitable estoppel arises when a party
by acts or representation intentionally or through culpable negligence, induces another to
believe that certain facts exist and the other justifiably relies and acts upon such a belief, so
that the laller will be prejudiced if the former is permilled to deny the existence of facts".
(Citation omilled.) "In short. the doctrine is one of fairness. . . ." Curran at _' 521
A.2d at 579-580.
In this case, it is beyond dispute that Mr. Petrone relied upon Plaintiffs abandonment
of any rights it may have under the Leases when he entered into agreements with other
tenants providing for reserved parking. It would be fundamentally unfair for this Court to
award Plaintiff relief notwithstanding Plaintiffs ratification of Mr. Petrone's position
regarding parking, and specifically, Plaintiffs execution of the Selllement Agreement..
Moreover, in bringing this action, Plaintiff runs headlong into several other lime-
honored principles of equity. As an initial maller, it has always been the case that one who
seeks equity must do equity. S<< e.g. Mazer v. Sar!;eant Electric Company, 407 Pa. 169,
180 A.2d 63 (1962). Additionally, it is abundantly clear that, under all the circumstances of
this case, Plaintiff comes before this Court of equity with unclean hands. To reiterate the
96\93.\
II
litany of unfairness and unequitable conduct by Plaintiff with specific regard to the parking
issue, the following "of-record" facts bear repetition:
. Plaintiff had concerns over the adequacy of parking at Mr. Petrone's facility
even prior to executing Lease One, yet went ahcad and leased spacc at the Premises
anyway. ~ Exhibit "E", '4.
. After complaining for somc time rcgarding thc parking, and challenging
Mr. Petrone's interpretation of the leasing provisions regarding the same, Plaintiff
negotiated for additional space at the Premiscs. Exhibit "E", '8.
· During these negotiations, Plaintiff admits that it specifically requested
alterations in the lease terms to incorporate its intcrpretation of the leasing provisions
regarding parking. Mr. Petrone refused. Ncverthcless, Plaintiff executed Lease
Two, containing parking provisions identical to those provided in Lease One on
January 29, 1994. M.
· Plaintiff subsequcntly threatened litigation and other retaliatory tactics as
early as June 1, 1993, yet did not bring suit until April II, 1995. S<< e.g. Exhibit
tlH".
· Indeed, prior to bringing suit and asserting that assigning reserved parking
spaces was contradictory to its lease provisions, Plaintiff executed a wrillen
instrument on March 18, 1994 whereby Plaintiff illili was provided with access to
certain of the Covered Spaces. Plaintiff frecly concedcs entcring into this agreement,
and further acknowledges Mr. Petrone's performance pursuant to the same by
96\9\.1
12
CERTIFICATE OF SERVICE
I, Mark D. Bradshaw, Esquire, hcreby certify that I am this day serving a
copy of the foregoing document upon the pcrson(s) and in the manner indicated below, whieh
scrvice salisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing
a copy of the same in the Unitcd States Mail, Harrisburg, Pennsylvania, with first-class
postage prepaid, as follows:
Dean A. Weidner, Esquire
Thomas A. HUllon, Esquire
Wix, Wenger & Weidner
508 North Second Street
Harrisburg, P A 17108-0845
ECKERT SEAMANS CHERIN & MELLOTT
tl~ ~ ~-;
Mark D. Bradshaw, Esquire
Supreme Cl. J.D. #61975
Christopher M. Cicconi, Esquire
Supreme Ct. J.D. #19331
One South Market Square Building
213 Market Street
Harrisburg, PA 17101
(717) 237-6000
DATED Arl L(, 1111,
Allorneys for Defendant
Roger C. Petrone
HARRISBURG MEDICAL
MANAGEMENT, INC.,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
ROGER C. PETRONE,
DEFENDANT
95.1851 EQUITY TERM
~EFORE BAYLEY. J. AND OLEA, J.
OADER OF COURT
AND NOW, this 18th day of April, 1996, the motion of defendant for summary
judgment, IS DENIED.
Edgar B. Bayley, J.
I
Thomas A. Hulton, Esquire
For Plaintiff
Mark D. Bradshaw, Esquire
For Defendant
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PRAECIPE FOR lISTI:-IG C..\SE FOR TRIAL (EQUITY)
{~IUSI be typewriuen .nd )ubmillcd in duplic.tc I
TO THE PROTHONOTARY. OF CL'~IBERl.-\.'1D COL:NTY
P!e3le !ill the :'oil""in~ :3Ie:
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CAPTION OF CASE
(entlr. '3plion mUsl ~e lt31.d In full)
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HARRISBURG MEDICAL
MANAGEMENT, INC.,
( AllUmpllt
( Trespm
( Tlesp311 (~lo10r Vehicle)
(X ) EQUITY
(olher)
(PI.muff)
V1.
The trial list will be called on
and
Trials commence on
(Defend.nl)
Pretrials will be held on
(Briefs are due 5 days before pre-
trials. )
(The party listing this case for trial
shall provide forthwith a copy of the
p'raecipe to all counsel, pursuant to
rocal Rule 214-1.)
ROGER C. PI:.'TRO~E,
vs.
~o.
erltt 95-IA51 F'.QIIT'I'V
19_
Indlc31e the 31lorney who ",11 Iii' em for Ihe ?3tty 'Nho liks this pr3e.lpe: STEVEN R. WILLIAMS, ESQUIRE,
508 NORTH SECOND STREET, POST OE'FTCR BOX A4'i. H^lmT~RJmr.. PA 17108-0845. A'rTORNEY
tUK PLAINTIFF
Indlc3le lrl31 counsel (or other p3CllU If known: MARK D. BRADSHAW, ESQUIRE, ONE SOlrrH MARKET
SQUARE BUILDING, 213 MARK~r STREET, POST OFFICE BO
A'rTORNEY E'OR DEFENDANT.
Signed:
ti~
This em Is re3dy ror lri3l.
.
Dale:
'II" Jet f.
Pnnt :-;Jme: STEVEN R. WILLIAMS, ESQUIRE
.~lIorn.l' ror: PLAINTU'F
HARRISBURG MEDICAL
MANAGEMENT, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - EQUITY
ROGER C. PETRONE,
Defendant
.
.
.
.
NO. 95-1851 EQUITY TERU
ORDER OF COURT
AND NOW, this 2.l~i day of November, 1996, upon relation of
Steven R. Williams, Esq., that the above-captioned matter has been
settled, the pretrial conference scheduled for December 19, 1996,
and the nonjury trial scheduled for February 3, 1997, are
CANCELLED.
BY THE COURT,
J
Steven R. Williams, Esq.
. 508 North Second Street
P.O. Box 845
Harrieburg, PA 17108-0845
Attorney for Plaintiff
Mark D. Bradshaw, Esq.
One South Market Square Bldg.
213 Market Street
P.O. Box 1240
Harrisburg, PA 17108
Attorney for Defendant
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HARRISBURG MEDICAL
MANAGEMENT, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Docket No. 95.1851 Equity Term
v.
ROGER C. PETRONE,
Defendant
CIVIL ACTION - EQUITY
PRAECIPE TO DISCONTINUE
To the Prothonotary:
Kindly mark the docket in the above-captioned mailer settled, satisfied and
discontinued with prejudice as all parties have resolved all claims against each other.
ECKERT SEAMANS CUERIN & MELLOTT
. ~\~Z_~~-
'Mark D. Bradshaw, Esquire
Christopher M. Cicconl, Esquire
; pne South Market Square Building
213 Market Street
Harrisburg, PA 17101
(717) 237-6000
Attorneys for Roger C. Petrone
GER & WEIDNER
i~
,Steve R. Williams, Esquire
508 North Second St.
Harrisburg PA 1710l
(717) 234-4182
Attorneys for Harrisburg Medical
Management, Inc.
DATED: .p(,: '>0, 1'i\(C
DATED: 12/11/'J(P
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