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DONALD H. ERWIN,
Plaintiff
vs.
IN TIlE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-5422 CIVIL TERM
KENNETIl K. HART,
SPECfRUM SERVICES, INC.,
and CROSSGATES, INC.,
Defendants
CIVIL AcrION - LAW
IN RE: PRELIMINARY OBJEcrIONS OF DEFENDANTS. SPEcrRUM SERVICES INC.
AND CROSSGATES. INC.
BEFORE HESS AND OLER. JJ.
ORDER
AND NOW, this
.sID
day of January, 1996, this matter having been called for
argument, on agreement of the parties, the preliminary objections of the defendants, Spectrum
Services Inc. and Crossgates, Inc., arc deemed WITIlDRAWN with the understanding that the
plaintiff is not seeking recovery of a real estate commission from the defendant, Crossgates, Inc.,
under the Real Estate Licensing Act, 63 P.S. 45.101 et seq,
BY TIlE COURT,
Jonathan M. Crist, Esquire
For the Plaintiff
John R. Kachur, Esquire
Scott D. Moore, Esquire
For the Defendants
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. 12-07-1995 11:39P'
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FROM Jona~han M. Crls~, Esq.
TO
2320817
P.\!2
.- ....
DONALD H. ERWIN,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 95-5422 CIVIL TERM
: CML ACflON . lAW
v.
KENNETH K. HART;
SPECTRUM SERVICES, INC.,
and CROSSGATES, INC.,
Defendants
AGREEMENT PURSUANT TO RULE 237.2 TO EXTEND TIME
TO PLEAD FOLLOWING TEN-DAY NOTICE
It Is agreed that Spectrum Services, Inc., and Crossgates, Inc., are granted an
extension of time through December 14, 1995 in which to 61e
_ 1. a complaint.
_ 2. an answer.
....x.. 3, an answer or preliminary objections.
After the above date, a judgment of non pros or by default, as may be
appropriate, may be entered upon praecipe wilhout further notice.
Date,j2H'~ 7' 11'/4-,-
~ R. KACHUR, ESQUIRE
Attom Services, Inc.
ates, Inc.
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 1995-05422 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
ERWIN DONALD H
VS.
HART KENNETH K ET AL
R. Thomas Kline . Sheri~~, who being duly 8worn according
~o law, says, ~ha~ he made a diligen~ search and inquiry ~or ~he wi~hin
named de~endan~, ~o wi~: HART KENNETH K
bu~ was unable ~o loca~e
depu~ized ~he sheriff of
~o serve the within COMPLAINT
Him
PERRY
in his bailiwick. He therefore
Coun~y, Pennsylvania.
On November 19th. 1995
the at~ached re~urn from PERRY
this office was in receipt of
Coun~y, Pennsylvania.
Sheriff's Costs:
Docke~ing
Out o~ County
Surcharge
Perry Co.
18.00
9.00
2,00
22.00
$:)1.01/1
So fJn';;;;?'s :.,
2:/
ATT~'~THANm~:I::1ne, Sher1%%
11 ;!4~ 995
Sworn and
this /"'f
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sUbscribe~be~ore me
day of 'J U w LL{..'L-_
A. D.
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il'The oun of .:mmO:1 r e= or ...,..-.".01_01 1"._......, f cnr:sY'lenl::
Donald II. ERwin
'is.
Crossgates Inc.
'" 95-5422 Ciyil Term
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DONALD H. ERWIN, . IN THE COURT OF COMMON PLEAS
.
Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
.
v. .
.
NO, 95.54ZZ CML TERM
KENNETH K. HART, .
.
SPECTRUM SERVICES, INC., .
.
and CROSSGATES, INC., CML ACTION. LAW
Defendants .
.
~FENDANTS' SPECTRUM SERVICES. INC. AND CROSSGATES. INC.
PRELl NARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
Defendants Spectrum Setvices, Inc. and Crossgates, Inc. preliminarily objects to
Plaintiff's Complaint as follows:
COUNT 1-.Pa. R.C.P. 1028(a)(4)
1. Plaintiff seeks to recover an alleged commission from Crossgates, Inc., a
purchaser of the property.
2. The Complaint alleges that Plaintiff is a licensed real estate salesperson.
The Complaint does not allege that he is a licensed Broker.
3. Under Pennsylvania's Real Estate licensing Law, 63 P.S. ~4SS.101, et seq..
a salesperson may not seek compensation from any person other than the licensed real
estate broker with whom he or she is affiliated.
4. As such, Plaintiff's Complaint as against Crossgates, Inc. is legally
insufficient and should be dismissed.
WHEREFORE, defendant Crossgates, Inc. respectfully requests this Court to
grant Crossgates' demurrer to the Complaint and enter judgment in its favor and against
Plaintiff dismissing Crossgates, Inc. from the action.
L'\JOIIN\CI.OIIOAT.I!NT
COUNT II--Pa. R.C.P. 1028(a)(4)
S. Defendants repeat, reallege, and incorporate herein the allegations
contained in paragraphs 1 through 4 above.
6. The Commission Agreement attached as Exhibit A to the Complaint
provides that payment of the commission is contingent upon the exercise of both options;
that is, an option to purchase 80 acres of land zoned industrial and an option to
purchase 80 acres of land zoned residential.
7. The Complaint does not allege that both options were exercised.
8. The Complaint fails to allege a valid condition precedent to suit and, as
such, Plaintiffs Complaint is legally insufficient and should be dismissed.
9. Furthermore, the Complaint alleges that purchases of lots in the
development have taken place by parties other than Crossgates, Inc. and Plaintiffs basis
for damages is calculated on the third party sales.
WHEREFORE, defendant Crossgates, Inc. and Spectrum Services, Inc.
respectfully requests this Court to grant their demurrer to the Complaint and enter
judgment in their favor and against Plaintiff dismissing defendants Crossgates, Inc. and
Spectrum Services, Inc. from the action.
COUNT II--Pa. R.C.P. 1028(a)(4)
10. Defendants repeat, reallege, and incorporate herein the allegations
contained in paragraphs 1 through 4 above.
11. Plaintiff cannot recover under theories of unjust enrichment and quantum
meruit unless he is able to establish that no contract existed.
12. Plaintiff alleges that a contract exists. Accordingly, the unjust enrichment
and quantum meruit claims are inconsistent with the averment of facts and, as such, are
L'\JOIIN\CRCoIIMTJ!NT
/ , '
DONALD H. ERWIN, IN THE COURT OF COMMON PLEAS
Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
v. .
.
. NO. 9S.S4ZZ CIVIL TERM
.
KENNETH K, HART, .
.
SPECTRUM SERVICES, INC., .
.
and CROSSGATES, INC., . CIVIL ACTION. LAW
.
Defendants .
.
CERTIFICATE OF SERVICE
L ~c~bee
I, John R. Kachur, on this J If' day of '/elfther, 1995, hereby certify that I
have served a copy of the foregoing Notice of Entl)' of Appearance by first class mail,
upon the following:
Jonathan M. Crist, Esquire
226 West Chocolate Avenue
Hershey, PA 17033
Attorney for Plaintiff
Edward E. Guido, Esquire
Saidis, Guido, Shuff & Masland
26 West High Street
Carlisle, PA 17013
Attorney for Defendant Kenneth K. Hart
JO~~~
Attorney for Defendants
HETRICK, ZALESKI & PIERCE, P.C.
10 S. Market Square, Suite 500
Post Office Box 1265
Harrisburg, PA 17108-1265
Telephone: (717) 236-9581
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and subnitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argunent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
(Plaintiff)
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DONALD H. ERWIN
vs.
KENNETH K. HART, SPECTRUM
SERVICES, INC. and CROSSGATES, INC.
( Defendant)
No. 95-5422 civil
19
1. State matter to be argued (i.e.. plaintiff's IlDtion for new trial. defendant's
denurrer to CCJll)laint, etc.):
PRELIMINARY OBJECTIONS OF DEFENDANTS SPECTRUM SERVICES, INC. and
2. Identify =unsel who will argue case: CROSSGATES, INC.
(a) for plaintiff: JONATHAN M. CRIST, ESQ.
Address: 226 W. CHOCOLATE AVE.
HERSHEY, PA. 17033
(717) 533-6600
(b) for defendant: RONALD M. LUCAS/JOHN R. KACHUR
Address: P. O. BOX 1265
HARRISBURG, PA. 17018-1265
(717) 236-9581
3. I will notify all parties in writing within t'oIO days that this case has
been listed for argunent.
4. Arg\Inent Court Date: JANUARY 31, 1996
Dated: 12/22/95
, ~7t
I.d/JIII ~~
Atto~ for Plaintiff, Donald H. Erwin
"
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and subnitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Arg\.Inent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(ent:ire caption IlUBt be stated in full)
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DONALD H. ERWIN
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(Plaintiff)
KENNETH K. HART, SPECTRUM
SERVICES, INC. and GROSSGATES, INC.
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(Defendant)
No. 95-5422 Civil
19
1. State matter to be argued (i.e.. Plaintiff's /TI)tion for new tr.ia1. defendant's
dBll.lrrer to COlrplaint. etc.):
PRELIMINARY OBJECTIONS OF DEFENDANT, KENNETH K. HART
2. Identify counsel who will argue case:
(a) for Plaintiff: JONATHAN M. CRIST, ESQ.
~: 226 W. CHOCOLATE AVE.
HERSHEY, PA. 17033
(717) 533-6600
(b) for defendant: EDWARD E. GUIDO, ESQ.
~s: 26 WEST HIGH STREET
CARLISLE, PA. 17013
(717) 243-6222
3. I will notify all parties in writing within two days that th:is case has
been listed for Brgunent.
4. Ar9unent Court Date: DECEMBER 06, 1995
IBted: 11/15/95
Atto
L-\JOIIH\CIlOUot.y.ert'. ..
DONALD H. ERWIN, . IN THE COURT OF COMMON PLEAS
.
Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
.
:
v. .
.
. NO. 95.5422 CML TERM
.
KENNETH K. HART, .
.
SPECTRUM SERVICES, INC., .
.
and CROSSGATES, INC., . CML ACTION - LAW
,
Defendants .
.
NOTICE OF ENTRY OF APPEARANCE
The law firm of Hetrick, Zaleski & Pierce, P.C. hereby enters its appearance on
behalf of Defendant Spectrum SelVices, Inc. and Crossgates, Inc.
Respectfully submitted,
Rona . Lucas, Esquire
Attorney 1.0. No. 18343
John R. Kachur, Esquire
Attorney 1.0. No, 58141
HETRICK, ZALESKI & PIERCE, P.C.
10 So. Market Square, Suite 500
P.O. Box 1265
Harrisburg, PA 17108-1265
Telephone: (717) 236-9581
Attorney for Defendants
t\l'OHN\C:aCIIII:M.T.ltn' .. ,'. .
DONALD H. ERWIN,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 95-5422 CIVIL TERM
KENNETH K. HART,
SPECTRUM SERVICES, INC.,
and CROSSGATES, INC..
Defendants
CIVIL ACTION. LAW
CERTIFICATE OF SERVICE
+h
I, John R. Kachur, on this I A day of November, 1995, hereby certify that I
have served a copy of the foregoing Notice of Entl)' of Appearance by first class mail,
upon the following:
Jonathan M. Crist, Esquire
226 West Chocolate Avenue
Hershey, PA 17033
Attorney for Plaintiff
Edward E. Guido, Esquire
Saidis, Guido, Shuff & Masland
26 West High Street
Carlisle, PA 17013
Attorney for Defendant Kenneth K. Hart
JO~
Attorney for Defendants
HETRICK, ZALESKI & PIERCE, P.C.
10 S. Market Square, Suite 500
Post Office Box 1265
Harrisburg, PA 17108-1265
Telephone: (717) 236.9581
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On this
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CERTIFICATE
day of
OF SERVICE
~~
, 1995, I,
Edward E. Guido, Esquire, hereby certify that I served a true and
correct copy of the foregoing Preliminary Objections of Defendant
Kenneth K. Hart upon counsel for all parties of record via United
States Mail, postage prepaid, addressed as follows:
Jonathan M. Crist, Esquire
226 West Chocolate Avenue
Hershey, PA 17033
Attorney for Plaintiff
Spectrum Services, Inc.
3555 Washington Road
McMurray, PA 15317
Crossgates, Inc.
3555 Washington Road
McMurray, PA 15317
SAIDIS,
By:
Edward E. Guido, Esquire
SAlOIS, GUIDO,
SHUFF &
MASLAND
26 W. "ilh s....t
CalIi.I.. PA
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DONALD H. BRWIN,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
No.qtT- 5"412- (}~L -JWl"-
v.
KENNETH K. BART J
SPECTRUM SERVICES, INC.,
and CROSSGATES, INC.,
Defendants
CIVIL ACTION - LAW
HOT I C B
YOU HAVE BEEN SUED IN COURT. If you wish to defend
against the claims set forth in the following pages, you
must take action within twenty (20) days after this
Complaint and Notice are served, by entering a written
appearance personally or by attorney and filing in
writing with the Court your defenses and objections to
the claims set forth against you. You are warned that if
you fail to do so the case may proceed without you and
a judgment may be entered against you by the Court
,without further notice for any money claimed in the
Complaint or for any other claim or relief requested by
the Plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE.
IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO
OR TELBPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE
YOU CAN GET LEGAL HELP.
COURT ADMINISTRATOR
CUMBERLAND CO COURTHOUSE 4th FLOOR
1 COURTHOUSE SQUARE
CARLISLE PA 17013 3387
(717) 240 6200
v.
IN THB COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
DONALD H. ERWIN,
Plaintiff
KENNETH K. HART J
SPECTRUM SERVICES, INC.,
and CROSSGATES, INC.,
Defendants
CIVIL ACTION - LAW
COMPLAINT
AND NOW, comes the Plaintiff, DONALD H. ERWIN, by his attorney,
JONATHAN M. CRIST, ESQ., who makes Complaint against the Defendants,
KENNETH K. HART, SPBCTRUM SERVICES, INC., and CROSSGATES, INC., of which
the following is a statement:
1. Plaintiff, DONALD H. ERWIN, is an adult individual residing at
R.D. 11, Box 368, Palmyra, PA. 17078.
2. Defendant, KENNBTH K. HART is an adult individual residing at
R.D. '1, Ickesburg, PA. 17037.
3. Upon information and belief, Defendant, SPECTRUM SERVICES,
INC, is a corporation organized and existing under the laws of the
Commonwealth of Pennsylvania with an office or chief place of business
at 3555 Washington Road, McMurray, Washington County, Pennsylvania.
4. Upon information and belief, Defendant, CROSSGATES, INC., is
a corporation organized and existing under the laws of the Commonwealth
of Pennsylvania with an office or chief place of business at 3555
Washington Road, McMurray, Washington County, Pennsylvania.
5. Plaintiff, DONALD H. ERWIN, believes and therefore avers that
at all times relevant to the causes of action horein Defendant, SPECTRUM
SERVICBS, INC., was under the control of Defendant, CROSSGATBS, INC.,
or, in the alternative, was under the control of the shareholders,
officers and directors of Defendant, CROSSGATES, INC., such that with
regard to the transactions hereinafter set forth there was an identity
of interest and purpose between Defendants SPECTRUM SERVICBS, INC and
CROSSGATES, INC.
6. Sometime prior to July 1988, Plaintiff, DONALD H. ERWIN, a
commercial real estate agent duly licensed by the Commonwealth of
Pennsylvania, entered into an agent/broker agreement with Defendant,
SPECTRUM SERVICES, INC., a commercial real estate broker duly licensed
by the Commonwealth of Pennsylvania.
7. Pursuant to the terms of the aforesaid agent/broker agreement
between Plaintiff, DONALD H. ERWIN and Defendant, SPECTRUM SERVICES,
INC., Plaintiff, DONALD H. ERWIN, was to receive 75% of all real estate
commissions earned by Defendant, SPECTRUM SERVICES, INC., through the
efforts of Plaintiff, DONALD H. ERWIN.
8. Sometime prior to July 1988 Plaintiff, DONALD H. ERWIN,
introduced certain property consisting of 160 acres more or less located
in Lower Allen Township, Cumberland County, Pennsylvania (now commonly
known and hereinafter referred to "WBSTPORT") then owned by Defendant,
KENNETH K. HART to the principals of Defendant, CROSSGATES, INC. for
possible purchase and development by Defendant, CROSSGATES, INC.
9. On July 25, 1988 Defendant, KENNETH K. HART, as Seller and
Defendant, SPECTRUM SERVICES, INC., as Broker, executed the Commission
Agreement attached hereto as Exhibit "A" with regard to the potential
purchase of any portion of the Westport property by Defendant,
CROSSGATES, INC.
- 2 -
10. As a direct result of the efforts of Plaintiff, DONALD H.
ERWIN, in helping to structure the transaction, Defendant, KENNETH K.
HART, and Defendant, CROSSGATES, INC., executed a certain Option
Agreement dated October 3, 1988 for the potential purchase of the
Westport property by Defendant, CROSSGATES, INC. A copy of this Option
Agreement is attached hereto as Exhibit "B".
11. Paragraph 15 of the Option Agreement dated October 3, 1988
states:
15. Broker'. COmmi..iOD. Seller represents and warrants that
there are no ettective listing agreements in connection with this sale
other that with Spectrum Services, Inc. by its salesman, Don Erwin.
Seller shall pay the commission to Spectrum Services, Inc, and Don Erwin
in accordance with seller's contract with such broker. Seller and
purchaser each agree to indemnify and save the other harmless against
any other such claim for such services and from all liabilities arising
tram any claim tor such services and from all liabilities arising
from any claim for other brokerage commission or conunissions or finders'
fees or fees, by or through such indemnifying party. It is understood
and agreed by seller and purchaser that Spectrum Services, Inc. is
affiliated with and has an identity of interest with purchaser.
12. On or about September
discontinued his association with
1989, Plaintiff, DONALD H.
Defendant, SPECTRUM SERVICES,
ERWIN,
INC.
13. It is believed and therefore averred that subsequent to
September 1989, Defendant, KENNETH K. HART, and Defendant, CROSSGATES,
INC., modified the aforesaid Option Agreement of October 3, 1988 with
regard, inter alia, to the time of performance by Defendant, CROSSGATES,
INC., the amount and/or timing of option payments by Defendant,
CROSSGATES, INC., and the purchase price per acre.
14. Pursuant to the terms of the Option Agreement dated October 3,
1988 and the aforesaid modification of said Option Agreement,
Defendants, CROSSGATES, INC and SPECTRUM SERVICES, INC., proceeded to
- 3 -
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subdivide and obtain development approvals for a portion of the Westport
property known as the Final Subdivision Plan Lots 6A, 6B, & 7, Westport
Phase I, approved by the Board of Commissioners of Lower Allen Township
April 4, 1994, and recorded in the Office of the Recorder of Deeds of
Cumberland County, Pennsylvania on AprilS, 1994 in Plan Book 67, Pages
134-135 incorporated herein by reference.
15. It is believed and therefore averred that Defendant,
CROSSGATES, INC., assigned a portion of its rights to purchase under the
Option Agreement dated October 3, 1988 and the aforesaid modification of
said Option Agreement to CUMBERLAND PARTNERS-WBSTPORT which, pursuant to
said agreements, then purchased Lots 6A and 6B of the aforesaid
Subdivision Plan of Westport Phase I from Defendant, KENNBTH K. HART,
joined by his wife, Louise S. Hart, by Deeds dated February 17, 1994 and
recorded April 5, 1994 at Book 103, Page 631 et. seq. and Book 103, Page
635 et. seq. in the Office of the Recorder of Deeds of Cumberland
County, incorporated herein by reference, for the total consideration of
One Million and Ten Thousand ($1,010,000.00) Dollars.
16. Pursuant to the terms of the Option Agreement dated October 3,
1988 and the aforesaid modification of said Option Agreement,
Defendants, CROSSGATES, INC and SPECTRUM SERVICES, INC., proceeded to
subdivide and obtain development approvals for a portion of the Westport
property known as Westport Phase 2 dated March 3, 1995.
17. It is believed and therefore averred that Defendant,
CROSSGATES, INC., assigned a portion of its rights to purchase under the
Option Agreement dated October 3, 1988 and the aforesaid modification of
said Option Agreement to PENNSYLVANIA-DELAWARE DISTRICT COUNCIL
ASSEMBLIES OF GOD which, pursuant to said agreements, then purchased
Lots 8 of the aforesaid Subdivision Plan of Westport Phase 2 from
- 4 -
Defendant, KBNNETH K. HART, joined by his wife LOUISE S. HART, by Deed
dated April 24, 1995 and recorded at Book 121, Page 223 et. seq. in
the Office of the Recorder of Deeds of Cumberland County, incorporated
herein by reference, for the total consideration of Two Hundred Sixty
Nine Thousand ($269,000.00) Dollars.
18. Pursuant to the terms of the Option Agreement dated October 3,
1988 and the aforesaid modification of said Option Agreement,
Defendants, CROSSGATBS, INC and SPECTRUM SERVICES, INC., proceeded to
subdivide and obtain development approvals for a portion of the Westport
property known as Westport Phase 3, approved by the Board of
Commissioners of Lower Allen Township August 14, 1995, and recorded in
the Office of the Recorder of Deeds of Cumberland County, Pennsylvania
in Plan Book 70, Page 106 incorporated herein by reference.
19. It is believed and therefore averred that Defendant,
CROSSGATES, INC., assigned a portion of its rights to purchase under the
Option Agreement dated October 3, 1988 and the aforesaid modification of
said Option Agreement to ANCHOR INVESTORS which, pursuant to said
agreements, then purchased Lots 7A of the aforesaid Subdivision Plan of
Westport Phase 3 from Defendant, KENNETH K. HART, joined by his wife,
LOUISE S. HART, by Deed dated August 30, 1995 and recorded at Book 127,
Page 523 et. seq. in the Office of the Recorder of Deeds of Cumberland
County, incorporated herein by reference, for the total consideration of
Seven Hundred Thousand ($700,000.00) Dollars.
20. It is believed and therefore averred that sometime prior to
February 17, 1994 Defendant, SPECTRUM SERVICES, INC., without the
knowledge or consent of Plaintiff, DONALD H. ERWIN, entered into an
agreement with Defendant, KENNETH K. HART, which agreement purported to
void the rights of both Defendant, SPBCTRUM SERVICES, INC. as well as
- 5 -
.-.-.........
.'
27. Defendant, KENNETH K. HART, knew or upon reasonable inquiry
should have known, that Defendant, SPECTRUM SERVICES, INC., was without
authority to void or waive that portion of the Brokers Commission to
which Plaintiff, DONALD H. ERWIN, was entitled under Parag~aph 15 of the
Option Agreement of October 3, 1988, and as such Defendant, KENNETH K.
HART has been unjustly enriched when no commission was paid on the sale
of the aforesaid Lot 6A and 6B Westport Phase I to Cumberland Partners-
Westport.
WHEREFORE, Plaintiff, DONALD H. ERWIN, demands judgement against
the Defendant, KENNETH K. HART, in the amount of Seventy Four Thousand
Two Hundred Twelve and 50/100 ($74,212.50) Dollars, plus applicable
interest and costs of this action.
COUNT IV - BREACH OF CONTRACT
DONALD H. ERWIN v. SPECTRUM SERVICES, INC.
28. The allegations of Paragraphs 1-27 are incorporated herein by
reference as if set out length.
29. Defendant, SPECTRUM SERVICES, INC., breached its agreement
with Plaintiff, DONALD H. ERWIN, by attempting to void Plaintiff, DONALD
H. ERWIN, rights under Paragraph 15 of the aforesaid Option Agreement
dated October 3, 1988 when Defendant, SPECTRUM SERVICES, INC. was
without authority to do so.
30. Defendant, SPECTRUM SERVICES, INC., breached its agreement
with Plaintiff, DONALD H. BRWIN, by failing to collect and pay over to
Plaintiff, DONALD H. ERWIN, that portion of the Brokers Commission due
- 8 -
and payable from Defendant, KENNETH K. HART upon transfer of Lots 6A and
6P Westport Phase I to Cumberland Partners-Westport.
31. Despite demand therefore, Defendant, SPECTRUM SERVICES, INC.
has refused to pay to Plaintiff, DONALD H. ERWIN, the sum of Seventy
Four Thousand Two Hundred Twelve and 50/100 ($74,212.50) Dollars.
WHEREFORE, Plaintiff, DONALD H. ERWIN, demands judgement against
the Defendant, SPECTRUM SERVICES, INC., in the amount of Seventy Four
Thousand Two Hundred Twelve and 50/100 ($74,212.50) Dollars, plus
applicable interest and costs of this action.
COUNT V - INTERFERENCE WITH CONTRACTUAL RELATIONS
DONALD H. ERWIN v. CROSSGATES, INC.
32. The allegations of Paragraphs 1-31 are incorporated herein by
reference as if set out length.
33. plaintiff, DONALD H. ERWIN, believes and therefore avers that
the attempt by Defendant, SPECTRUM SERVICES, INC., to void Paragraph 15
of the Option Agreement dated October 3, 1988 and the refusal of
Defendant, SPECTRUM SERVICES, INC., to collect a Brokers Commission on
the transfers of Lots 6A 6B, 7A and 8 of Westport as aforesaid was at
the specific direction and request of Defendant, CROSSGATES, INC., in
order to secure for Defendant, CROSSGATES, INC. , the consent of
Defendant, KENNETH K. HART, to the modifications to the Option Agreement
dated October 3, 1988 as set forth in Paragraph 13 above, incorporated
by reference, and/or to secure for Defendant, CROSSGATES, INC., the
consent of Defendant, KENNETH K. HART, to the assignment by Defendant,
- 9 -
~-+.
,-
.,
9/27/88
OPTION AGREEMENT
THIS AGREEMENT is made and entered into as of the 3 t! day of
{j c.1:;-tu,\, , 1988, by and between KENNETH K. BART and LOUISE S. BART,
his wife, individuals whose address is R. D. #1, Ickesburg, PA l7037,
hereinafter referred to as "seller" and CROSSGATBS, INC., a Pennsylvania
corporation with its principal office at 3555 Washington Road, McMurray,
PA l53l7, hereinafter referred to as "purchaser," WITNESSETH;
WHEREAS, seller is the owner of certain real estate containing
approximately l60 acres, more or less, and located in Lower Allen Town-
ship, Cumberland County, Pennsylvania (hereinafter the "property"),
which real estate is depicted on a "Map of Property of Kenneth K. Hart"
prepared by John C. Brilhart surveying and Mapping Services dated Janu-
ary 5, 1983, a copy of which has been given to purchaser, and said real
estate is more particularly described in Exhibit "A" attached hereto and
made a part hereof; and
WHEREAS, purchaser contemplates developing the property in various
phases; and
~
WHEREAS, purchaser desires to obtain and seller desires to grant to
purchaser options to purchase the property, which options will be
Exhibft "B"
.
ARNOLD" SLlKE. ATTOl!ll:lU.AT.LAw, JIM '''',,....IT STaUT. CAMP HILL. ,., 11011
.
Il~,.
divided between the land currently zoned Industrial from that currently
zoned Residential.
NOW, THEREFORE, for good and valuable consideration, receipt of
which is hereby acknowledged, and intending to be legally bound hereby,
the parties hereto hereby agree as follows:
1. Grant of OPtions to Purchaser. Seller hereby agrees to
grant to purchaser, or purchaser's nominee, irrevocable options to
purchase from seller the property or a portion or portions thereof as
follows:
A. An option to purchase all of the land described on
Exhibit "A" currently zoned Industrial (approximately 80 acres) for a
price of $32,500 per acre.
B. An option to purchase all of the land described on
Exhibit "A" currently zoned Residential (approximately 80 acres) for a
price of $27,500 per acre.
C. A Memorandum of option will, at the time of execution
hereof, be executed and recorded in the Office of the Recorder of Deeds
of Cumberland County, pennsylvania; provided that, simultaneously there-
with a termination of option in recordable form will be executed and
delivered to counsel for the seller, to be recorded in the event, and to
the extent the purchaser fails to exercise its options under Paragraph 3
and/or terminates the option pursuant to Paragraph 9.A, and/or defaults
under Paragraph lO. Both documents will be in form acceptable to pur-
chaser and seller.
2. Payment of Purchase price. The payment of the purchase
price shall be as follows:
A. Purchaser shall, upon the execution hereof, pay to
seller the sum of $4,000 (the "initial earnest money deposit);
- 2 - .
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ARNOLD &: SlIKE. AnOJl.~n'.AT.UW. JIM M"un STUtT. CA"" HILL. '" Hall
"
.
II.
,
"fLI-
B. Purchaser shall, by the / -- day of each succeeding
month after the date hereof, pay to seller an additional sum of $4,000
(the "additional deposits") until such time as the purchaser shall
acquire either the first phase (as hereinafter defined) or the entire
prop~rty (the initial earnest money deposit and any additional deposits
being together hereinafter referred to as the "earnest money deposit");
C. At the Closings (as hereinafter defined), purchaser
shall deliver to seller the purchase price in immediate funds, less the
applicable portion of the earnest money deposit as hereinafter provided.
D. The initial earnest money deposit and additional
deposits shall be nonrefundable after they are made, unless seller is in
default under the terms of this agreement or upon termination under the
provisions of Paragraph 9.A.
3. Exercise of Options: Purchase in Phases. Purchaser shall
have separate options to purchase the industrially-zoned property and
the residentially-zoned property, but once an option is exercised,
purchaser shall be committed to complete the purchase of the property in
accordance with the following schedule:
A. As to the industrially-zoned land -
1. The portions of the property shall be in parcels
containing 25 acres o~more. Each such parcel being
hereinafter referred to as a "phase" or together as
"phases."
2. The phases shall be delineated in accordance with
subdivision plans which shall be filed of record in
the Recorder of Deeds Office of Cumberland County.
3. Each phase shall be laid out so as to provide the
balance of the property with access to a public road
either with direct frontage thereon or by means of
roads laid out w1thin or, abutting such subdivision
and access to the utilities of storm, sewer, sanitary
sewer, gas (only if installed by purchaser), water
and electricity installed by the purchaser in the
abutting subdivision.
- 3 -
ARSOLD k SlU-:E. ,nO"~[H."T.L\\o\ 1I0'l ",un nun. CAMP lULL. P,", 17011
.
4. The option for the first phase (or the entire
property, if purchaser so elects) shall be exercised
by the 1st day of January, 1990.
5. The second phase (or the balance of the property,
if purchaser so elects) shall be closed by the 3lst
day of January, 1991.
6. The balance of the property shall be closed by
the 3lst day of January, 1992.
B. As to the residentially-zoned land -
1. This option shall exist only in the event that
purchaser has completed the purchase of the indus-
trially-zoned land in accordance with the schedule in
Paragraph 3-A.
2. The portions of the property shall b~ in parcels
containing 25 acres 09, more. Each such parcel being
hereinafter referred to as a "phase" or together as
"phases."
3. The phases shall be delineated in accordance with
subdivision plans which shall be filed of record in
the Recorder of Deeds Office of Cumberland County.
4. Each phase shall be laid out so as to provide the
balance of the property with access to a public road
either with direct frontage thereon or by means of
roads laid out within or abutting such subdivision
and access to the utilities of storm, sewer, sanitary
sewer, gas (only if installed by purchaser), water
and electricity installed by the purchaser in the
abutting subdivision.
5. The first phase (or the entire property, if
purchaser so elects) shall be exercised by the lst
day of January, 1993:
6. The second phase (or the balance of the property,
if purchaser so elects) shall be closed by the 3lst
day of January, 1994.
7. The balance of the property shall be closed by
the 31st day of January, 1995.
- 4 - .
ARSOLD &c SLlli:[. \no.~[\\ "r.LAw. 21~ MAUlT nuu. CAMr tIILL. ,.~ 17011
, .
.
C. Upon request by purchaser, seller may consent, such
consent not to be unreasonably withheld, to include a portion of resi-
dentially-zoned land contiguous to industrially-zoned land in the exer-
cise of the phases of the purchase of the industrially-zoned land with
an appropriate adjustment of the purchase price, but the inclusion of
such residentially-zoned land shall not be considered an exercise of the
option relating to the residential land, unless agreed to by the seller
and purchaser. However, the inclusion of residentially-zoned land in
the exercise of a phase of the purchase of industrially-zoned shall not
relieve purchaser of the obligation to purchase all of the land cur-
rently zoned industrial after the option to purchase the industrial land
is first exercised.
D. Closing shall be held as to each and any phase on a
regular business day at the office of Arnold & Slike, Camp Hill, PA,
unless otherwise mutually agreed at ll:OO a.m., on a date designated in
the notice given to exercise the option for such phase pursuant to
Paragraph l3 hereof, but not later than 30 days following the date of
receipt by seller of such notice of exercise, and as to subsequent
phases of industrial-zoned or residentially-zoned land, on a date trans-
mitted by purchaser to seller upon at least 15 days prior written
notice, but in any event not later than the date required under Para-
graphs 3.A. and 3,B., respectively.
4. Title. The conveyance of land in the various phases shall
be by general warranty deeds, free and clear of all liens, encumbrances,
claims, easements, exceptions, reservations, agreements or restrictions
as to mineral rights or otherwise, to which no objection is taken pur-
suant to Paragraph 9.A. of this agreement.
Seller has advised purchaser that the property is subject to
certain known easements set forth below,. some of which are partially
shown on Exhibit "A" although the width and location of the easements
might not be accurately portrayed thereon:
- 5 -
.
AR~OlD '" SLlKF.. '"OIlNl."'^f.L.AW. 2109 'IA...n nun. CAM' .lILl.'^ POll
, \
, ,
A. Right of way to PP&L 160 feet in width.
B. Right of way to PP&L 50 feet in width.
C. Right of way to Sinclair Refining Company or its
assigns.
D. Two rights of way to Lower Allen Township
Sewer Authority.
E. Right of way to Riverton Consolidated Water Co.
or its assigns.
F. Right of way to PP&L along extension of Kensington Dr.
G. Condemnation of Commonwealth of Pennsylvania
at corner of residentially zoned land.
. .
.
'.
5. Closinq Events. At each closing of an acquisition of a
phase or of the entire property (the "closings"), the following shall
occur:
A. Seller Obliqations:
1. ~. Seller shall deliver a general warranty
deed in recordable form, duly executed and acknow-
ledged, conveying to purchaser good and marketable
title to the fee simple interest in the property or a
phase, insurable at regular rates charged by a repu-
table title insurance company, free and clear of all
liens, encumbrances, easements, restrictions, and
impediments except permitted exceptions as defined in
Paragraph 9.A. hereof.
2. Seller's Title Requirements. Seller shall
deliver such other documents and certificates as may
be required by the title insurance company to deliver
good and marketable title to the property.
- 6 -
ARNOLD" SLIKE. ,nORNn,.,U.LAW. 210' MAkKf.T STun. CAMP ttlLL." 11011
.
.
B. Purchaser Obliqations:
Payment of Purchase Price. Purchaser shall pay the
purchase price to seller allocated to such phase or
the balance of the property, as the case may be.
6. Prorations. The prorations shall be as follows:
A. Real estate taxes in proportion to the parcel acquired
and assessments as of the date of closing, based on the current year's
taxes prorated on a calendar year basis or fiscal year basis, as is the
custom in Cumberland County. Seller shall pay all assessments for which
notice has been received prior to the first closing, but thereafter
purchaser shall be responsible for assessments after such closing to the
extent that they relate to the land being acquired by purchaser.
B. Municipal services fees, including but not limited to
water and sewer fees, and all utilities as of the date of closing.
C. The cost of realty transfer taxes shall be paid by
seller and purchaser equally.
D. Seller shall pay the cost of preparing the deed,
seller's counsel fees, and the cost of any title clearance matters.
E. All recording fees for the deed, purchaser's counsel
fees, and the cost of any title search and title insurance policies
shall be paid by purchaser.
F. The earnest money deposit shall be credited towards
payment of the purchase price as follows:
1. One-third (l/J) of the earnest money deposit
shall be credited toward the purchase price of each
phase acquired during the term hereof; and
2. If the balance of the property is acquired at any
time, the balance of the earnest money deposit shall
be credited toward the purchase pr~ce thereof.
G. Purchaser shall reimburse seller at the first closing
for the actual cost of the photogrammetric survey for the part of the
property which is the subject of this agreement, but not to exceed
$7,300, which survey seller has furnished to purchaser.
- 7 -
ARSOlO & SI.ltoi.L HTO":-O'H 'loT LA" IIn.. 'Hun 'TlUf.r. CI\\I, ItlLl.'" DOll
.
~ '.
.
7. Seller Representations and Warranties. As a material
inducement to cause purchaser to enter into this agreement, seller
here~y makes the following representations and warranties, which shall
be deemed to be made as of execution hereof and as of the closing, and
which shall survive the closing. seller shall indemnify and hold pur-
chaser harmless from any action, loss or claim arising as a result of
any breach of the following representations and warranties:
A. Seller has good and marketable fee simple title to the
property and any improvements thereon, which at the time of closing will
be free and clear of all liens and encumbrances except those approved by
purchaser in writing or which are "permitted exceptions" as described in
Paragraph A.
B. All special assessments or other charges which have
been made against the property will have been paid in full at closing.
C. Seller has full power and authority to enter into this
agreement and to perform the transactions contemplated hereunder.
D. There is no litigation, proceeding or other action
pending or threatened against or relating to seller or to the property
which would affect the validity of this agreement or any action taken or
to be taken by seller pursuant hereto, or which would affect the title
or marketability of the property.
E. Seller is not a foreign person for purposes of the
Foreign Investors in Real Property Tax Act, Section l445 of the Internal
Revenue Code of 1986, as amended.
F. Seller has not (i) made a general assignment for the
benefit of creditors; (ii) filed any voluntary petition in bankruptcy or
suffered the filing of an involuntary petition by his creditors; (iii)
suffered the appointment of a receiver to take possession of all or
SUbstantially all of his assets; (iv) suffered the a~tachment or other
judicial seizure of all, or substantially all, of his assetsi (v)
admitted in writing his inability to pay his debts as they come d~e; or
(vi) made an offer of settlement, extension or composition to his credi-
tors generally.
- 8 -
ARNOLO &.- SLIKE. "nOlllMH\T.l\"". 21M MUkIT nlUn. CA'" UllL.'" HOll
J
G. To the best of seller's knowledge, the property does
not contain, nor has there been any disposal, discharge, spill or appli-
cation on or below the surface of the property of any hazardous wastes,
hazardous substances, hazardous materials, toxic substances, hazardous
air pollutants, or toxic pollutants, as those terms are used in the
Resource Conservation and Recovery Act, the Comprehensive Environmental
Response and Compensation Liability Act, the Hazardous Materials Trans-
portation Act, the Toxic Substances Control Act, the Clean Air Act, and
the Clean Water Act, or in any regulations promulgated pursuant thereto,
or in any applicable state or local law, regulation or ordinance.
H. seller has received no notice from any local governing
body or municipal authority of the existence of any zoning or subdivis-
ion violations with respect to the property.
I. The representations and warranties set forth in this
Paragraph 7 shall be continuing warranties and shall relate to the
conveyances in each of the phases of this agreement.
8. Possession. Riqht of Access. Privilege is given to the
purchaser, its agents, representatives or employees, to enter the
property at any reasonable time and location, from time to time, to make
such preliminary inspections, test borings and surveys as may be reason-
ably necessary to permit the design of or plans for any improvements to
be made by purchaser on the property.
If all of the transactions
contemplated hereby do not close, purchaser shall restore any of the
property not acquired to the condition it was in prior to any such
inspection. Purchaser agrees to protect, defend, indemnify and hold
seller harmless from all claims that may be made by any third party
against seller as a result of purchas~r, its agents, r~presentatives or
employees entering onto the property and shall upon request deliver to
seller evidence of personal injury and property damage insurance reason-
ably satisfactory to seller.
- 9 -
ARNOLD Ii: SLIKE. "nOlNtn.AJ.l.AW, 21M \IAUn STun. CA'lP HILL. P" IJOIl
oJ
..-,.....
.
Other than as described in the preceding paragraph, possession
shall be given at settlement; except that, seller shall be given an
additional 180 days after notice given by purchaser sUbsequent to the
first closing to remove equipment and other tangible property from any
buildings on the property.
9. Purchaser's Due Diliqence.
A. Title. Purchaser shall obtain at purchaser's expense,
within 30 days from the date hereof, a commitment for title insurance
issued by a reputable title insurance company committing to insure the
property and/or a phase under a standard ALTA policy showing good and
marketable title in the name of the seller (the "commitment"), free and
clear of any exceptions, easements, restrictions or reservations
(including the details of and more specific location of the known ease-
ments), excepting these acceptable to purchaser ("permitted excep-
tions"). If the commitment discloses exceptions to the title, other
than permitted exceptions, purchaser shall notify seller within 30 days
of the date hereof and, unless seller and purchaser agree in writing as
to the disposition of such objections within 45 days of the date hereof,
purchaser may, at its option, upon written notice to seller, rescind
this agreement and all earnest money deposited shall be promptly return-
ed to purchaser by seller and thereafter this agreement shall be ter-
minated. A failure by purchaser to notify seller of such objections
within 30 days shall be construed as meaning that such objections are
"permitted exceptions."
B. Permits. Purchaser, at its cost, shall use its best
efforts to obtain all necessary permits and approvals from governmental
bodies for the subdivision of the property into phases and the construc-
tion of the improvements contemplated by the purchaser, including with-
out limitation, planning commission approval, DER approval, Sewer Per-
mits, building permits, zoning approvals, and the like. The aforesaid
permits and approvals are hereafter called the "permits." Purchaser
shall promptly apply for all permits. Seller shall cooperate with
purchaser to enable purchaser to procure all permits. Due'to the.
limited time between the date of exercising of an option and the corres-
ponding closing date, seller agrees, if requested by purchaser, to
execute and deliver any document related to any permits preliminary to
- 10 -
ARNOLD Ie SLlKE. AnOlll.N[U.o\T.lA\\. 21M "fAUn nun. CAMP Hill. PA 11011
.
,/ ,
the exercise of an option or closing, as the case may be, including any
subdivision plan or approval of requested zoning amendments, provided,
however, no such document shall be deemed to be operable and final
unless and until:
l. The permit to which such document relates has
been approved by all required municipal bodies;
2. The option for the property to which the permits
relates has been exercised; and
3. A closing is held for the property to which the
permit applies.
10. Purchaser's Default. Should the purchaser violate or fail
to perform any of the terms or conditions of this agreement in a timely
fashion, inclUding purchaser's obligation to make additional deposits
pursuant to Paragraph 2-B. hereof, seller shall notify purchaser of such
default in writing. In the event that purchaser shall fail to cure such
default within 30 days of the receipt of such notice, seller may ter-
minate this agreement and retain the earnest money deposit, as the
seller's sole remedies hereunder, if an option has not been exercised to
purchase the property; but after purchaser has exercised an option to
purchase either the industrial property or the residential property,
purchaser shall be committed to purchase the balance of the property
covered by the option so exercised. In such event, seller, at its sole
discretion, may retain all earnest money deposits and purc~aser shall be
obligated to reimburse seller for all out of pocket obligations, includ-
ing legal and engineering fees, or seller may institute an action for
- 11 -
ARNOLD &: SLlKE. "nOR'lU-A'.l""'_ WI' MAun STUB. c:,,'., UILL. r" If 011
specific performance. After an option has been exercised to purchase
either the industrially-zoned land or the residentially-zoned land,
should purchaser default in the payment of the purchase moneys for any
phase thereof, the payment for the balance of the purchase price for all
of the subsequent phases relating to that option shall be accelerated
and immediately become due and payable; provided that, simultaneously
with the payment thereof, seller shall convey all of the property for
which such payment has been made to purchaser in accordance herewith.
The remedies set forth here'~ shall be seller's sole remedies.
11. Seller's Default. Should the seller violate or fail to
timely perform any of the terms or conditions of this agreement, pur-
chaser may terminate this agreement and, in addition to recovering the
unallocated portion of the earnest money deposit, may recover all out of
pocket expenses, inclUding legal and engineering fees, and may sue for
specific performance. If the property or a portion thereof for which an
option has been exercised pursuant hereunder at the time of closing or
in preparation thereof is subject to a lien or other encumbrance which
is not a permitted exception, purchaser, at its sole option, rather than
pursuing its remedies hereunder may proceed to close thereon but may use
such portions of the purchase price as may be necessary to remov~ any
such lien or encumbrance. The remedies set forth herein shall be pur-
chaser's sole remedies.
- l2 -
ARNOLD Ir SLIKE. AnOlNnS.Af.l.AW,1Iot ~U.U[T nun. CAMP HILL.'.... nOli
.
. ,
----
.
12. Condemnation.
If, prior to the exercise of any option,
part of the property or the entire property is taken by proceedings in
condemnation, seller shall immediately give written notice thereof to
purchaser, and purchaser may, at its option, participate in the condem-
nation proceedings and collect such award as the condemnor may apportion
to purchaser, or to terminate this agreement and be entitled to return
of the earnest money deposits made prior to the date of the condemna-
tion. If condemnation occurs after the date of any exercise of an
option to purchase, purchaser shall be entitled to all of the condemna-
tion proceeds upon paying the balance of the purchase price, or may
terminate the agreement as it relates to any unconsummated purchases and
shall be entitled to such part of the condemnation award as condemnor
may apportion to purchaser, or in the absence of such allocation, shall
be entitled to receipt of an equitaable portion of the award. This
paragraph shall survive all of the closings.
13. Exercise of OPtions to Purchase. The options hereby
granted to acquire the industrial ground or the residential ground in
the phases hereinbefore described shall be exercised only by written
notices to that effect, specifically referring to this agreement and the
phase (or the entire industrially-zoned property or residentially-zon~d
property) to be acquired setting forth the purchase price therefor and
accompanied by a proposed subdivision plan (or a draft thereof) prepared
- l3 -
ARNOLD" SLIKE. ^nOlSln.A.T.UW.1101 MA.l~n Hun. CA.\I, HILI.', HOll
..
by a licensed surveyor certifying the acreage of the phase (or the
entire industrial or residential property) being acquired. A similar
proposed subdivision plan shall likewise be submitted to seller not
later than the giving of notice for closing of any subsequent phase.
The notices shall be mailed, postage prepaid, registered or certified
mail, return receipt requested, addressed to the seller at the address
set froth in Paragraph 16 hereof. The date and time of the deposit of
such notice as evidenced by the receipt from the u.s. Post Office shall
be the sole evidence thereof.
The options shall be exercised on or before 5:00 p.m., Eastern
Time, and not later than the dates set forth in Paragraphs 3.A.4 and
3.B.5, respectively.
14. ~. Unless purchaser shall have previously exercised an
option to acquire a phase or the entire property, or unless otherwise
extended by agreement of the parties hereto, this agreement shall expire
at ll:59 P.M. as to the industrial ground on the lst day of January,
1990 and, as to the residential ground, on the lst day of January, 1993.
15. Broker's Commission. Seller represents and warrants th~t
there are no effective listing agreements in connection with this sale
other than that with Spectrum Services, Inc. by its salesman, Don Erwin.
- l4 -
ARNOLD &: SLIKE. "nO"~tnH.UW. 2104 \l\Rtrr;ET nun CAMP HIll.'" 17011
.
Seller shall pa~ the commission to Spectrum Services, Inc. and Don Erwin
in accordance with seller's contract with such broker. Seller and
purchaser each agree to indemnify and save the other harmless against
any other such claim for such services and from all liabilities arising
from any claim for other brokerage commission or commissions or finders'
fees or fees, by or through such indemnifying party. It is understood
and agreed by seller and purchaser that Spectrum Services, Inc. is
affiliated with and has an identity of interest with purchaser.
16. Notices.
All notices provided for in this agreement
shall be directed by registered or certified mail, return receipt
requested (as set forth in Paragraph 14 hereof) to the parties at the
addresses set forth below, or at such other addresses as the parties
shall designate to each other in writing:
If to seller, to:
with a copy to:
Mr. Kenneth K. Hart
R. D. 1I1
Ickesburg, PA 17037
John E. Slike, Esquire
Arnold & Slike
P. O. Box 737
Camp Hill, PA 1701l-0737
If to purchaser, to:
with a copy to:
A. C. Schwotzer, President
Crossgates, Inc.
3555 Washington Road
McMurray, PA l53l7
Regis D. Murrin, Esq.
Reed Smith Shaw & McClay
435 Sixth Avenue
Pittsburgh, PA 15219
~
- 15 -
ARNOLD Ie SLlKE. ,no..:o.ol'U,U.l"\\, 21" MUUT SlIltT. CAM' HILL.'A 11011
...... ......
Notices shall be deemed given when received or refused.
17. Governinq Law. This agreement and the rights and obliga-
tions of the parties shall be governed by the laws of the Commonwealth
of Pennsylvania.
18. Amendments. This agreement shall not be amended except in
writing executed by the parties hereto.
19. Time of Essence. If, after exercise of an option, full
performance of the acquisition under such exercise is not completed by
the applicable dates set forth in Paragraph 3 hereof, either party shall
have the right, after that date, to declare time to be of the essence as
to such closing by giving written notice to the other party, fixing the
time, date and place for such closing, which date may not be sooner than
15 days nor later than 30 days following the effective date of giving
such notice. In all other respects, time shall be of the essence in the
performance of the obligations hereunder and, except for the occurrence
of events beyond the reasonable control of either party, failure to
comply with the time deadlines set forth herein shall be a default
hereunder.
20. BntireAqreement. This agreement and the exhibits
attached hereto constitute and contain the entire and only agreement
- l6 -
ARNOLD Ie SLlKE. AnOIlSl'f5.AT.U\\. :uo. ~"'lU.n STRUT. CA"P HilL. PA IrOIl
.
.
.
between the parties and supercedes and cancels any and all pre-existing
agreements and understandings relating to the subject matter hereof.
21. Severability. If any provision of this agreement or the
application hereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this agreement and the
application of such provisions to other persons or circumstances shall
not be affected thereby and shall be enforced to the greatest extent
permitted by law.
22. Bindinq Aqreement. This agreement shall be binding upon
and inure to the benefit of the parties hereto, their respective heirs,
successors or assigns.
23. Surveys. Enqineerinq, Etc. In the event that purchaser
fails to exercise either of the options contained herein or, after the
exercise of the option, fails to complete the purchase of all the prop-
erty as required, purchaser shall turn over to seller all of its stud-
ies, engineering, surveys, costs estimates, etc. relating to the devel-
opment of the tract without charge therefor.
- l7 -
ARNOLD II: SLtKE. AnoaNnS.AT.u'W, 210t MAUlT nun, CAM' HILL. rA nOli
.J., \
. II
. .
IN WITNESS WHEREOF, the parties hereto have set their hands and
seal~ the day and year first above appearing.
WITNESS:
SELLER:
/: 'II'"
;I ,,,, n" ,,' , ~ //."1,t
, Kenneth K. Rart
(SEAL)
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,:,0( t', I.' ~ <, . 7./~I,l:Z-
Louise S. Hart
(SEAL)
PURCHASER:
ATTEST: CROSSGATES, INC.
~jK~;f .7
- l8 -
c
ARNOLD &: SLlKE. AnORN[YS-AT.L,w, 21M MAIllrt.U STun. CAW' HILL. PA nOli
'i'.\
DONALD H. ERWIN, . IN THE COURT OF COMMON PLEAS OF
.
Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
.
:
v. . NO.
.
.
.
KENNETH K. BART J :
SPECTRUM SERVICES, INC., :
and CROSSGATES, INC., . CIVIL ACTION - LAW
.
Defendants .
.
V E R X F X CAT X 0 H
The above COMPLAINT is based upon information which I have
furnished to my counsel and information which has been gathered by
my counsel in preparation of the filing of this COMPLAINT. The
language of the COMPLAINT is that of counsel and not of me. I have
read the COMPLAINT and to the extent that the COMPLAINT is based
upon information which I have given to my counsel, it is true and
correct to the best of my knowledge, information, and belief. To
the extent that the content of the COMPLAINT is that of counsel, I
have relied upon counsel in making this verification. I hereby
acknowledge that the facts set forth in the aforesaid COMPLAINT are
made subject to the penalties of 18 Pa. C.S. 54904 relating to
unsworn falsification to authorities.
DATE: Ip~~-1?
~~~
DONALD H. ERWIN
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DONALD H. BRWIN,
Plaintiff
v.
: IN THB COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PBNNSYLVANIA
I
: NO. 95-5422 CIVIL TBRM
:
:
:
KENNBTH K. HART,
SPECTRUM SBRVICES, INC.,
and CROSSGATES, INC.,
Defendants
: CIVIL ACTION - LAW
:
TO THE PROTHONOTARY:
Please mark the above-captioned action settled and
discontinued with prejudice.
Attorney for Plaintiff,
Donald H. Erwin
DATB:
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