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HomeMy WebLinkAbout2011-8463 Civil Term TRUE RAILROAD REALTY, INC., : et al., : Plaintiffs : : v. : IN THE COURT OF COMMON PLEAS : OF THE NINTH JUDICIAL DISTRICT AMES TRUE TEMPER, INC., : Defendant : No. 11 8463 CIVIL TERM IN RE: CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS BEFORE GUIDO, MASLAND, and PLACEY, JJ. OPINION and ORDER OF COURT Placey, C.P.J., March 21, 2012. The issue in this declaratory judgment action involving a non-residential lease agreement is the interpretation of a contract provision in the nature of a purchase option. Presently before the court are cross motions for judgment on the pleadings. Both Motions have been fully briefed and argued and are, therefore, ripe for disposition. For the reasons Partial Judgment on the Pleadings and deny Plaintiff for Judgment on the Pleadings. PROCEDURAL HISTORY This action arises out of a dispute between Plaintiffs True Railroad Realty, Inc., et 1 al. and Defendant Ames True Temper, Inc. in the form agreement for a Purchase Option contained in a non-residential lease agreement. On November 10, 2011, Plaintiff filed a complaint in the nature of a declaratory judgment action in order to determine the rights between Plaintiff True Railroad Associates, L.P. 1 The following are limited partners of True Railroad Associates who were named as Plaintiffs in this action: Andrea Silvershein, Greg Silvershein, Lewis Norry, Lewis Norry Family GST Trust, Norry Brothers Company, Susan Goldberg, Alice Shapiro, Eric Singer, Hillel Norry, Hillel Norry Family GST Trust, Elliot Norry, and Elliot Norry Family GST Trust. True Railroad Realty, Inc. is a general partner of True Railroad Associates. See Complaint for Declaratory Relief, ¶1, filed November 10, 2011. The thirteen individual plaintiffs will be referred to collectively as Defendant Ames under a November 30, 1994 Lease Agreement between True Railroad Associates, as Landlord, and True Temper Hardware Company, as Tenant, and an Amendment thereto between True Railroad Associates and Defendant Ames, as successors in interest of True Temper Hardware Company, which was dated October 22, 2 2010. The Complaint included three attachments: 34 dated November 30, 1994; Amendment dated October 22, 2010; his capacity as President of True Railroad Associates, L.P., that was sent to Defendant Ames on November 9, 2011, which acknowledged both an attempt by Defendant Ames to exercise the Purchase Option and provided notice to Defendant Ames that True 5 Railroad Associates had terminated any agreement of purchase and sale. On November 29, 2011, Defendant Ames filed an Answer with New Matter and 6 Counterclaim, which sought, inter alia, a declaratory judgment in its favor. The Answer 7 included three attachments. Exhibit B was a letter dated November 10, 2011, which 8 was presumably sent in response to Mr. Silverter and referenced the fact Associatess] 9 Exhibit C was a letter dated November 11, 2011 from Mr. Silvershein to Defendant Ames, which rejected the $250,000.00 payment referenced in the November 10 10, 2011 letter; and Exhibit A was a Notice of Default, dated November 29, 2011, 2 Complaint for Declaratory Relief, filed November 10, 2011. 3 Exhibit A, attached to Complaint for Declaratory Relief, filed November 10, 2011. 4 Exhibit B, attached to Complaint for Declaratory Relief, filed November 10, 2011. 5 Exhibit C, attached to Complaint for Declaratory Relief, filed November 10, 2011. 6 7 wer with New Matter and Counterclaim are listed in chronological order. 8 Exhibit C, attached to Complaint for Declaratory Relief, filed November 10, 2011. 9 1. Additionally, the letter contests that, as of the date of the letter, the $250,000.00 was due, but explains that the sum 10 2 11 sent from Defendant Ames to True Railroad Associates. On December 16, 2011, 1213 Counterclaim. On December 29, 2011, Defendant Ames filed a Motion for Partial 1415 Judgment on the Pleadings, which was listed for the February argument term. On February 2, 2012, Plaintiff filed its Motion for Judgment on the Pleadings, which was similarly listed for the February argument term. STATEMENT OF FACTS For purposes of the cross-motions for judgment on the pleadings sub judice, the facts may be summarized as follows: Plaintiff True Railroad Associates is a Pennsylvania limited partnership with its registered offices located in Harrisburg, Dauphin County, 16 Pennsylvania. Defendant Ames True Temper, Inc. is a Delaware Corporation with its 17 principal place of business in Camp Hill, Cumberland County, Pennsylvania, and is the 18 successor in interest of True Temper Hardware Company. On November 30, 1994, 11 12 13 Defendant Ames contemporaneously filed a Motion for Protective Order and Stay of Discovery, which sought to icable contract provision will See Re Determining that the filing of a dispositive motion, alone, was insufficient to satisfy its burden to entitle it to a protective order or stay of discovery under the applicable Pennsylvania Rules of Civil Procedure, and following a on for Protective Order and Stay of Discovery, dated January 24, 2012. Plaintiff filed its Motion for Judgment on the Pleadings shortly thereafter, which alleged, inter aliahat there are no genuine issues -pending discovery requests. Order of Court, in re: Stay of Discovery, dated February 24, 2012. 14 al Judgment on the Pleadings Pursuant to Pennsylvania Rule of Civil Procedure 1034, filed December 29, 2011. 15 filed February 1, 2012. 16 Complaint Counterclaim, ¶1, filed November 29, 2011; see also supra, at n.1. 17 er and Counterclaim, ¶2, filed November 29, 2011. 18 Counterclaim, ¶3, filed November 29, 2011. According to the November 30, 1994 Lease, True Temper Hardware 3 Plaintiff True Railroad Associates and Defendant Ames (through its predecessor) entered 19 into an Amended and Restated Lease dated November 30, 1994 by which True Railroad Associates, as Landlord, leased to Defendant Ames, as Tenant, 20 approximately forty-four acres of land located in Hampden Township, Cumberland 21 County, Pennsylvania. Article 3 of the Lease provided fo 22 Lease 23 would permit Defendant Ames Article 3 of the Lease provided, in pertinent part, as follows: 3. Term. (a) Restated date hereof and the Basic Term shall terminate at midnight on April 30, 2012 or sooner pursuant to the terms of this Amended and Restated Lease * * * (b) Provided this Amended and Restated Lease is then both in full force and effect, and there is then no Event of Default (as defined herein), Landlord grants Tenant the option to extend the Basic Term for , exercised by written notice to Landlord given not less than one hundred eighty (180) days prior to the Expiration Date. The Renewal Term shall be governed by the provisions of this Amended and Restated Lease, except that the fixed rent for the Renewal Term shall be at the annual rental rate set forth in Article 4. TIME SHALL BE OF THE ESSENCE WITH RESPECT T AMENDED AND RESTATED LEASE. Any final cancellation or Company was an Ohio Corporation with offices in Camp Hill, Cumberland County, Pennsylvania. See Exhibit A, p. 1, attached to Complaint for Declaratory Relief, filed November 10, 2011. 19 Exhibit A, attached to Complaint for Declaratory Relief, filed November 10, 2011. 20 in Paragraph 1 of the Lease. See Exhibit A, attached to Complaint for Declaratory Relief, filed November 10, 2011. 21 Exhibit A, attached to Complaint for Declaratory Relief, filed November 10, 2011; Complaint for Declaratory November 29, 2011. 22 ommenced on November 30, 1994 and extended to April 30, 2012. 23 Exhibit A, art. 3, attached to Complaint for Declaratory Relief, filed November 10, 2011. 4 termination of this Amended and Restated Lease shall terminate the right of renewal hereunder. Article 42 of the Lease outlined the details regarding purchase. This Article, which is at the core of the instant dispute, provided, in part, as follows: 42. Purchase Option. (a) The Option. Landlord hereby gives and grants to Tenant Demised Premises on the terms and conditions hereinafter set forth. (b) The Option Period. Tenant may exercise the Purchase Option at any time during the period commencing on January 1, 2011, (c) Exercise of Option. Provided Landlord has not then notified Tenant of an Event of Default which remains uncured, Tenant may exercise the Purchase Option at any time during the Option Period by giving to Landlord a written notice to that effect. In the event the Purchase Option is exercised by Tenant, the terms and conditions 24 hereinafter set forth in this Article 41 [sic] shall be and become the contract of purchase and sale between Tenant and Landlord for the 25 Demised Premises. Additionally, Article 42 of the Lease provided for the calculation method that the parties would utilize in determining the purchase price if Defendant Ames exercised the 26 Purchase Option. The calculation method required, inter alia, the selection of an experienced independent appraiser by True Railroad Associates, who would determine, with a second experienced independent appraiser selected by Defendant Ames, the 27 The paragraph concerning the closing of the transaction for the sale and the purchase of the Demised Premises provided, in pertinent part, as follows: 24 The parties agree that the Purchase Option provision in the Lease consistently refers to the Purchase Option, which is clearly numbered Article 42, as Article 41. Additionally, the succeeding numbered paragraph, entitled Counterparts. 25 Exhibit A, art. 42(a)-(c), attached to Complaint for Declaratory Relief, filed November 10, 2011. 26 Exhibit A, art. 42(d), attached to Complaint for Declaratory Relief, filed November 10, 2011. 27 Exhibit A, art. 42(d), attached to Complaint for Declaratory Relief, filed November 10, 2011. 5 (e) The Closing. The transaction for the sale and purchase of the Demised Premises shall be closed by the execution and delivery of the deed and other closing instruments as provided in paragraph (h) of this Article 41 [sic] and earlier than March 1, 2012, and no later than April 30, 2012 (the . . . Tenant shall deposit by wire transfer of immediately system the funds required for the Closing into the trust account of the Title Company and the funds shall be disbursed by the Title Company to 28 or for the account of Landlord. Furthermore, Article 42 of the Lease contained a provision entitled Defaults and Remedies, which provided as follows: (i) Defaults and Remedies. If either party should fail to perform any of its obligations under this Article 41 [sic] after the exercise of the Purchase Option and before the Closing within the applicable time period specified herein, or if no such time period has been so specified, within seven (7) days after the other party has given to the defaulting party written notice of such event, then the other party shall have the right, at its option and without further notice, to exercise and enforce any one or more of the following rights and remedies: (i) to the extent permitted by law, it may sue for specific performance; (ii) it may terminate the agreement of purchase and sale which resulted from the exercise of the Purchase Option by giving to the defaulting party written notice of such termination; (iii) it may sue for damages resulting from the breach; or (iv) it may exercise and enforce any other right or remedy afforded to it 29 by law or equity. Regarding the timing that the Purchase Option was to be performed, Article 42(j) of the ence with respect to the performance to 30 each and every provision of this Article 41 [sic On October 22, 2010, Defendant Ames es 28 Exhibit A, art. 42(e), attached to Complaint for Declaratory Relief, filed November 10, 2011. 29 Exhibit A, art. 42(i), attached to Complaint for Declaratory Relief, filed November 10, 2011. As discussed infra, Notice of Purchase Option Exercise, there is no need to address whether the $250,000.00 paid to True Railroad Associates was 30 Exhibit A, art. 42(j), attached to Complaint for Declaratory Relief, filed November 10, 2011. 6 3132 . The Lease Amendment, the validity of which is not disputed, referenced the Lease and provided, in pertinent part, as follows: EXERCISE OF RENEWAL OPTION 2. . Pursuant to Paragraph 3(b) of the Lease, Ames exercises its option to renew the Lease, extending the terms and conditions of the Lease through April 30, 2020. The renewal option shall be effective upon payment by True to Ames of $250,000. Such payment shall be made on or before December 31, 2010 and is to be utilized by Ames for building improvements, maintenance, repairs or other items it deems fit in its sole discretion. If such payment is not made on or before December 31, 2010, then this Amendment shall terminate and be of no further force and effect and Ames will be deemed to not have exercised its option to renew lease. Pursuant to the Lease Amendment, the $250,000.00 paid to Defendant Ames by True Railroad Associates would be paid back to True Railroad Associates if Defendant Ames 33 exercised the Purchase Option contained in the Lease. The provision in the Lease Amendment concerning the Purchase Option provided, in its entirety, as follows: PURCHASE OPTION 3. . If Ames exercises the Purchase Option set forth in Paragraph 42 of the Lease, the $250,000 paid to Ames pursuant to this Amendment shall be paid to True. Payment shall be made upon execution of the Purchase 34 Option. On October 26, 2011, 35 in the Purchase Option of the Lease, Defendant Ames sent a written notice to True Railroad Associates that 36 exercise the Purchase Option Notice of Purchase Option Exercise. On 31 Exhibit B, attached to Complaint for Declaratory Relief, filed November 10, 2011. 32 See Exhibit B, attached to Complaint for Declaratory Relief, filed November 10, 2011 (Interestingly, the following language appeared directly above the WHEREOF, and intending to be legally bound, this Amendment is executed Exhibit B, attached to Complaint for Declaratory Relief, filed November 10, 2011 (emphasis supplied). This is not the only occasion the term executed was utilized in the agreement as denoting the requirement of a writing and signature. See, e.g., Exhibit A, art. 11A (f), art. 28, attached to Complaint for Declaratory Relief, filed November 10, 2011. 33 See Exhibit B, art. 2, attached to Complaint for Declaratory Relief, filed November 10, 2011. 34 Exhibit B, art. 3, attached to Complaint for Declaratory Relief, filed November 10, 2011 (emphasis supplied). 35 Exhibit A, art. 42(b), attached to Complaint for Declaratory Relief, filed November 10, 2011. The Option Period, as defined in Article 42(b) of the Lease expired on October 31, 2011. 36 See ter and 7 26, 2011 letter, contending that, according to the Lease Amendment, Defendant Ames was required to concurrently pay to True Railroad Associates the $250,000.00 with its Notice of Purchase Option Exercise, and that, payment of $250,000.00 upon providing the Notice of Purchase Option Exercise 37 Purchase Option was not effectively exercised during the option period. In its November 9, 2011 letter, True Railroad 38 [Associates] does November 9, 2011 letter. In its response, Defendant Ames set forth its position that, according to the Lease Amendment 39 . position was articulated in the following paragraph of its November 10, 2011 letter: The $250,000 payment is not a deposit or down payment to be made prior to closing on account of the purchase price; rather, the $250,000 is essentially reimbursement to the landlord for the payment of $250,000 made by the landlord to Ames True Temper under the preceding paragraph 2 of the Lease Amendment, and that reimbursement would only be made if and when the parties actually consummated the purchase and sale of the 40 Property, not simply upon the giving of notice of exercise of the Purchase Option. Despite its position, Defendant Ames notified True Railroad Associates that it had 41 against the purchase price a However, via correspondence dated November the record. 37 Exhibit C, attached to Complaint for Declaratory Relief, filed November 10, 2011. 38 Exhibit C, attached to Complaint for Declaratory Relief, filed November 10, 2011. 39 40 court notes that True Railroad Associates filed its Complaint for Declaratory Relief the day after sending the November 9, 2011 letter asserting that the Notice of Purchase Option Exercise was ineffective. 41 8 11, 2011, True Railroad Associates rejected Defen and 42 declared that the Purchase Option provision had been terminated. On November 29, 2011, Defendant Ames sent to True Railroad Associates a Notice of Default which asserted that True Railroad Associates was in default due to its failure to select an independent appraiser to participate in the determination of the 43 ticle 42(d) of the Lease. 44 Following the filing of its Answer with New Matter and Counterclaim, to which 45 Plaintiff True Railroad Associates replied, Defendant Ames moved for Partial Judgment 46 on the Pleadings. In its motion, Defendant Ames asserted that the $250,000.00 was payable at the closing on the Property rather than at the exercise of the Purchase Option. Railroad Associates filed its own Motion for Judgment on the Pleadings and subsequently listed the case for argument. In its motion, Plaintiff True Railroad Associates asserted that, to have validly exercised the Purchase Option, Defendant Ames was obligated to concurrently have provided notice of its intent to exercise the Purchase Option and have paid to True Railroad Associates $250,000.00, pursuant to the Lease Amendment, and had not been properly executed during the Option Period, which subsequently expired on October 31, 2011. DISCUSSION Statement of law. The material facts of this case are not at issue, making judgment on the pleadings proper. See Pa.R.C.P. No. 1034. Pennsylvania Rule of Civil Procedure 42 2011. The court notes that the Complaint for Declaratory Judgment was filed by Plaintiffs one day before True Railroad Associates sent the November 11, 2011 letter to Defendant Ames. 43 claim, filed November 29, 2011. The court notes that the Answer with New Matter and Counterclaim was filed the same day Defendant Ames sent the Notice of Default to True Railroad Associates. 44 mber 29, 2011. 45 46 1034, filed December 29, 2011. 9 levant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for Pa.R.C.P. No. 1034(a). Of course, a motion for judgment on the pleadings may be granted in only those cases which are so free from doubt that a trial would clearly be a fruitless exercise. Office and disposed of in the same manner as preliminary objections in accordance with 47 C.C.R.P. 1034(a). Such a motion is in the nature of a demurrer, and the documents. Piehl v. City of Philadelphia, 604 Pa. 658, 987 A.2d 146 (2009); Cogley v. Duncan, 2011 PA Super 258, 32 A.3d 1288. In cases that turn upon the construction and interpretation of a written agreement, with no disputed issues of material fact, a motion for judgment on the pleadings may be appropriate. See, e.g., Travelers Cas. & Sur. Co. v. Castegnaro, 565 Pa. 246, 251, 772 A.2d 456, 459 (2001) (judgment on pleadings may be appropriate in contract interpretation); Gallo v. J.C. Penney Cas. Ins. Co., 328 Pa. Super. 267, 476 A.2d 1322 (1984) (judgment on the pleadings may be appropriate in cases which turn on the construction of a written agreement); Patton v. Mack Trucks, Inc., 360 Pa. Super. 1, 519 A.2d 959 (1986). Both purchase options and leases are contracts and are to be interpreted according to contract principles. Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385 (1986). Because the matter sub judice turns entirely upon the application and interpretation of the Purchase Option provision to the facts at hand, judgment on the pleadings is appropriate. Essentially, the issue is whether Defendant Ames 2011 Notice of Purchase Option Exercise effectively exercised the Purchase Option 47 the briefs fourteen days before the date set for argument, as set forth in Cumberland County Local Rule 1028(c)(5). While Plaintiff is correct in its assertion that, due to such noncompliance, the court could deny relief to Defendant Ames on the basis of tardiness alone, the court refuses to exercise the option to do so. It is not in the interest of judicial economy to delay rendering a decision. 10 contained in Lease and Amendment thereto. go beyond the plain meaning of the terms contained in these documents. The construction and interpretation of a written agreement is generally a question of law. See Insurance Adjustment Bureau, Inc. v. Allstate Ins. Co. 588 Pa. 470, 905 A.2d 462 (2006); East Crossroads Center, Inc. v. Mellon-Stuart Co., 416 Pa. 229, 230, 205 give effect to the intention of the contracting parties. Lesko v. Frankford Hospital-Bucks County, 609 Pa. 115, ___, 15 A.3d 337, 342, 2011 WL 590547 (2011); Mace v. Atlantic Refining Mktg. Corp., 567 Pa. 71, 785 A.2d 491, 496 (2001) (citing Shovel Transfer & Storage, Inc. v. Pennsylvania Liquor Control Bd., 559 Pa. 56, 65, 739 A.2d 133, 137 (1999) (citations omitted)). contract is contained in the writing itself. Shovel Transfer & Storage, Inc. v. Pennsylvania Liquor Control Bd., 559 Pa. 56, 65, 739 A.2d 133, 138 (1999). When the terms of a contract are clear and unambiguous, the meaning of the contract is ascertained from the contents of the document alone. Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385 (1986); Steuart v. McChesney, 498 Pa. 45, 49, 444 A.2d 659, 661 (1982). Unless otherwise defined in the contract, the terms used within a contract must be construed according to the accepted and plain meaning of the language used by the parties. J.K. Willison, Jr. v. Consolidation Coal Co., 536 Pa. 49, 54, 637 A.2d 979, 982 (1994). Application of law to facts. In the present case, Article 42 of the Lease clearly establishes a Purchase Option in favor of Defendant Ames. The provision pertaining to the exercise of the Purchase Option provides, inter alia] may exercise the Purchase Option at any time during the Option Period [(effective from 48 Additionally, the provision makes clear that, if the Purchase Option should be exercised, sic] shall be and become the 48 Exhibit A, art. 42(c), attached to Complaint for Declaratory Relief, filed November 10, 2011. 11 contract of purchase and sale between [Defendant Ames] and [True Railroad Associates] 49 According to subsection (e) of Article 42, the Closing of the Purchase Option execution and delivery of the deed and other closing 50 Relevant to the Purchase Option here, the 2010 Amendment alters the Lease in three ways: (1) that the term of the Lease was extended through April 30, 2020; (2) that True Railroad Associates was required to pay $250,000.00 to Defendant Ames for on the Demised Premises; and (3) that, if Defendant Ames exercised the Purchase Option in the Lease, Defendant Ames was required to return the $250,000.00 to True Railroad Associates. As to the repayment of the $250,000.00, the Amendment directs that it was to 51 execution of the True Railroad Associates argues that Defendant Ames did not properly exercise the Purchase Option due to its failure to pay the $250,000.00 upon its October 26, 2011 Notice of Purchase Option Exercise. As the basis for its argument, True Railroad The court cannot agree . As neither term is defined in either the Lease or Amendment, each much be afforded its ordinary meaning. See J.K. Willison, Jr. v. Consolidation Coal Co., 536 Pa. the verb [t]BLD (9th ed. 2009) LACKS AW ICTIONARY 52 (Westlaw). Conversely, Blacks Law Dictionary defines the verb 49 Exhibit A, art. 42(c), attached to Complaint for Declaratory Relief, filed November 10, 2011. 50 Exhibit A, art. 42(e), attached to Complaint for Declaratory Relief, filed November 10, 2011 (emphasis supplied). 51 Exhibit B, art. 3, attached to Complaint for Declaratory Relief, filed November 10, 2011 (emphasis supplied). 52 Dictionary. BLD, 594 (7th ed. 1999). Similarly, a pertinent definition of exercise contained in LACKS AW ICTIONARY the Merriam- Merriam- - 12 B LACKS 53 LD (9th ed. 2009) (Westlaw). AW ICTIONARY concluding stage in a process. 54 Pursuant to the Lease, exercising the Purchase Option required 55 to True Railroad Associates. A fair reading of the Lease and Amendment thereto compels the conclusion that the $250,000.00 payment was not intended to be a down payment or deposit to be made upon Defendant Ames giving notice of its intent to exercise the Purchase Option. Rather, the $250,000.00 payment was intended to be reimbursement to True Railroad Associates for previous payment to Defendant Ames under the preceding paragraph of the Amendment, Although True Railroad Associates contends that the provision required payment of the $250,000.00 to be made simultaneously with the Notice, such a reading of the Lease and Amendment is inconsistent with the contract in toto and with the natural meaning of the terms. Accordingly, the court must conclude that the $250,000.00 was to be paid at the closing, in addition to whatever Purchase Price was calculated for the Demised Premises. Notice of Purchase Option Exercise effectively exercised the Purchase Option set forth in Article 42 of the Lease. Based upon the foregoing, the following Order will be entered: 53 BLD, 589 (7th ed. 1999). Similarly, a pertinent definition of execute contained in the LACKS AW ICTIONARY Merriam- Merriam-- 54 Exhibit B, art. 3, attached to Complaint for Declaratory Relief, filed November 10, 2011. 55 Exhibit A, art. 42(c), attached to Complaint for Declaratory Relief, filed November 10, 2011. 13 ORDER OF COURT st AND NOW, this 21 Motion for Partial Judgment on the Pleadings Pursuant to Pennsylvania Rule of Civil ion for Judgment on the Pleadings, following oral argument held on February 24, 2012, and for the reasons stated in the accompanying is granted and it is declared as follows: 1.Defendant Ames True Temper, Inc. effectively exercised the Purchase Option pursuant to its notice of October 26, 2011; 2.The Amendment to Lease Agreement did not obligate Defendant Ames True Temper, Inc. to concurrently tender the $250,000.00 payment with its Notice of Purchase Option Exercise. BY THE COURT, ____________________ Thomas A. Placey, C.P.J. Donald B. Kaufman Kimberly M. Colonna McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 For Plaintiff Mark D. Bradshaw, Esq. Stevens & Lee th 17 North Second Street, 16 Floor Harrisburg, PA 17101 For Defendant 14 TRUE RAILROAD REALTY, INC., : et al., : Plaintiffs : : v. : IN THE COURT OF COMMON PLEAS : OF THE NINTH JUDICIAL DISTRICT AMES TRUE TEMPER, INC., : Defendant : No. 11 8463 CIVIL TERM IN RE: CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS BEFORE GUIDO, MASLAND, and PLACEY, JJ. ORDER OF COURT st AND NOW, this 21 Motion for Partial Judgment on the Pleadings Pursuant to Pennsylvania Rule of Civil argument held on February 24, 2012, and for the reasons stated in the accompanying declared as follows: 1.Defendant Ames True Temper, Inc. effectively exercised the Purchase Option pursuant to its notice of October 26, 2011; 2.The Amendment to Lease Agreement did not obligate Defendant Ames True Temper, Inc. to concurrently tender the $250,000.00 payment with its Notice of Purchase Option Exercise. BY THE COURT, ____________________ Thomas A. Placey, C.P.J. Donald B. Kaufman Kimberly M. Colonna McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 For Plaintiff Mark D. Bradshaw, Esq. Stevens & Lee th 17 North Second Street, 16 Floor Harrisburg, PA 17101 For Defendant