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HomeMy WebLinkAbout02-5601RANDY HEISHMAN, individually and RANDY HEISHMAN t/d/b/a MANDY'S COFFEE SHOP, Plaintiff JOHN MUMMA, MICHAEL ADLER, and JOHN MUMMA and MICHAEL ADLER t/d/b/a LIBERTY HOLDING COMPANY : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : CIVIL ACTION - LAW :NO. O~-- NOTICE YOU ItAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the fi)llowing Complaint, 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 or objections to the claims set forth against you. You are x~.arned 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 Oomplaint 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 TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Phone: (717) 249-3166 RANDY HEISHMAN, individually and RANDY HEISIfMAN t/d/b/a MANDY'S COFFEE SHOP, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW JOHN MUMMA, MICHAEL ADLER, and : JOHN MUMMA and MICHAEL ADLER : t/d/b/a I,IBERTY HOLDING COMPANY : NO. COMPLAINT The above-referenced Plaintiff, Randy Heishman, individually and Randy Heishman t/d/b/a Mandy's Coffee Shop, by his attorney, KaN E. Rominger, Esquire, respectfully sets forth the following cause of action: I. Plaintiff, Randy Heishman is an adult individual currently residing in Cumberland County and owns and operates Mandy's Coffee Shop at 2 South Hanover Street, Carlisle, Pennsy vania. 2. Michael Adler is an adult individual believed to reside in Cumberland County and is a principal of Liberty Holding Company with its primary address at 1255 Claremont Road, Carlisle, Pennsylvania. 3. John Mumma is an adult individual believed to reside in Cumberland County and is a principal of Liberty Holding Company believed to be doing business at 1255 Claremont Road, Carlisle, Pennsylvania. 4. Upon information and belief, Liberty Holding Company is the fictitious name tbr a partnership between Defendants Mumma and Adler for the ownership and management of the property at 2 South Hanover Street, and other properties within a building there and situated at the Kronisgsburg building. 5. Plaintiff signed a lease with Defendants on about March 5, 1997 (Exhibit "A"). 6. Ancillary to that lease, Defendants have provided electricity for the maintenance, use and operation of Mandy's Coffee Shop. 7. Plaintiffagreed to pay the cost of the electricity that he utilized. 8. Plaintiff agreed to purchase that electricity from Defendants to the usual and customary practices associated with electrical distribution. 9. Defendants have installed the EMON DMON metering system which allows it to meter the use of electricity by Plaintiff. 10. Upon information and belief Defendants purchased the electricity in bulk, and then billed based upon said meter readings. 11. Plaintiff recently discovered that Defendants have been utilizing the wrong multiplier, which has resulted in a doubling of the bill for the electricity. 12. The multiplier is the number by which the meter reading is to be multiplied by before it is multiplied by the kilowatt per hour rates, and the meter has a multiplier of eight (8) and not sixteen (16) which has been billed previously. 13. Upon information and belief, Defendants knew or should have known that the electric bill was inaccurate. 14. Defendant Mumma is the owner of Carlisle Electric, and is an expert and has unique and particular knowledge in the field of electricity, wiring and metering. 15. Upon information and belief, the kilowatt per hour watt billed may not accurately reflect the cost of electricity and the bills may need further adjustment on that basis. ~2OUNT I. BREACH OF CONTRACT 16. Previous paragraphs are incorporated by reference as if fully laid out herein. 17. Plaintiffcontracted for by way of the lease and the actions of the parties, to have electricity provided. 18. a d electricity was to be billed for at the actual kilowatt per hour rate. and Plaintiff was to only be required to pay for electricity actually used. 19. The Lease (Exhibit "A") only speaks to utilities in a general way and requires Plaintiff to pa3' for the same. 20. Defendants have breached their contract by billing incorrect and excessive amotmts. 2 I. Plaintiff has overpaid thousands of dollars which could have been reinvested and reused in his business. 22. As a direct and proximate result of this overbilling Plaintiff has not been able to utilize certain profits and reinvest them for capitalization, expansion advertising, marketing, or other essential business needs. 23. In addition to any overpayments and the interest due thereon, Plaintiff has been damaged and his business has been harmed and reduced because of this unwarranted financial drain. WHEREFORE, Plaintiff demands the return of any and all over payments in an anliquidated amount which will be proven at trial, including interest, costs, attorney fees and the like. In addition, Plaintiff demands judgment against Defendants for lost business and revenue in an unliquidated amount ~vhich would be proven at trial. COUNT Il. FRAUD 24. Previ°us paragraphs are incorporated by reference as if fully laid out herein. 25. Upon information and belief, it is believed that Defendant knew that the proper multiplier was eight (8), but instead chose to use sixteen (16). 26. Upon information and belief, said double bills were sent through the mail with expectation that they would be paid. 27. Said bills were paid and/or held as outstanding against Plaintiff: 28. The actions Defendants were outrageous, willful and wanton. 29. The reckless or intentional use of the multiplier was done to create pecuniary gain for Defendants. WHEREFORE, Plaintiff'demands return of any and all overpayments in an amount liquidated amount which will be proven at trial, along with compensatory damages for loss of business, as well as attorney fees and punitive damages in an amount to be proven at trial. COUNT III. UNJUST ENRICHMENT 30. Previous paragraphs are incorporated by reference. 3 I. Plaintiff provided money to Defendant for electricity. 32. Plaintiff'overpaid Defendant because Defendant used the wrong multiplier and/or other wrong data in computation of the bills. 33. Defendant has been enriched by said overpayments and said enrichment is unjust and unfair. 34. Plaintiff is entitled to the balance of the overpayments. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter a judgment in PlaintiWs favor and against Defendants for the amount of the overpayments in an unliquidated amount to be proven at trial. Respectfully submitted, ROMINGER & BAYLEY Date: November 19, 2002 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff RANDY tfEISHMAN, individually and RANDY HEISHMAN t/d/b/a MANDY'S COFFEE SHOP, Plaintiff JOHN MUMMA, MICHAEL ADLER, and JOHN MUMMA and MICHAEL ADLER t/d/b/a LIBERTY HOLDING COMPANY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. VERIFICATION KARL E. ROMINGER, ESQUIRE, states that he is the attorney for, this action: that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa.C.S. ~4904. relating to unsworn falsification to authorities. in Date: Karl E. Rominger, Esquire-- Attorney for VERIFICATION I verify that I am the petitioner and that the statements made in the foregoing Petition are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. ,~ 4904, relating to unswom falsification to authorities. Date: ~-- / ' angrY Hels~manhnd~vidually t/d/b/a Mandy's Coffee Shop COM, UERCIAL LEASE PARTIES PREMISES TEI~4 RENT IN CONSIDERATION of which, the sa~d Lessee agrees to pay Io the said dollers($1,800.00),to be payable as follows, wz the firlt month of con$ideratio~ of One thousand, eighl hundred dollars(SI,S00 00), to be December 3t, 2001. P.05 SECURITY DEPOSIT UTILITIES service, light, telephone, or any other comm~nlGation or utility earvice THE DEMISE HEREIN CONTAINED I~ MADE AND ACCEPTED ON THE FOLLOWING EXPRESS CONDITIONS; ~LACE OF PAYMENT 243.3000 2. INABILITY TO GIVE POSSESSION 3. HOLDING OVER AS RENEWAL A holding over by lhe Lessee beyond the term of Ibis Leale ir eey hereinatte~ d~ly authorized additional term shall he deemed a renewal et {c) ALTERATIONS AND IMPROVEMENTS improvement(sI in writing, w~ich appt0vel should not be unrlalonably ASSIGNING, ETC BY LESSEE 5 LES$OR'S RIGHTS [a) EIGHT OF INSPECTION (b) RULES AND REGULATIONS 6 RESPONSIBILITY OF LESSEE (a) DAMAGE OR INJURIES TO PROPERTY REIMBURSEMENT OF [XPENS~S OF CURfNG fENANT$ DEFAULT (d) DISCI~ARGE Of LiABILiTY BY LESSEE 7. COMPLIANCE WlTif GOV£RNMENTAL REGULATIONS by the Lessee, The Lessor hareby agree~ to pay the fu~l cost dollars($1,000,O00,OO). of any injury, Joss and/or d~mage to ~ny person or proporty in tbi ~imised efficiency of the 6 LEASE CONTAINS ALL AGREEMENTS 18 GENDER AND NUMBER HEADINGS, NO PART OF LEASE 21 SIMILAR PROVISIONS iN WITNESS WHEREOF, i/we set my/our hand(S) a~d seal(s) the day. ....................... (SEAL~ By (SEAL) ~U~e.r_l.y~.o~l ~_lng Co___m~a n ~_ ( SEAL (SEAL) SHERIFF'S RETURN - REGULAR CASE NO: 2002-05601 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HEISHMAN RANDY ET AL VS MUMMA JOHN ET A RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon the MUMMA JOHN DEFENDANT , at 1255 CLAREMONT ROAD CARLISLE, PA 17013 at 0852:00 HOURS, on the 25th day of November , 2002 BOBBI STAVER, BOOKKEEPER by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 31.45 Sworn and Subscribed to before me this ~ ~ day of ~ ~o~J~ A.D. ~ / Prothonotary So Answers: R. Thomas Kline 11/27/2002 A ROMINGER & BA~ By:~ ~ y~puty Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2002-05601 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HEISHMAN RANDY ET AL VS MUMMA JOHN ET A , Sheriff or Deputy Sheriff of RICHARD SMITH Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon the ADLER MICHAEL DEFENDANT , at REMAX STERLING ROAD CARLISLE, PA 17013 at 1130:00 HOURS, on the 25th day of November , 2002 1909 RITNER HIGHWAY by handing to ARLENE JOHNSON, RECEPTIONIST a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 19.45 Sworn and Subscribed to before me this /~ ~ day of ~g~+~c~ 316'0 2_~ A.D. ' grot~l~not ary So Answers: R. Thomas Kline 11/27/2oo2 ROMIN~~ ' SHERIFF'S RETURN - REGULAR CASE NO: 2002-05601 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HEISHMAN P~ANDY ET AL VS MUMMA JOHN ET A , Sheriff or Deputy Sheriff of RICHARD SMITH Cumberland County,Pennsylvania, who being duly sworn according to law., says, the within COMPLAINT & NOTICE was served upon MUMMA JOHN & MICHAEI~ ADLER TDBA LIBERTY HOLDING COMPANY the DEFENDANT , at 1255 CLAREMONT ROAD CARLISLE, PA 17013 at 0852:00 HOURS, on the 25th day of November , 2002 BOBBI STAVER, BOOKKEEPER by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof.. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this /~ ~ day of ~~ jZ~2~ A.D. ! ~rothonotary So Answers: R. Thomas Kline 11/27/2002 ROMINGER &~ By: Deputy Sh~rif f Don Bailey Esquire BAILEY STRETTON & OSTROWSKI 4311 N. 6t~ Street Harrisburg, PA 17110 (717) 221-9500 dbailey~pa.net Attorney for Defendant John Mumma RANDY HEISHMAN, individually and) RANDY HEISHMAN, t/d/b/a ) MANDY'S COFFEE SHOP, ) ) Plaintiff ) ) VS. ) JOHN MUMMA, MICHAEL ADLER ) AND JOHN MUMMA, AND ) MICHAEL ADLER t/d/b/a LIBERTY ) HOLDING COMPANY, ) ) Defendants ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW NO. 02-5601 JURY TRIAL DEMANDED Comes Now the Defendant John Mumma and John Mumma t/d/b/a Liberty Holding Company and Answers the Complaint of Plaintiff in this matter. The Defendants also in this Response State New Matter and bring a Counterclaim. ANSWER OF DEFENDANT JOHN MUMMA AND JOHN MUMMA t/d/b/a LIBERTY HOLDING COMPANY~ WITH NEW MATTER AND COUNTER CLAIM. 1.) Admitted. 2.) Admitted. 3.) Admitted. 4.) Admitted. 5.) Admitted. By way of further response the lease contains a subsection © which governs "alterations and Improvements" to the subject premises. 6.) Admitted. By way of further response the lease contains a subsection © which governs "alterations and improvements" to the subject premises. 7.) Admitted. 8.) Admitted. 9.) Admitted. By way of further response the literature provided with the meter displays a multiplier of 16 premised on a 200 amp service. Plaintiff's service was a 100 amp service. Defendants erroneously assumed a 200 amp service when reading the multiplier off the meter. 10.) Denied. Plaintiffs allegation is an oversimplification and is not accurate or correct. 11.) Denied. The defendants error as to the multiplier was inadvertent, and, regardless, as stated herein, amounted to a small fraction of the rent and leasehold improvement costs for which the plaintiffs are still liable as stated in the new matter and counterclaim appended hereto and made a part hereof. 12.) Denied. The multiplier should have been 8 but only based upon the amperage of the service. See 9 above. The meter actually calls for a multiplier of 16. 13.) Denied. The defendants in no way distorted or intended to distort any figures as to multipliers, the error being a simple and plain error that the defendants learned of from the plaintiffs and for which they immediately compensated, leaving the plaintiffs with a net liability in excess of $50,000.00 due and owing to defendant. 2 14.) Admitted in part, denied in part. It is admitted that the respondent Mumma is the owner of Carlisle Electric and has significant knowledge of the field of electrical applications. However, any inference that this knowledge could, or would, translate into an immediate or implicit awareness of the multiplier to be used for the electric meter is emphatically denied. The error could have been made by anyone. 15.) Denied. The nature of this paragraph is at best speculative, is constructed in such a manner as to solicit a speculative response, and the same is beyond the ability of the respondent to answer. DEFENDANTS' ANSEWR TO COUNT I~ BREACH OF CONTRACT 16.) Respondents former answers above are incorporated by reference herein. 17.) Admitted in Part, Denied in part. Any inference that Plaintiff contracted separately, or only, for the payment of electrical utilities and not for leasehold improvements and the rent of the facility, on behalf of himself and t/d/b/a as Mandy's Coffee Shop, is denied. 18.) It is admitted that plaintiffs were to pay for electricity they used. By way of further response the multiplier for the amp service for the facility and the information provided with the meter indicated a 16 multiplier. However the amp service was 100 amp and therefore the multiplier should have been eight. This was a simple error and was inadvertent. 19.) Admitted in part, Denied in part. It is admitted that the lease Exhibit "A" to the Complaint speaks to utilities in general and requires plaintiffto pay for the same. The lease also speaks to leasehold improvements and rent, and plaintiff also agreed to pay for those items. 20.) Denied. The issue of billing as to electricity usage was an inadvertent error on the multiplier, however, the plaintiff's intentionally did not pay their rent, nor did they pay for leasehold improvements, and in fact, plaintiff's are in breach of contract and defendants deny being in breach of contract. The contract must be read as a whole. 21.) Denied. Plaintiff failed to pay thousands of dollars that was due and owing on a timely basis for rent and for leasehold improvements. In addition the plaintiff breached the agreement between the parties and defaulted on those payments. It is denied that plaintiffs paid "thousands of dollars" in overpayments, because, plaintiffs had a duty to pay monthly on amount for in excess of the electric bill which plaintiffs did not pay. Plaintiffs owe defendants over $50,000.00 in unpaid utilities under the lease which is, Exhibit "A" to the complaint. 22.) Denied. The allegations of this paragraph are false and misleading and are intentionally designed to distort and avoid the plaintiff's obligations under the contract, and the agreements between the parties. This paragraph is emphatically denied since a consequence of any comparison of rent, leasehold improvements, and utilities payments due from plaintiffs, when netted out against the utilities (electricity) overpayments indicate that the plaintiffs were grossly in default in relative amounts due and owing on a monthly basis, and any inference that monies would have been available after payment of plaintiff's monthly obligation adjusted for the erroneous electric bills is totally false since plaintiff did not pay in any event. This paragraph is emphatically denied as frivolous hyperbole and is totally false. 23.) Denied. These allegations are false, misleading, and devoid of merit. It is averred to the contrary that the plaintiffs' business, if it was damaged, had nothing to do 4 with the plaintiff's inabilities and failures to pay the defendants what was owed on a monthly basis sans any erroneous electricity costs. WItEREFORE the defendant requests the dismissal of the plaintiffs' complaint sounding in breach of contract as being false, misleading, and failing to net out to any supportable claim to the benefit of the plaintiff. DEFENDANT'S ANSWERS TO COUNT II~ FRAUD 24.) Defendant's previous answers are incorporated by reference herein. 25.) Denied. The information provided with the meter used at Mandy's Coffee Shop, which was installed by defendant's personnel, indicated a 16 multiplier. The error resulted from the size of the applicable service (100 amp) involved, was an error, and wasn't the fault of the defendant at ail. Being a mere error it was corrected immediately upon discovery. 26.) Denied. It is denied that the bills were double billed or that there was any intention to double bill. 27.) It is denied the bills were paid by the plaintiffs, and by way of further response, the plaintiffs not only refused to pay their electricity bill, but didn't pay for their leasehold improvements, then sought a modification of leasehold improvements, which, when reduced were paid by plaintiffs who then defaulted on those. Any inference that plaintiffs do not owe monies is denied. 28.) Denied. This ailegation is speculative self-serving, false, incorrect and is scandalous and impertinent since there is no evidence that defendants, who were grossly injured by plaintiffs' failure to pay their bills, acted in a vindictive manner or injured plaintiffs in anyway. The facts indicate the plaintiffs, in a net comparison of the facts and circumstances involving the contractual relationship between the parties, failed to adhere to, and grossly defaulted on their obligations, even if the innocent error on the electricity multiplier is taken into account. This paragraph should be stricken for the additional reason that is a purely speculative subjective utterance devoid of any objective factual support. 29.) Denied. It is emphatically denied that there was any intentional abuse of the multiplier to gain any advantage over the plaintiffs in this matter. By way of further response had defendants intentionally used the wrong multiplier, which defendants emphatically deny it still wouldn't have remotely compensated for the amounts of money due defendants' on a monthly basis under the terms and conditions of the lease as aforementioned. WHEREFORE the defendants request that this Court dismiss the Fraud Count as devoid of merit, as not pled with sufficient particularly, and as not supported by the facts in this case. The Court is further requested to strike this Count as scandalous. DEFENDANTS' ANSWERS TO COUNT III, UNJUST ENRICHMENT 30.) The defendants' answers and responses above are incorporated by reference herein. 31.) Denied. While it is admitted that the plaintiffs provided certain monies for electricity it is denied that they were current, or paid all of their bills in total, pursuant to thc terms of thc lease, or even that thc error on thc electricity payments was discovered by any of the parties prior to when the plaintiffs had defaulted. The plaintiffs are merely using their discovery of that error to create a bogus issue for ulterior legal purposes. 6 32.) It is admitted that plaintiff was over billed because of inadvertent use of the erroneous multiplier. It is denied that this could, or, would, have impacted significantly on the debts and payments due the defendants under the terms of the lease, but rather has become a rationale ie. excuse, by plaintiffs, who defaulted in far more serious and egregious fashion on the subject lease. It is specifically and emphatically denied that plaintiffs overpaid defendants for anything. 33.) Denied. The defendants are owed significant monies by the plaintiff and even if the error in the utility bills is accounted for, the defendants have been denied just and proper payment, under the terms and conditions of the lease, to a degree far in excess of, and for a far greater dollar amount, than the plaintiff is claiming as a consequence of over-billing for electricity, even if adjusted for the multiplier error. 34.) Denied. It is averred to the contrary that plaintiffs owe defendants over $50,000.00 for payments due under the lease even after the multiplier error is netted out. WHEREFORE the defendant requests that this Court deny plaintiff recovery in this matter and pursuant to the allegations of the new matter and counter claim herein make the defendants whole. NEW MATTER 35.) All previous responses to the paragraphs above are incorporated herein by reference. 36.) The plaintiff Randy Heishman individually and Randy Heishman t/d/b/a Mandy's Coffee Shop (collectively hereinafter Heishman) agreed to pay leasehold improvements through the terms of the subject lease on a monthly basis. 7 37.) Heishman agreed to not only pay leasehold improvements on a monthly basis, but he also agreed to pay rent and utility bills to the defendants on a similar basis. 38.) Heishman defaulted on those payments and is in default in excess of $50,000.00 plus interest which is due and payable to defendants. 39.) Defendants have demanded payments for these defaults but Heishman refuses to pay defendants the money they owe them. 40.) Heishman had easy access to the aforementioned meter and at no time was there any information kept from him, or any failure to disclose on the part of the defendants either the multiplier or meter readings. 41 .) On or about November 2002 plaintiffs filed and served the original complaint in this matter which complaint has never been properly verified. 42.) Plaintiffs complaint is jurisdictionally infirm and of no consequence for failure to conform to the Rules of Court. WHEREFORE the plaintiffs are required and requested to plead to the aforegoing new matter. COUNTERCLAIM ORIGINAL DEFENDANTS AGAINST ORIGINAL PLAINTIFFS 42.) The original defendants John Mttmma individually and John Mumma T/D/B/A Liberty Holding Company and Liberty Holding Company, hereby, as Counterclaim plaintiffs, bring this setoff and countemlaim against Randy Heishman individually and Randy Heishman t/d/b/a Mandy's Coffee Shop (collectively Heishman) as setoff and counterclaim defendants. 8 43.) The preceding answers to the original complaint, on a paragraph by paragraph basis, along with the allegations in defendants' new matter above are incorporated by reference herein. 44.) The defendants Randy Heishman individually and Randy Heishman t/d/b/a Mandy's Coffee Shop (hereinafter Heishman) agreed as per the lease terms and conditions of Exhibit "A" to the original complaint, ail of which is incorporated herein, to pay leasehold improvements during the term of the commercial lease involved, along with rem and utilities. 45.) Counterclaim defendants Heischman owes Counterclaim plaintiffs $45,238.00 for leasehold improvements plus interest. 46.) Counterclaim defendants owe Countemlaim plaintiffs $14,741.25 in unpaid rent by virtue of their default on the subject lease. 47.) Counterclaim defendants owe Counterclaim plaintiffs $1,676.53 for unpaid electrical bills in connection with the lease. 48.) The Counterclaim defendants owe counterclaim plaintiffs a total of $61,655.78 pursuant to the terms of the lease after the "multiplier" error is accounted for. WHEREFORE counterclaim plaintiffs demand $61,655.78 from Counterclaim defendants as setoff and counterclaim damages based upon legal theories of breach of contract and unjust enrichment together with legal interest, fees, costs, attorney's fees and such other relief as the Court may deem appropriate. AFFIRMATIVE DEFENSES 48.) The plaintiff in the originai action to this captioned matter have failed to state a cause of action for breach of contract. 9 49.) Plaintiffs to the original action of this matter has failed to make out a cause of action for fraud. 50.) Plaintiffs to the original action oft/tis matter has failed to make out a cause of action for Unjust Enrichment. WHEREFORE the Court is respectfully requested to dismiss the original complaint is this matter against the defendants. RESPECTFULLY SUBMITTED, BAILEYI~TRETT03~ OSTROWSKI 4311 N. 6TM STREET HARRISBURG, PA 17110 (717) 221-9500 dbaile¥~pa.net 10 CERTIFICATE OF SERVICE I, Don Bailey do hereby certify that on this JUNE 25, 2003 I served a tree and correct copy of DOCUMENT to the attorney below by First class-postage prepaid mail. KARL E. ROMINGER ESQUIRE ROMINGER & BAYLEY 155 SOUTH HANOVER STREET CARLISLE, PA 17013 RESPECTFULLY SUBMITTED, BAILEY STRETTON os DO"f',I"WAILEY, ESQUIP~ 4311 N. 6th Street Harrisburg, PA 17110 (717) 221-9500 :CARLISLE ELECTRIC Ii,lC FAX NO, :7172430204 May. 23 2003 03:39PM P2 Verificatioo I, John E: Mumma and'tYb/d/a Liberty Holding Co, do hereby swear that~ the foregoing ansWer,~New Matter and Comaterclaim are true and correct to best of my knowledge, and information, and belief. I take this oath knowing swearing falsely in a-o~-t pr~ure is ._~gainst the]aw. May23,2003 :CARLISLE ELECTRIC ]NC FAX NO, :7172438284 May. 23 2003 05:39PM PZ verificatioo I, John E. Mumma and't/b/d/a Liberty'Holding Co; do' hereby swear- that..the foregoing, ansV~er, iNe TM Matter and' Counterclaim true and correct to best of my knowledge,, and inforn~otion, arid belief. I take this-oath knowing swearing falsely in.a-e, ourt.proc~..dure is .ag~ingt_thelaw. May23,2003