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Home My WebLink About97-00482 , ,~ ,'. . ~ . -- - :'. __,i t~~:,:j::: "'ill"""'; ".,,;' f'l ,1J~L~" ,. I;; ,{P;J :~,' :i/':"~ '. ' :l', ,"(1, "~l ",. -a,,J). I. N '\.is-S ! :::::1 ::~m i '~ ~, : ~ ,.1, ~:~:;~l~~ft~?; :,,' .".,a.,rj'" ", 'i ,,'S!', '~:='I.'r! ,It, <.:,51J.Il' / ,~:;;tl:.~: ',' ....', '!'" . > 1:;,', ~ml ;il<il ~I '~': :E ! l ;- ~ . ;.: '-',' <, " .. , ;~;~ -'.". .',- ,," ,,) ,~ '~" ~. ',---! ;; " ~ ,..,-. .. ",- ,_ '. _,-:;1 - '. " . '. ~ ' ,..;,. ~,' ...:>~~,/. ;, '.l'{ " >,', .,' ; " '. :, ;.",' ~,," ,'/ :.~.:t. ",/,,' }:" ,; 'i;;~: .,' ," J'; : ~ ':~# ,11~]t~~;~~~~~r;.'" ~~~~~*Lf~~};'~1::~~~ti?-:' , '> .', ~ .. . '. .' .' ... , ..-'j, ,., ':- ....'. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COCHRAN & ALLEN, INC. , I Plaintiff I CIVIL ACTION - LAW I V. I I NO. 97-482 CIVIL TERM LINDA M. EWING and I MARTHA K. SHELLY, I Defendants I CONFESSION OF JUDGMENT DBFBNDANTS' BRIBF IN OPPOSITION TO PLAINTIPF'S PRELIMINARY OBJECTIONS TO DBFBNDANTS' ANSWER. NEW MAT'l'BR AND COUNTBRf'T.IUM PROCBDURAL HISTORY On January 29, 1997, Plaintiff filed a Complaint for a Confession of Judgment against Defendants based on a commercial lease dated April 1, 1992. On February 27, 1997, the Defendants filed a Petition to Open the Confessed Judgment.1 The Petition to Open Confessed Judgment included as Exhibit "0" Defendants' Answer With New Matter and Counterclaim that was filed contemporaneously with the petition to Open Confessed Judgment. On March 6, 1997, the Court issued a Rule to Show Cause which had a twenty (20) day return date. The Rule was timely served upon Plaintiff's counsel. Before filing an Answer to that Petition, plaintiff filed Preliminary Objections to Defendants' Answer With New Matter and Counterclaim on or about March 7, 1997. Thereafter, Plaintiff filed an Answer With New Matter to 1 Plaintiff's counsel indicates that he did not receive this Petition until March 7, 1997, however, he was served with the Petition by transmittal letter dated February 26, 1997. I.'QJQITW'~JO 1 Defendants' Petition to Open Confessed Judgment. On April 1, 1997, Defendants filed a timely reply to Plaintiff's Answer With New Matter to Defendants' Petition to Open Confessed Judgment. Plaintiff thereafter listed his preliminary Objections to Defendants' New Matter and Counterclaim for Argument Court.2 FACTS On or about April 1, 1992, Plaintiff, Cochran & Allen, Inc., (hereinafter "Owner") by and through its president, Dennis B. Gotthard, entered into a written agreement with Defendants, Linda M. Ewing and Martha K. Shelly, (hereinafter "Tenants") for the premises located at 22 South Hanover Street, Carlisle, Cumberland County, Pennsylvania. The Tenants operated a restaurant, Miss Garbo's, in the front section of the leased premises, and a catering business, Carlisle Catering, in the rear of the leased premises. Throughout the term of the Lease, the Tenants experienced numerous, ongoing problems with the leased premises. Said problems began in December, 1992, at which time the Tenants reported to the Owner that the roof was leaking. In December, 1993, the Tenants again reported to the Owner that the roof was leaking. By January, 1994 the roof was still leaking and had, by this time, caused extensive damage to the contents of the 2 Since this Court has not yet held an evidentiary hearing nor have depositions been taken on the Petition to Open Confessed Judgment, Defendants have not been let into defense as of this date. Therefore, it would seem that Plaintiff's Preliminary Objections to Defendants' Answer With New Matter and Counterclaim to Plaintiff's Complaint would be premature and not ripe for review at this time. !:.CUlOIt....'WII<<J... pO 2 building. As a result of the persistent leaks and the damage caused thereby, the Tenants withheld $800.00 from rent due in January, 1994. In January, 1995, the roof continued to leak, despite Owner's attempt to patch and repair the same. On or about December 18, 1995, the roof continued to leak and caused damage to a luncheon to be held in the rear of the premises. On or about January 2, 1996, the Tenants informed Owner that the roof was still leaking and demanded that it be repaired. The Tenants withheld one half (i) of the rent due to the leaking roof and resultant water damage to the rear of the leased premises. On or about January 13, 1996, the Tenants discovered severe leakage in the ceiling and back door of the leased premises, which necessitated the removal of all of the items from the walls in the affected area. Said leakage continued throughout the month of January, 1996, and on January 17, 1996, the Tenants were forced to close the restaurant in the front of the building in order to move a luncheon that was scheduled for the rear of the premises to the front of the premises. Likewise, on January 20, 1996, the restaurant was closed so that a banquet could be held in the front of the premises, as the rear of the premises was too wet for use. On January 27, 1996, the Tenants were forced to cancel a wedding reception scheduled for the back room due to extensive leaking in the roof, ceiling, back door, and an accumulation of water on the floor from said leaks. The leased premises continued to leak throughout the month of February, I~PO 3 1996. On or about February 8, 1996, the restaurant was again forced to close to move a catering engagement to the front of the leased premises. On February 18, 1996, a private party had to be moved form the rear of the leased premises to a client's house because of the accumulation of puddles, dampness, and the continued leaking of the roof. On February 23, 1996, the restaurant was again forced to close to hold a private party in the front of the leased premises due to the extensive leaking in the rear of the premises. On or about January 11, 1996, the Tenants provided written notice to the OWner that, as a result of the severe water problems and OWner's refusal to correct or repair the water problems, the Tenants were terminating the lease dated April 1, 1992. On or about March 4, 1996, the Tenants provided written notice of damages the Tenants suffered as a result of the water damage to the property for the month of February, 1996, totaling $8,860.00. After deducting rent of $3,002.00, the Tenants demanded $5,858.00. from OWner. Despite oral and written notice of the damage to the leased premises, the OWner refused to correct and repair said damage. As a result of said damage, the Tenants were unable to continue to operate either the restaurant or the catering business at the premises located at 22 South Hanover Street, and were, therefore, forced to vacate said premises on or about April 1, 1996. On or I.'C'I~PO 4 about April 24, 1996, the Tenants, by and through the undersigned, confirmed that they had vacated the premises as of April 1, 1996 due to the "several severe problems with the property" . On January 29, 1997, Owner filed a Complaint at the above term and number seeking a Confession of Judgment against Tenants. Pursuant to that Complaint, judgment was confessed and entered against Tenants on or about January 29, 1997. On February 27, 1997, Tenants filed a Petition to Open Confessed Judgment, contemporaneously filing an Answer with New Matter and Counterclaim to Plaintiff's Complaint. ISSUES I. Whether Plaintiff's Preliminary Objections to Defendants' Answer With New Matter and Counterclaim are premature in light of the fact that neither depositions nor a hearing has been held on Defendants' Petition to Open Confessed Judgment and Plaintiff's Answer thereto? Answer: Yes. II. In the alternative, should this Honorable Court decide to entertain Plaintiff's Preliminary Objections to Defendants' Answer With New Matter and Counterclaim: A. Whether Defendants' Answer With New Matter and Counterclaim to Plaintiff's Complaint conforms to law or rule of court and therefore, is a proper pleading pursuant to the Pennsylvania Rules of Civil Procedure? Answer: Yes. B. Whether Defendants' Answer With New Matter and Counterclaim to Plaintiff's Complaint states a defense to the judgement of confession? Answer: Yes. .~,. 5 A petition to open a confessed judgment is an appeal to the equitable powers of the court. It is well settled that, in order to obtain relief, A party must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission of the issues to a jury. Bell Federal Savinas and Loan Association v. Laura Lanes. Inc., 291 Pa.Super. 395, 435 A.2d 1285 (1981). Although at one time it was further required that a party establish equitable consideration sufficient to impress the court with the need for relief, it is now held that equitable considerations are no longer relevant unless related to a particular asserted defense. Homart Development Co. v. Sarenci, 443 Pa.Super. 538, 662 A.2d 1092 (1995). Plaintiff seems to assert that Defendants' Answer With New Matter and Counterclaim must be stricken for allegedly incorrectly incorporating into the Petition to Open the Confessed Judgment the Defendants' Answer With New Matter and Counterclaim. However, according to the Rules of Civil Procedure, in order to successfully open a confessed judgment, the Defendants are required to plead all affirmative defenses as new matter. Estate of Si1vestrivkinest, 318 Pa. Super.14, 464 A.2d 494 (1983). See also, Dameron v. Woods Restaurant. Inc., 305 Pa.Super 346, 451 A.2d 681 (1982). In addition, it has been held that joinder of new matter and counterclaim in a petition to open confessed judgment was not procedurally defective. See Lembakis v. Exar, 340 Pa.Super 483, 490 A.2d 882 (1985). ................ .. 7 Defendants are required to allege a meritorious defense in their Petition in order to open a confessed judgment. The Petition to Open Confessed Judgment alleges several breaches of the lease by Plaintiff, and incorporates by reference the Defendants' Answer With New Matter and Counterclaim to Plaintiff's Complaint as Exhibit "D. to the Petition to Open. Pennsylvania Rules of Civil Procedure 2959(e) contemplates that the court must consider any testimony, deposition, admissions and other evidence in ruling upon a petition to open..... Pennsylvania Rules of Civil Procedure 1019(g) provides in pertinent part that a party may incorporate by reference any matter of record in any state court of record, whose records are within the county in which the action is pending. This rule clearly permits a party to incorporate by reference pleadings duly filed pursuant to another cause of action. Averments incorporated by reference from other pleadings have been held sufficient to support defenses raised in relating proceedings. Sarns Corp. v. Garin, 352 Pa.Super. 105, 507 A.2d 402 (1986). Not only is Defendants' incorporation of its Answer With New Matter and Counterclaim to Plaintiff's Complaint proper, it is reauired. It demonstrates Defendants' meritorious defense to Plaintiff's Complaint in Confession and dictates that the confessed judgment must be opened and Defendants let into defense. Only after the Court has allowed Defendants into defense can it then decide the Preliminary Objections that Plaintiff has filed to Defendants' Answer With New Matter and Counterclaim to Plaintiff's Complaint. Therefore, Plaintiff's Preliminary Objections to Defendants' Answer With New Matter and Counterclaim are not ripe and are ..",,,,,..-...,,, 8 premature. Only after depositions have been taken and a hearing has been held can the court decide the issue of whether the Petition to Open Confessed Judgment should be granted.] Thus, Defendants respectfully suggest that this Honorable Court enter an order denying Plaintiff's Preliminary Objections at this time, set a date for the completion of depositions on the Petition to Open Confessed Judgment, and schedule a hearing on the Petition to Open Confessed Judgment. II. In the alternative, should this Honorable Court decide to entertain Plaintiff's Preliminary Objections to Defendants' Answer With New Matter and Counterclaim: A. Defendants' Answer With New Matter and Counterclaim to Plaintiff's Complaint conforms to law or rule of court and therefore, is a proper pleading pursuant to the Pennsylvania Rules of Civil Procedure. In its Preliminary Objection, Plaintiff asserts that Defendants' Answer With New Matter and Counterclaim fails to conform to rule of court and is impertinent. The previous section of this Brief demonstrates that Defendants' Answer With New Matter and Counterclaim is not only pertinent, it is required. However, should this Court decide to address the Preliminary Objections, Defendants assert that their Answer With New Matter and Counterclaim is properly pleaded. The standard of review in reviewing preliminary objections ] Once the Court has made a determination that the Petition to Open Confessed Judgment should be granted, then, and only then, may Plaintiff file Preliminary Objections to Defendants' Answer With New Matter and Counterclaim to Plaintiff's Complaint. a\WllHTl'.r'II'lNWWQrlO 9 is well settled. All well-pleaded material facts alleged in Defendants' Petition to Open Confessed Judgment, as well as all reasonable inferences deductible therefrom, must be deemed true. See Vitteck v. Washinaton Broadcastina Co., Inc., 256 Pa.Super. 427, 389 A.2d 1197 (1978)~ Allstate Insurance Companv v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973). Any doubt should be resolved by a refusal to sustain the objections. Allstate Insurance Companv v. Fioravanti, supra. Thus, in reviewing Plaintiff's Preliminary Objection for failure of a pleading to conform to law or rule of court and inclusion of impertinent matter, the Plaintiff admits all of the well pleaded material facts contained in Defendants' Petition to Open Confessed Judgment,' as well as any reasonable inferences that may be deduced from there. Plaintiff seems to assert that Defendants' Counterclaim for consequential damages fails to conform to law because of Plaintiff's assertion that Paragraph 10 of the Commercial Lease is clear and unambiguous as to the intentions of the parties that damage rendering the building unfit for occupancy would be limited to rent abatement and not to loss of profits or business. Unfortunately, Plaintiff misses the point. Paragraph 10 of the Commercial Lease provides: 10. If, during the term of this lease, the building is so damaged by fire or other casualty, not occurring through the negligence of tenant, so that the building is rendered unfit for occupancy, and the building · Including Defendants' Answer With New Matter and Counterclaim as an Exhibit to that Petition. '~IO 10 cannot be repaired within sixty (60) days from the occurrence of such damage, then this lease shall cease and determine from the date of such damage. In the event that the building is capable of repair within sixty (60) days from the occurrence of such damage and in the event that such repairs are effected, then a portion of the rent equal to the ratio of the unusable square footage to the total square footage leased shall be abated at the rate of $100.00 per day for each day that any damaged square footage is unusable; provided that, in the event that the damages are sufficiently severe that the premises cannot in a practical way be used as an operating restaurant, all of the rent shall be abated until the premises are once again usable as a restaurant. t . . \, In Defendants' petition to Open Confessed Judgment, Defendants assert that the leased premises suffered severe damage due to a leak in the roof which rendered the building incapable of operating as a restaurant. See Paragraph 3(e) of Defendants' Petition to Open Confessed Judgment which states: E. On or about December 18, 1995 the roof continued to leak and caused damage for a luncheon scheduled in the rear of the premises. The roof continued to leak, and the Plaintiff failed to repair said leak, within sixty (60) days as required by Paragraph 10 of the Lease. The Defendants were forced to terminate the Lease and vacate the property. The Defendants vacated the property on April 1, 1996 due to the severe roof leak which was not repaired within sixty (60) days as required by the terms of the Lease. Therefore, because Plaintiff failed to repair the damage to the leased premises within sixty (60) days, the Lease was .~"' 11 terminated pursuant to Paragraph 10 of the Lease.5 Clearly, there is an issue of material fact as to whether or not the damage to the roof was repaired within sixty (60) days. Plaintiff insists that these repairs were, in fact, effectuated and Defendants assert that they were not. Thus, should the Court decide that the Preliminary Objections of Plaintiff are ripe for determination, the Court is forced to deny the objections at this time due to the existence of this material fact.6 B. Defendants' Answer with New Matter and Counterclaim to Plaintiff's Complaint states a defense to the judgment of confession. Plaintiff's second Preliminary Objections is a demurer to Defendants' Answer With New Matter and Counterclaim to Plaintiff's Complaint for failure to state a defense to the judgment by confession. A demurer is an assertion that a pleading fails to set forth a cause of action upon which relief can be granted. A demurer admits every well pleaded material fact set forth in the Complaint as well as all inferences reasonably deductible 5 "If...the building cannot be repaired within sixty (60) days from the occurrence of such damage, then this Lease shall cease and determine from the date of such damage." Paragraph 10 of Lease, in part. 6 In addition, Plaintiff seems to rely heavily on the abatement clause as a liquidated damage provision. Its calculation of abatement, however, are seriously questioned by the inclusion of the square footage of the basement, which was determined by Pennsylvania Department of Environmental Resources as unfit for use by a restaurant at the inception of this lease and has never been used by Defendants in the operation of their business. This alone may raise a material fact which would preclude the granting of Plaintiff's Preliminary Objections. .~.. 12 therefrom, but not conclusions of law. Allstate Insurance Company v. Fioravanti, supra. In order to sustain the preliminary objection raising the legal insufficiency of a pleading (demurer), it is essential that the Defendants' Petition to Open indicate on its face that the claim cannot be sustained and that the law will not permit recovery. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). A preliminary objection raising the legal insufficiency of a pleading is not justified unless it is free from doubt that the Defendant cannot recover as a matter of law. Clevenstein, supra. Moreover, it is well settled that preliminary objections in the nature of a demurer should be sustained only in cases where it is certain that the law will deny recovery; and any doubt is to be resolved against the demurer. Allstate, supra.; Clevenstein, supra. Plaintiff's position seems to be based on the fact that the Tenants did not vacate the premises on the sixtieth day after the date the roof began to leak on December 18, 1995. It alleges that the Tenants' failure to remove themselves on the exact sixtieth day constitutes a judicial admission that they did not leave because the leak had not been repaired. This does not make any sense. The Defendants had an established business in the form of a restaurant and a catering service located on the leased premises. They provided notice to the Plaintiff that the property was damaged to an extent that rendered it unusable for its intended purpose and demanded that the property be repaired. The fact that they did not leave on the sixtieth day from the .~'" 13 date the leak started is insignificant. They provided notice to the Plaintiff of their intentions to vacate and took the reasonable and necessary steps to effectuate their vacating the premises by closing down their two businesses, obtaining another property to locate the said businesses, and auctioning off some of the property located at the leased premises in order to move. As such, Tenants' failure to vacate on the sixty-first day cannot be construed as either unreasonable or a waiver of their rights to terminate the lease due to the extensive damage that Plaintiff failed to repair. Taking Plaintiff's argument to the extreme, Plaintiff would suggest that Defendants would have had to give Plaintiff notice of the leak and give Plaintiff sixty (60) days to repair such damage. Only in the event that Plaintiff failed to repair the damage within sixty (60) days would Defendants then be entitled to terminate the lease and thus, remove themselves from the premises without further liability and this move would have to occur on the sixty first day. In other words, Plaintiff would have the Defendants give notice, wait for sixty (60) days to see if Plaintiff would effectuate the repairs, and when they discover that Plaintiff had not repaired the property within sixty (60) days, pack and vacate the premises on the sixty first day. This position is both untenable and unreasonable. Therefore, Plaintiff's Preliminary Objection in the nature of a demurer to Defendants' Answer With New Matter and Counterclaim must be denied. C. Defendants' New Matter to Plaintiff's Complaint states a defense of laches as a matter of law. L~'" 14 The next Preliminary Objection filed to Defendants' Answer With New Matter and Counterclaim is that Defendants failed to state a defense of laches as a matter of law, This too is a preliminary objection raising the legal insufficiency of a pleading (demurer) with the same standard of review as the previous preliminary objection. If the court gets past the issue of whether or not Plaintiff's Preliminary Objections to Defendants' Answer With New Matter and Counterclaim is premature, the Defendants concede that the defense of laches is not available tc them at this time, D. Defendants' Answer With New Hatter and Counterclaim to Plaintiff's Complaint sufficiently pleads the elements of trespass allowing Plaintiff to defend such cause of action. The Defendants' final preliminary objection is a motion for more specific pleading. Although in its Preliminary Objections under this section, the Plaintiff raises several instances of unspecificity, it only briefs two (2) of those: (1) the allegations that the Plaintiff unlawfully entered the leased premises without permission of the Defendants fails to state when those wrongful entries occurred; and (2) Defendants' failure to attach to its Counterclaim the written lease as Exhibit .C.,7 One would think that the Plaintiff would know which dates he entered the leased premises without the permission of the Defendants, If the Court so directs, the Defendants are willing 7 All issues raised but not briefed are deemed waived. Cumberland County Rule of Court 210-7. K.'<lUDIT1'iWNMaUN 15 ~;:S ~ 0 ~~ t! 0 Iloo .... IlooCll ~ - ~~ ~tJ 0000 ~ 3 J i . Z 0 :2:0 ~ '~~I Z HH : f<l~ H "tl II) E-< o~:s Ij.( ~ -~ ~o .Ij.( al~~ I.LlI.Ll ~ ~~ z.,.I :;!;a ! I! i o 1 > ~~ t!l...:l"tl 0 H~ ~~ z~~ l'Q0 ~o~oo ffiCll~ ~~ ~HNZ .-l o E-<COO ~Iloo > .t:l o O-:tH .::.: ~z <100 ~ ::E: HH ~ 1'00 ~~ E-<::E: 1.Ll...:l0\1.Ll ZH E-<~H ~ H...:l >. 0 :S~ Z HOO 0 H ~ ,~,,~.' 'i>. .,~ <::' ., . .. -~ '. -.,. ... -:-~'-:""~r,'VO"".l' '. . ~...' ... 4F11 . " ~?R C 2 \991 6^" J r I COCHRAN & ALLEN, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW :io , v. NO. 97-482 CIVIL TERM LINDA H. EWING and MARTIIA K. SIIELLY, Defendants CONFESSION OF JUDGMENT PLAINTIFF'S BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS STATEMENT OF THE CASE On April 1, 1992, the parties hereto entered into a commercial Lease, a true and correct reproduction of the original of which is attached to the Complaint in Confession of Judgment herein. WAYNU F. SIIADU Aa.onwy II Law IIW'.......,"'_ rllu.Lt, I'nuuylvWa 1701l The Complaint avers that on or about January 5, 1996, Defendants (hereinafter "tenants") notified Plaintiff (hereinafter "owner") of a leak in the roof which was causing water to enter the rear of the leased premises. The tenants aver in Paragraph 8 of their Answer that the owner was notified of a leak on December 18, 1995. The owner immediately attempted to ascertain the location of the leak, but was prevented from doing so by several feet of snow on the roof due to a major snow storm. The owner also promptly contacted Kendor Enterprises, Inc., a local roofing contractor to arrange for repairs to the roof. Due to the severe weather conditions and the substantial accumulation of snow-on the roof, Kendor Enterprises, Inc. was unable to work on the roof until February 27, 1996, when repairs were effected. While the leak affected the rear of the premises, the tenants continued to use the front of the premises as a restaurant Paragraph 10 of the Lease provides that, where the damage can be repaired within sixty days, a portion of the rent equal to the ratio of the unusable square footage to the total square footage is to be abated at the rate of $100 per day for each day that the damaged square footage is unusable. The owner acknowledged in the Complaint in Confession of Judgment that the tenants are entitled to abatement of rent for fifty-four days from January 5, 1996, through February 27, 1996, at the rate of $32 per day. However, the tenants made deductions from their rent for the months of January and February of 1996 which bore no relationship to the formula for rent abatement in the Lease. They then paid no rent thereafter. On January 11, 1996, the tenants served the owner with their nine months' written notice of termination of the Lease under the provisions of Paragraph 1 of the Lease, citing the leak as the reason for termination. On or about April 1, 1996, without further notice to the owner, the tenants defaulted under Paragraph 8(c) of the Lease by abandonment of the leased premises whereby all rent for the entire unexpired term of the Lease became at once due and payable under Paragraph 9 of the attached Lease. On January 29, 1997, the owner confessed judgment against the tenants for rent in the amount of $26,890 from January 1, 1996, through October 11, 1996. This calculation of rent due WAYNP. F. SIlADE A~d~W gave the tenants credit for rent abatement in accordance with the 53 w... Pomf... SIred Carlialc. P<auylv.... 17013 formula in the Lease. -2- On February 28, 1997, the tenants served the owner with an "Answer" with New Matter and Co'unterclaim. On March 7, 1997, the owner filed Preliminary Objections to the pleadings of the tenants. Also on March 7, 1997, the owner received the tenants' Petition to Open Confessed Judgment which incorporated the aforesaid Answer with New Matter and Counterclaim. On March 24, 1997, the owner filed an Answer to the tenants' Petition to Open Judgment to protect the record pending disposition of the Preliminary Objections which are now before your Honorable Court for disposition. ARGUMENT 1. DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIM MUST BE STRICKEN AS LACKING CONFORMITY TO LAW OR RULE OF COURT. The provisions of Pa.R.civ.p. 2959 so clearly mandate a Petition as the only method for seeking relief from a jUdgment by confession that no further authority is needed to establish that the tenants' Answer with New Matter and Counterclaim fails to conform to rule of Court and is, therefore, impertinent. The Rule states that "relief from a judgment by confession shall be sought by petition." (Emphasis supplied) While the tenants did serve a Petition to Open Confessed Judgment after service of their Answer with New Matter and Counterclaim, the existence of the Answer and its incorporation in the Petition to-open Confessed Judgment confounds this case procedurally and can only lead to confusion in terms of the subsequent procedures for WAYNI! F. SHADB A~dUw disposition of the Petition to Open Confessed Judgment under the 53 Welt Pcmf... _ c.rtide, Paluylv..... .7013 rules. In particular, they confuse the scope of the averments -3- and admissions for disposition of a Petition and Answer under Pa.R.civ.p. 206.7. We would also observe that the Order of March 6, 1997, issued pursuant to the Petition to Open Confessed Judgment raises further procedural problems in this case in that it fails to include a completion date for depositions as required in Pa.R.civ.p. 206.5 and 206.6. The tenants' Counterclaim for consequential damages also fails to conform to law and is impertinent in that the terms of Paragraph 10 of the Commercial Lease clearly and unambiguously express the intentions of the parties that the claims of the tenants resulting from damage rendering the building unfit for occupancy would be limited to rent abatement in accordance with the formula set forth therein. A lease is a contract and is to be interpreted according to contract principles. The intent of the parties must be ascertained from the document itself when the terms are clear and unambiguous. As a general rule, the law will not imply a different contract than that which the parties have expressly WAYNI! F. SHADB AlIonley" Low 53 W... Pomf... SInd ClttUIc. 1'amJy1v.... 17013 made. Where the terms of a lease are clear and free from doubt, it lies with the courts to enforce the agreement which the parties have made. Clearfield Volunteer Fire Department v. BP Oil, Inc., 412 Pa. Super. 29, 602 A2d 877 (1992). Where an agreement specifies the damages in the event of the occurrence of specified events, the damages will be limited to the agreed amount even though the 6amages claimed may be in excess of the agreed amount. Martin v. Freedman, 49 Dauph. 293 (1940) . -4- WAYNI! F. SIWlB A_uta" 'I W... _nt _ C&rIido. PamlyIvIDil 17011 In the present case, the parties agreed in Paragraph 10 of the Lease that, in the event of damage to the property by fire or other casualty, rent would be abated on a ratio of the unusable square footage to the total square footage under the Lease at the rate of $100 per day for each day that any damaged square footage would be unusable. In his Complaint in confession of judgment, the owner gave the tenants credit for the rent abatement in accordance with the agreed formula. The tenants admit in Paragraph 14 of their Answer that it was the rear of the leased premises that was unusable in the total amount of 2,356.5 square feet. They then contend that the area was unusable for the entire months of January and February. They next admit the allegations of Paragraph 17 of the Complaint that they paid only $1,500 for rent for January of 1996 and only $102 for rent for February of 1996. Therefore, it is clear that they did not use the agreed formula to calculate rent abatement. If they had, the amount of abatement for the unusable square footage would have been nearly equal for both months, differing only by the differing number of days in the two months. In fact, it is equally clear that the tenants' rent withholding bore no relationship whatsoever to the formula set forth in Paragraph 10 of the Commercial Lease. Therefore, even if the leak began on December 18, 1995, the tenants were in breach of the Lease for nonpayment of rent; and the owner's right to judgment for the accelerated rent accrued prior to sixty days from the date that the leak began. The fact that the tenants' rent withholding for January and February of 1996 impermissibly contemplates consequential damages -5- WAYNI! F. SHADE A_ at Law 53 W... PomIrd sum CulUIc. 1'moIy1v.... 17013 beyond the limitations of the agreed formula is further revealed in their Counterclaim and their Exhibit "C" to their Counterclaim for what are obviously consequential damages. The decision in Martin v. Freedman, supra, cites several Pennsylvania appellate cases in support of the limitation of damages to an agreed amount even though greater damages were claimed. Most of the reported appellate cases, like the Martin case, have arisen in the context of agreements of sale for real estate. Most agreements of sale for real estate provide that, in the event of default, the seller may keep the down payment as liquidated damages or sue for actual damages. However, where such agreements merely provide for liquidated damages, the seller has been limited to the liquidated damages. A case in point is Riling v. Idell, 291 Pa. 472, 140 A 270 (1928), wherein a contract purchaser sued for return of a security deposit, contending that the property was encumbered by a right-of-way. The seller contended that the property was not encumbered and attempted to counterclaim for damages for loss of business profits occasioned by vacating the premises in anticipation of the transfer of title. The court held that the property was not encumbered so that the purchaser was in breach, but the seller was limited in its counterclaim to the agreed amount of damages: .... Such a stipulation is binding, and limits the right to reimbursement, though the actual injury is in excess of the amount named. The sum agreed on was not disproportionate to that which might be expected to follow, if there was a failure to take title and pay the purchase price, and the parties are bound thereby. Id. at 476, 140 A at 272. (Citations omitted) -6- WAYNB F. SIIAIlI! Auomey at lAw 53 W... PomI.... sum c.rtiJ1e. /'uuuyl,... 17013 The more common inquiry is whether the agreed damages are so excessive as to constitute a penalty rather than whether they constitute a limitation on damages. However, in cases such as Martin, the fact that the actual damages claimed were greater than the liquidated damages has been held to be an important factor in establishing that the liquidated damages are not unreasonably excessive. In the present case, the parties expressly specified the damages in the event of damage to the leased premises. The agreement does not say that the tenants will be entitled to actual damages but not less than the agreed liquidated damages. It simply liquidates the damages absolutely. As stated by then Mr. Justice Nix in his Opinion in Harris v. Dawson, 479 Pa. 463, 466-468, 388 A2d 748, 749-750 (1978): .... [T)he terms of this clause are clear and unambiguous. The parties hereto have expressed a clear intention that in the event of a breach by the buyers, the sellers shall have the option of retaining the money paid by the buyers on account and to apply it toward the purchase price or to accept that sum as liquidated damages. Under the first alternative the remedy would be, of course, in conjunction with the sellers' right to sue for the purchase price. n1 However, the sellers would then be obligated to convey the premises to the defaulting buyers upon their satisfaction of the judgment. In view of the sellers' decision to resell in this case they were thereby precluded from proceeding under the first option. The instant sellers now seek to ignore the agreement and proceed in assumpsit for damages. This course of action is precisely what the disputed clause was intended to avoid. The concept of agreeing at the outset to a contract upon the liquidation of damages in the event of a subsequent breach of the terms of that contract was designed to eliminate the cost an4 the uncertainty involved in seeking relief through litigation after the fact. While, as pointed out in the above statement, the clause could have been drafted in such a manner as to allow liquidated damages to serve as a remedy in addition to a suit in assumpsit for damages. -7- The language of the instant clause specifically provided otherwise. Here the parties agreed that upon the buyers breach, the "sum or sums paid on account are to be retained by the sellers." clearly the phraseology intended that the only option to a seller who has elected to resell his property is the acceptance of the liquidated damage in lieu of any actual loss that may have occurred as a result of the resale. See Tudesco et ux v. Wilson, 163 Pa. Super. 352, 60 A2d 388 (1948). The appellees offer a number of arguments suggesting the unfairness of the conclusion we herein reach and argue that it allows the breaching party to benefit from that breach. However, in response, we need only point out that the essence of contract law is the intent of the parties and where there has been no allegation of mistake, fraud, overreaching, or the like, it is not the function of the court to redraft the agreement more favorable to a given party than that which he chose to enter into. (Emphasis supplied) We contend that the liquidated damages provisions of the Lease are actually beneficial to the tenants. The owner of the building could have insisted that the Lease terminate automatically upon the occurrence of any casualty damage to the property. The parties could then have negotiated to see if they could have reached mutually acceptable terms to continue the Lease. Rather than subject the tenants to such uncertainties in the event of damage to the premises, the owner agreed that the tenants could remain in the premises under the terms of Paragraph 10. However, the owner was not willing to expose himself to the types of claims that the tenants are now seeking to advance. The tenants accepted this arrangement in a negotiated commercial context, and they cannot now lawfully claim additional damages. WAwnF.SHADll Moreover, the agreed liquidated damage provision in this case is ^ aorncy It law S3 We.t Pomrrrt Slml C.rlilk. PtM*y1vuti& 17013 -8- t r \ also reasonable because it bears a direct relationship to the portions of the property which were rendered unusable. We submit that it is of no consequence that the formula for rent abatement is not specifically labeled as liquidated damages in the Lease. The absence of such labels in an agreement is of no significant consequence. The controlling factors are the intentions of the parties as determined from various factors including the language of the entire agreement and the subject matter of the agreement. Laughlin v. Baltalden, Inc., 191 Pa. Super. 611, 159 A2d 26 (1960). Here it is clear that it was important to the parties to reach an agreement at the outset of the lease upon the liquidation of damages in the event of casualty damage to the premises. The agreement was clearly designed to eliminate the costs and uncertainties involved in WAYNI! F. SHADB AtlOtDCy at Law S3W"'PolllI"'_ CarliaIc. l'uwylv..... 17013 seeking relief through litigation after the fact. Although Paragraph 12 of the Lease comprehensively integrates all of the terms of the transaction, the tenants now seek to ignore the agreement and proceed in assumpsit for damages. This course of action is precisely what the disputed clause was intended to avoid. Therefore, we contend that tenants' impermissible claims for damages are irrelevant and must be stricken as impertinent under the authority of Hudock v. Donegal Hut. Ins. Co., 438 Pa. 272, 278, 264 A2d 668, 671, n. 2 (1970): .... In our opinion an allegation of damages or a prayer for damages which are not legally recoverable in the cause of action pleaded is impertinent matter in the sense that it is irrelevant to that cause of action. Thus, a preliminary objection in the nature of a motion to strike off impertinent matter would appear to be the appropriate means through which to challenge an erroneous prayer for damages. In the case at bar, -9- appellees did in fact attack the impertinent matter by way of a motion to strike as well as a demurrer. We contend, as set forth in Harris, supra, that the essence of contract law is to effectuate the intentions of the parties and that, where there has been no allegation of mistake, fraud, overreaching, or the like, it is not the function of the court to redraft the agreement more favorably to a given party than that which he chose to negotiate for himself. Here the tenants contend that the leaks began on December 18, 1995. If that is true, then the tenants would have been entitled under the provisions of Paragraph 10 of the Lease to have declared the Lease void on February 16, 1996, the sixtieth day after they say the leak began. The provisions of Paragraph 10 of the Lease would have voided the Lease as of December 18, 1995, and permitted the tenants to leave on February 16, 1996, without any obligations after December 18, 1995. However, the tenants seek to have it both ways. They admit in Paragraph 28 of their New Matter that they remained in the premises until April 1, 1996. They now seek, in spite of their holding over, to avoid liability for rent and to counterclaim for damages in excess of those to which they agreed to limit themselves under the express terms of the Lease. The tenants' Counterclaim for unliquidated damages for trespass fails to conform to law and is impertinent in that a judgment by confession may not be opened to permit the tenants to set-off or counterclaim an unliquidated amount of damages in WAYNI! F. SHADD trespass. Aa.omcy at Law 53 Weol PcmI..._ CuIisIc. 1'aIoI)o1v.... 17013 -10- WAYIlI! F. SHADE A_ II Low lIW.........",_ c.rtiJJe. Pauuylnllia 17011 In addition to their impertinent claims for loss of business profits, the tenants claim damages in trespass for the owner's alleged unauthorized entry into the leased premises at unspecified dates and times. The existence of an unliquidated set-off or counterclaim is not ground for opening judgment. Payment is the only answer to such a judgment. Gettier v. Friday, 375 Pa. 206,208, 99 A2d 899, 900 (1953). . The only exception to this rule is the situation where contractual compensation is owed ar. part of the agreement pursuant to which judgment has been confessed. ld. For example, in the present case, the tenants could set-off rent abatement under Paragraph 10 if we had not already calculated the abatement in our Complaint. However, we contend that they may not advance impertinent claims for loss of business profits and in trespass to assail the validity of our existing judgment which has resulted from their breach of the Lease. For all of the foregoing reasons, we contend that all of the pleadings of the tenants other than the Petition to Open Confessed Judgment without incorporation of the Answer with New Matter and Counterclaim must be stricken as impertinent. We further suggest the need for an Order setting a termination date for the completion of the tenants' depositions. n. DEFENDANTS' ANSWER MUST BE DISMISSED FOR FAILURE TO STATE A DEFENSE TO THE JUDGMENT BY CONFESSION. The decision of the Supreme Court in First Seneca Bank v. Laurel Mt. Development Corp., 506 Pa. 439, 443, 485 A2d 1086, -11- 1088 (1984), sets forth the standard for opening a judgment by confession: A judgment taken by confession will be opened in only a limited number of circumstances, and only when the person seeking to have it opened acts promptly, alleges a meritorious defense and presents sufficient evidence of that defense to require submission of the issues to the jury. The defenses raised must be valid ones, and the petitioning party bears the burden of producing sufficient evidence to substantiate the alleged defenses. Weitzman v. Ulan, 304 Pa. Super. 204, 209, 450 A2d 173, 176 (1982). In Weitzman, the refusal to open judgment by confession for rent was affirmed where the tenant attempted to set off roof repairs for rent where the owner was not in violation of the provisions of the Lease for roof repair. In Corson v. Corsons Inc., 290 Pa. Super. 528, 434 A2d 1269 (1981), the tenant exercised a right to terminate the lease and, in the termination notice, attempted to forfeit a real estate tax escrow fund for payment of the last month's rent. In reversing the opening of a judgment by confession for rent for failure of the tenant to state a meritorious defense, the Court stated that a defense which is sufficient to support opening of a judgment by confession for rent is one which would prevent a directed verdict against the tenant. In the landlord and tenant context, the claim of entitlement to either a refund or a credit_against the rent is not such a defense. The only sufficient defense is that the rent was not owed or that it was paid. Id. at 534, 434 A2d WAYNE F. SHADB at 1272. A_ at Law 53 W... I'omf'" _ Cutialo. I'amlylvOllia 17013 -12- WAYNI! F. SHADD Attomc)'.tLaw l3 Welt PcmIrd _ Carlis~.I'alIIIyIv.... 17013 We contend that, beyond lacking averments of a sufficient defense, the tenants' pleadings constitute an admission of liability for rent through the end of the period of their nine month termination notice. The only defense that could arguably exist to the obligation for payment of the rent that would be admittedly due under the terms of the tenants' own written nine month termination notice is that the leak was not repaired until more than sixty days after they say it began on December 1B, 1995, as required under Paragraph 10 of the Lease. The fact that the tenants admit that they remained in possession of the property until after February 17, 1996, the sixty-first day after December 1B, 1995, constitutes a jUdicial admission that they did not leave because the leak had not been repaired and eliminates any factual disputes in this case relative to the obligation for rent. If the roof were leaking from December 18, 1995, why did they wait until January 11, 1996, to send the notice? The tenants have offered no plausible reason for this delay of more than three weeks. We submit that the unexplained delay in their issuing their nine month termination actually supports the allegations of the owner in the Complaint for Confession of Judgment that the leak did not begin until after the heavy snowfall during the first week of January of 1996. In fact, the tenants did not even vacate the premises within sixty days after their written nine month termination notice. That notice is attached to their Answer as Exhibit "A" and says that they would be leaving in nine months due to the ongoing water problems. They did not say that they were leaving -13- WAYNI! F. SHADe AUorDcy at Law 53 W... Ptmf'" SIrm C&r\iole, 1'awy1,1Ilia 17013 immediately because the property could not be used as an operating restaurant. They did not say that the roof had been leaking for years and, specifically, they did not say that it had been leaking since December 18, 1995. Moreover, they admit in Paragraph 28 of their New Matter that they remained in possession of the leased premises at least through April 1, 1996. In giving the nine month termination notice, the tenants acknowledged their continuing obligation under the Lease in spite of the roof leaks that they cited in the notice. Even if it could be assumed that the owner breached the Lease by failure to address the problems with the roof, it is a basic principle of landlord and tenant law that, even if a landlord commits the first breach of a commercial lease, the rental obligation of the tenant is not eliminated where the tenant remains in possession of the premises. Nikole, Inc. v. Klinger, 412 Pa. Super. 289, 603 A2d 587 (1992). A petition to open a judgment by confession is an appeal to the equitable powers of the court. Weitzman, supra, at 209, 450 A2d at 176. We contend that the tenants' holding over beyond sixty days from the date that they suggest that the property became unusable as a restaurant belies that very allegation and constitutes a waiver of any such defense and an acceptance of the repairs that were effected by the owner of the premises in February of 1996. Once again, we contend that it would be inequitable to permit the tenants to have it both ways. They cannot say that the property -14- WAYNB F. SHADC Aaomey at Law 53 Wut Pamlrd SlIm cw.1c. Pmnsylvania 17013 was unusable for the intended purpose and yet remain in possession for as much as six weeks beyond the sixty day repair deadline. III. DEFENDANTS FAIL TO STATE A DEFENSE OF LACHES AS A MATTER OF LAW. In Paragraph 29 of their New Matter, the tenants aver that our judgment is barred by the doctrine of laches. , In addition to the absence of any averments of prejudice, the tenants do not aver that the delay was unreasonable or that the owner had been able to relet the premises prior to filing the Complaint in Confession of Judgment. At the time of the tenants' breach of the Commercial Lease in this case, by their abandonment of the premises and their failure to pay rent for the unexpired portion of their nine month termination period, the law of Cumberland County, Pennsylvania, in the case of breach of a commercial lease, was that a landlord had a duty to make reasonable efforts to obtain a new tenant in mitigation of damages. stonehedge Square Limited Partnership v. Movie Merchants, Inc., 45 Cumbo 5 (1995). Therefore, a claim for damages for rent before reletting the entire premises would have been premature. The nine month termination period ended on October 11, 1996, and the Stonehedge case was reversed in cases such as the present case where the Commercial Lease does not specifically require mitigation of damages. The reversal was reported at ___ Pa. Super. -' 685 A2d 1019 on January 17, 1997, and we filed our Complaint in Confession of Judgment on January 29, 1997. We submit that it is obvious that we are not guilty of laches under the application of the law to the facts of this -15- WAYNBF.SHADB A_ilIA., SlW"'PclllI"'_ CarIiaIc.I'<oIIIyIv.... 1701l case. To hold otherwise would be to say that we should not have taken any time after expiration of the nine month termination period to attempt to resolve this case upon an amicable basis. IV. VAGUE AND AMBIGUOUS ALLEGATIONS IN DEFENDANTS' PLEADINGS PREVENT US FROM PRESENTING A DEFENSE. Even if a counterclaim for unliquidated damages in trespass were permissible in a confession of judgment action, Paragraphs 40 through 42 of the tenants' Counterclaim, which allege that the owner unlawfully entered the leased premises without the permission of the tenants, do not even state when those allegedly wrongful entries occurred so that the owner is unable to make a meaningful response. In addition, Paragraph 31 of the tenants' Counterclaim alleges the attachment of the written Lease as Exhibit .C', but the Lease is not attached to the Counterclaim. While there is no question in this case as to the terms of the applicable lease, we submit that the tenants should be ordered to correct this error if they are to be permitted to advance this counterclaim. Date: April 2, 1997 Respectfully submitted, ttI~~, Wayne/F. Shade, Esquire supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Plaintiff -16- ":~- , I~I , ~I ; ~, 1~ :.' ~'~ ~ ~ , Cj ~,~t ~~i .. !II ';i~ '~ "" ..' " ., , ' ., ~ ': ~- " . ,"",';.'> C" 'lit:'. ~ .: "- 'II r,. .' ;: .~ t.~ " lI'~\ .. ) 0, ~ , ", If' , ". -." ..,. '.,..'.1 $.' U.. ,- <., : ~:.J f .:r ".. c~ ',) , ,. If:u: c...'. i'~ F' . ~j u] -, -.. ~}u. - l._ r- -'. Q ::J 0'\ CJ ~~ ~~ ~~, Il<lI) Z~ Eo< Ol>.l SZ ~p...~ ~~ U~j g r.. ::l.., o I:> o Hr.. !;!USUO ~~ ~ N Z o Eo<OJO U U..;t~ <Ill) ~ I'll) I>.lHO'II>.l e3H f2: zS ~ ci 0 . U Z H If.l .If.l Z.,.., ~~ .-4 ~Il< ~ U o ~ :> 'tl fI.l Iii .~ ::1 Iii t!JH'tl Z~s:: ~lI)~ .j:l .~ :E: ~~ ~ Z o H ~~~ iS~?J Su,g ~~.., ~j:l~ lI)ZlI) eij~~ lI)~{2! - 0 f<.OU f<.Eo< H Z ~~I>.l H~~ :s 0 ... ." : '" ~ 3 J i CI.l !( ~ ~ ra: i~~ ! !U u . , WAYN!! F, SHAOI! ^ Uorncy al law .5] Wnt Pomfrrt Strn'1 Carlidc, PmnI)'lvania 17013 and that Defendants withheld $800 in rent for January of 1994, but it is denied that Defendants suffered extensive damage to their contents. On the contrary, Plaintiff avers that Defendants never established to Plaintiff that they suffered any damage whatsoever to their contents. By way of further answer, plaintiff avers that the leaks in December of 1993 and January of 1994 were due to severe and extraordinary snow and ice conditions on the roof which were common to hundreds of buildings throughout the Cumberland County area at that time. As a result of accumulation of snow and ice, water was backing up under the seams of the roof. The leak did not result from a defect in the roof but from water that was forced back under the seams in the reverse direction from the designed direction of flow as a result of obstructions from record accumulations of snow and ice on the roof. There was nothing that anyone could do to repair that common condition at that time. When the snow and ice were gone, so was the leak; and Defendants made no further complaints concerning leaks in the roof until January of 1995. 3d. The averments of Paragraph 3d of Defendants' Petition are admitted in part and denied in part. It is admitted that water entered the building in January of 1995, but it is denied that it resulted from a leak in the roof or a continuation of the problems from the extraordinary snow and ice conditions in December of 1993 and January of 1994. On the contrary, Plaintiff avers that water entered the building in January of 1995 because the roof drains were covered by litter which caused water to -2- WAYNH F. SHAUl! Att&nncy atl..aw 53 Wul Pom(rtt Strr~t Carli.Ie, Pmnsylvanu 170\3 accumulate on the roof to approximately two feet in depth which, again, forced water back under the seams. When Plaintiff was alerted to the problem, he took care of it immediately. As soon as the obstructions were removed from the drains, the problem was resolved; and Defendants made no further complaints until on or about January 5, 1996. Je. The averments of Paragraph Je of Defendants' Petition are denied. On the contrary, Plaintiff avers that Defendants never notified him of any leak in December of 1995, and Plaintiff has no knowledge of a leak in December of 1995. By way of further answer, Plaintiff avers that any leak in December of 1995, if it existed, was not a continuation of the previous problems in January of 1995 which arose from the aforesaid obstructions to the drains in the roof. Jf. The averments of Paragraph Jf of Defendants' Petition are admitted in part and denied in part. It is admitted that Defendants informed Plaintiff that the roof was leaking and that Defendants withheld one-half of the rent; but it is denied that those events took place on or about January 2, 1996, and that Defendants said that the roof was "still" leaking. On the contrary, Plaintiff avers that Defendants notified him on or about January 5, 1996, that the roof was again leaking and that they withheld one-half of the rent for the month of January on or about the same date of January 5, 1996, when they paid the rent for the month of January of 1996. -J- WAYNE F. SUADI: Attorney a1 lAw 53 Wrl' Pomfrrl S~I CarliJle, I'mruylvania 1701l 3g. - 3n. The averments of Paragraphs 3g through 3n inclusive of Defendants' Petition are admitted in part and denied in part. It is admitted that the roof of the premises leaked from January 5, 1996, through February 23, 1996, due to the extraordinary conditions caused by another record blizzard condition and officially declared general state of emergency throughout the Commonwealth of Pennsylvania. As to the allegations of loss of business, Plaintiff avers that they are impertinent as being beyond the terms of Paragraph 10 of the Commercial Lease which clearly and unambiguously expressed the intentions of the parties that the claims of Defendants resulting from damage to the property would be limited to rent abatement in accordance with the formula set forth therein. By way of further answer, Plaintiff avers that any such losses of business, being within the exclusive knowledge of Defendants, are denied and proof thereof is demanded. 4. The averments of Paragraph 4 of Defendants' Petition are admitted in part and denied in part. It is admitted that, on or about January 11, 1996, Defendants provided Plaintiff with written notice of termination of the lease which alleged that there were significant water problems with the property and that Plaintiff refused to correct those problems, but it is denied that Plaintiff refused to correct the problems. On the contrary, Plaintiff avers that he did correct the problems less than sixty days after he was notified of the problems on January 5, 1996. -4- WAYNI! F. SHADI! Allomty at taw oS) Weal Pomfrrl SInd Carli.Ie, rrnnl)'lvlDU 17013 5. The averments of Paragraph 5 of Defendants' Petition are admitted in part and denied in part. It is admitted that, on or about March 4, 1996, Defendants provided Plaintiff with written notice of damages that they claimed to have suffered as a result of damage to the property for the month of February of 1996, but it is denied that Defendants are entitled to such damages as claimed. On the contrary, Plaintiff avers that Paragraph 10 of the Commercial Lease clearly and unambiguously expresses the intentions of the parties that the claims of Defendants resulting from damage rendering the building unfit for occupancy would be limited to rent abatement in accordance with the formula set forth therein. Plaintiff further avers that, even if Paragraph 10 of the Commercial Lease had not excluded Defendants' claims for consequential damages, their assessment of such alleged consequential damages is impertinent in that it claims loss of gross receipts without taking into account the costs of doing business. 6. The averments of Paragraph 6 of Defendants' Petition are denied. On the contrary, Plaintiff avers that the leaks in the roof in January of 1996 were caused by extraordinary blizzard conditions, that Plaintiff took immediate action to engage a roofing contractor, that the roofing contractor could not repair the roof until weather conditions permitted and that the roof was repaired as soon as possible. -5- WAYNe F. SHAD!! AUomty at taw 53 W(.1 Pomfrt'1 Strc('1 Carli.Ie:, Pmnlylvania 17013 7. The averments of Paragraph 7 of Defendants' Petition are denied. On the contrary, Plaintiff avers that Defendants' pleadings contain several admissions that they conducted business in the premises during January, February and March of 1996. By way of further answer, plaintiff avers that, by holding over, in the leased premises and using them for their food businesses and as a location for a public sale of their personal property, for more than sixty days after the roof leak alleged in Paragraph Je above on December 18, 1995, and more than sixty days after any date in January of 1996, Defendants have waived any claim that the building was unfit for occupancy. 8. The averments of Paragraph 8 of Defendants' Petition are admitted in part and denied in part. It is admitted that on or about April 24, 1996, Defendants finally provided Plaintiff with formal notice of their abandonment of the premises and that they alleged that their abandonment was due to several severe problems with the property, but it is denied that Defendants abandoned the premises for that reason. On the contrary, Plaintiff avers that Defendants abandoned the premises because they had purchased another property several months earlier and were simply looking for an excuse to avoid their obligations under the written Commercial Lease. By way of further answer, the responses in Paragraph 7 above are incorporated herein by reference as though fully set forth. -6- (r, In ,. -- ;2: .. ~< 1,1.(~ ..:z ,.,.,- ( .' )::.) It;' ~- ..1:.. c;: "'0 ;"'I'"::i ~c, -.~ '-,.. L. ,.... :,_~ if} I u!~ [E'. er: "1~ r-'. 0<<: :"'J :a: ::.~ ~ ,.... ::> 0"\ u l:;~ ~~ I-. .... ll-<en 0 - zlJa ~ - en ~ S J ~ Or.:! ~ . z ~~~~I u 0 z H ~ I j H "tl UI f-< fI.l 11-I J:l -~ U '"' -11-I III >< J:l r.:! ~ Z..-l t!l:j~ a I!j o I:> ~~ 0 HI-. Z~J:l 0 ~u~UO ~"@ ~en~ >< ~ ::J!HNZ ~ ~!:: o f-<ClOO ~ll-< > ./:1 U U-:tH .:>'. <Ien ; ~ HH ~ ....en ~~ ~~ r.:!::10\~ ...lH ~:> . ~~ ~:S Z~~!?R R . " ,c' " ,'^" " , ' ~ . !I ~', . t:l , I I .> ~~" ,H ' .... . ~-, 0 ' .... " '.>) , N ii <l:> ,- . ~ > . '~ ,",' 'f ". n : leak on the outside of the building due to the amount of snow on the roof, however, the location of the leak on the inside had been previously marked by the Defendants. In addition, this was the sarne place the roof had leaked in 1992, 1993, 1994, and 1995, all of which Plaintiff had notice. Plaintiff had been advised by Defendants in each of those years that the repairs that he attempted to make to the roof were insufficient and that the roof needed to be replaced. 9. The answering Defendants ar~ without sufficient information or belief to form an opinion as to the truth of the allegations contained in Paragraph 9 and therefore, strict proof, if relevant, is demanded at trial. 10. Denied. The answering Defendants are without sufficient information or belief to form an opinion as to the truth of the allegations contained in Paragraph 10 and therefore, strict proof, if relevant, is demanded at trial. 11. Denied. Defendants deny that the roof was repaired on February 27, and that this repair corrected the problem with the roof. To the contrary, the roof continued to leak and defendants had continual contact with the roofers through March of 1996. Plaintiff was advised by the Defendants that the roof was still leaking through March, 1996. 12. Denied. Defendants utilized the rear of the premises as a banquet hall for their catering business and the front of the premises as a restaurant. However, due to the roof leak, which made the rear of the premises unusable, Defendants were r I l~aJQlcr 3 forced to close the restaurant for use as a banquet facility on numerous occasions. All of which notice had been provided to Plaintiff by Defendants. 13. Denied. The allegations contained in this paragraph are conclusions of law to which no response is necessary. 14. Denied. It is admitted that the portion of the rear of the premises that was unusable was 28.5 feet by 89 feet deep for a total of 2,536.5 square feet. However, the 27 feet wide by 92 feet deep basement was rendered unusable due to several factors, including but not limited to the state and local building codes, and the fact that it usually was under one (1) foot of water. 15. Admitted. 16. Denied. The Defendants deny that Plaintiff has acknowledged any abatement. In addition, the dates put in Paragraph 16 are incorrect. If the defendants are entitled to abatement of rent, it would run from December 18, 1995, through April 1, 1996, or 106 days, at a rate of $63.00 per day. 17. Admitted. 18. The allegations contained in this paragraph are conclusions of law to which no response is necessary. 19. Admitted. A true and correct copy of the notice dated January 11, 1996 is attached hereto as Exhibit "A" and made a part hereof. 20. Denied. Defendants deny that they defaulted under Paragraph 8{c) of the lease by abandonment of the leased premises. To the contrary, Plaintiff continually refused to I.~&HW.CC' 4 repair the leak in the roof for a period of over sixty (60) days pursuant to Paragraph 10 of the Lease, "if, during the term of this lease, the building is so damaged by fire or other casualty, not occurring through the negligence of tenant, so that the building is rendered unfit for occupancy, and the building cannot be repaired within sixty (60) days from the occurrence of such damage, then this lease shall cease and determine from that date of such damage." 21. Denied. Defendants deny that they are liable for rent to Plaintiff in any amount. According to the terms of the lease, the property was rendered unusable as a restaurant or catering business as of December 18, 1995. Upon the expiration of sixty (60) days from that date, the Lease becomes null and void backdated to December 18, 1995. WHEREFORE, Defendants, Linda M. Ewing and Martha K. Shelly, demand judgment in their favor and against Plaintiff, Cochran & Allen, Inc. NEW MATTER 22. The answers contained in Paragraphs 1 through 21 are hereby incorporated by reference as if fully set forth herein. 23. Throughout the term of the lease, the Defendants, Linda M. Ewing and Martha K. Shelly, experienced numerous, ongoing problems with the leased premises to wit: a. In December, 1992, the Defendants, Linda M. Ewing and Martha K. Shelly, reported to the Plaintiff I.~AHW.IX 5 b. c. d. l.~aIQltc e. that the roof was leaking; In December, 1993, the Defendants, Linda M. Ewing and Martha K. Shelly, again reported to plaintiff that the roof was leaking; In January, 1994, the roof was still leaking and caused extensive damage to the contents, as a result of which the Defendants, Linda M. Ewing and Martha K. Shelly, withheld $800.00 from rent due in January, 1994; In January, 1995, the roof continued to leak and plaintiff attempted to patch the roof to correct the problem; On or about December 18, 1995 the roof continued to leak and caused damage for a luncheon scheduled in the rear of the premises; On or about January 2, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, informed plaintiff that the roof was still leaking and demanded that it be repaired. The Defendants, Linda M. Ewing and Martha K. Shelly, withheld one-half (i) of the rent due to the leaking roof and water damage to the rear of the leased premises; On or about January 13, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, noticed that the ceiling and back door of the leased premises were both leaking badly. As a result of these f. g. 6 h. 1. "~>>IW.CC j. leaks, Defendants were forced to remove all of the items from the walls; The roof continued to leak throughout the month of January, 1996, and on January 17, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, were forced to close the restaurant in the front of the building in order to move a luncheon that was scheduled for the rear of the premises to the front of the premises; Likewise, on January 20, 1996, the restaurant was closed in order to have a banquet in the front of the premises due to the back of the premises being too wet to use; On January 27, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, were forced to cancel a wedding reception scheduled for the back room due to the extensive leaking in the roof, ceiling, back door, and accumulation of water on the floor from said leaks; The leased premises continued to leak throughout the month of February, 1996; On February 8, 1996, the restaurant was again forced to close so that a catering engagement could be held in the front of the leased premises; On February 18, 1996, a private party was moved from the rear of the leased premises to a client's k. 1. m. 7 house because of the accumulation of puddles, dampness and leaking of the roof; and n. On February 23, 1996, the restaurant was again forced to close to hold a private party in the front of the leased premises due to the extensive water leaking in the rear of the leased premises. 24. On or about January 11, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, provided written notice to the Plaintiff that, as a result of the severe water problems and plaintiff's refusal to correct or repair these problems, that the Defendants, Linda M. Ewing and Martha K. Shelly, were terminating the lease dated April 1, 1992. A true and correct copy of the written notice is attached hereto and made a part hereof and marked as Exhibit "A". t r \ 25. On or about March 4, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, provided written notice of damages the Defendants suffered as a result of the damage to the property for the month of February, 1996, totaling $8,860.00, and after deducting rent of $3,002.00, the Defendants demanded from Plaintiff $5,858.00. 26. Despite oral and writ~en notice of the damage to the leased premises, the Plaintiff refused to correct and repair said damage. 27. As a result of the damage to the leased premises, the Defendants, Linda M. Ewing and Martha K. Shelly, were unable to continue to operate either the restaurant or catering business at 1~&HW.("(" 8 the premises located at 22 South Hanover Street, and were, therefore, forced to vacate said premises on or about April 1, 1996. 28. On or about April 24, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, by and through the undersigned, confirmed that they had vacated the premises as of April 1, 1996, due to the "several severe problems with the property". A true and correct copy of the letter dated April 24, 1996, is attached hereto and made a part hereof and marked as Exhibit "B". 29. Plaintiff's cause of action is barred by the doctrine of laches. WHEREFORE, Defendants, Linda M. Ewing and Martha K. Shelly demand judgment in their favor and against Plaintiff, Cochran & Allen, Inc. COUNTERCLAIM 30. The answers in Paragraphs 1 through 21 and allegations contained in Paragraphs 22 through 29 are incorporated by reference and made a part hereof as if fully set forth herein. 31. On or about April 1, 1992, plaintiff, Cochran & Allen, Inc., by and through its president Dennis B. Gotthard, entered into a written lease agreement with Defendants, Linda M. Ewing and Martha K. Shelly, for the premises located at 22 South Hanover Street, Carlisle, Cumberland County, pennsylvania. A true and correct copy of said lease is attached hereto and made a part hereof and marked as Exhibit "Co. ..~U6Itt 9 32. The Defendants, Linda M. Ewing and Martha K. Shelly, operated a restaurant named Miss Garbo's in the front section of the leased premises, and a catering business named Carlisle Catering in the rear of the leased premises. 33. Throughout the term of the lease, the Defendants, Linda M. Ewing and Martha K. Shelly, experienced numerous, ongoing problems with the leased premises to wit: a. In December, 1992, the Defendants, Linda M. Ewing and Martha K. Shelly, reported to the Plaintiff that the roof was leaking; b. In December, 1993, the Defendants, Linda M. Ewing and Martha K. Shelly, again reported to Plaintiff that the roof was leaking; c. In January, 1994, the roof was still leaking and caused extensive damage to the contents, as a result of which the Defendants, Linda M. Ewing and Martha K. Shelly, withheld $800.00 from rent due in January, 1994; d. In January, 1995, the roof continued to leak and Plaintiff attempted to patch the roof to correct the problem; e. On or about December 18, 1995 the roof continued to leak and caused damage for a luncheon scheduled in the rear of the premises; f. On or about January 2, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, informed Plaintiff "~,,*l'C 10 that the roof was still leaking and demanded that it be repaired. The Defendants, Linda M. Ewing and Martha K. Shelly, withheld one-half (i) of the rent due to the leaking roof and water damage to the rear of the leased premises; g. On or about January 13, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, noticed that the ceiling and back door of the leased premises were both leaking badly. As a result of these leaks, Defendants were forced to remove all of the items from the walls; h. The roof continued to leak throughout the month of January, 1996, and on January 17, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, were forced to close the restaurant in the front of the building in order to move a luncheon that was scheduled for the rear of the premises to the front of the premises; i. Likewise, on January 20, 1996, the restaurant was closed in order to have a banquet in the front of the premises due to the back of the premises being too wet to use; On January 27, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, were forced to cancel a wedding reception scheduled for the back room due to the extensive leaking in the roof, ceiling, I.~""'cc j . 11 back door, and accumulation of water on the floor from said leaks; k. The leased premises continued to leak throughout the month of February, 1996; 1. On February 8, 1996, the restaurant was again forced to close so that a catering engagement could be held in the front of the leased premises; m. On February 18, 1996, a private party was moved from the rear of the leased premises to a client's house because of the accumulation of puddles, dampness and leaking of the roof; and n. On February 23, 1996, the restaurant was again forced to close to hold a private party in the front of the leased premises due to the extensive water leaking in the rear of the leased premises. 34. On or about January 11, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, provided written notice to the Plaintiff that, as a result of the severe water problems and Plaintiff's refusal to correct or repair these problems, that the Defendants, Linda M. Ewing and Martha K. Shelly, were terminating the lease dated April 1, 1992. A true and correct copy of the written notice is attached hereto and made a part hereof and marked as Exhibit "A". 35. On or about March 4, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, provided written notice of damages the Defendants suffered as a result of the damage to the property ..~.....('C 12 for the month of February, 1996, totaling $8,860.00, and after deducting rent of $3,002.00, the Defendants demanded from Plaintiff $5,858.00. 36. Despite oral and written notice of the damage to the leased premises, the Plaintiff refused to correct and repair said damage. 37. As a result of the damage to the leased premises, the Defendants, Linda M. Ewing and Martha K. Shelly, were unable to continue to operate either the restaurant or catering business at the premises located at 22 South Hanover Street, and were, therefore, forced to vacate said premises on or about April 1, 1996. 38. As a result of the damage to the leased premises, the Defendants, Linda M. Ewing and Martha K. Shelly, suffered damages of loss of business in the amount of at least $5,858.00. Notice of said damages were provided to Plaintiff by Defendants on March 4, 1996. A true and correct copy of the Notice dated March 4, 1996 is attached hereto and made a part hereof and marked as Exhibit "C". 39. On or about April 24, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, by and through the undersigned, confirmed that they had vacated the premises as of April 1, 1996, due to the "several severe problems with the property". A true and correct copy of the letter dated April 24, 1996, is attached hereto and made a part hereof and marked as Exhibit "B". 40. During the term of the lease, Plaintiff, through its "~W&JrAl('C 13 HANFT & VOHS A,.-nJIISI':YS AT LAW II WEST l'Ol>ll'Iu:-r STUI~ET. S"ITl'; ~ CAIU.I!-tLl:. PA t701:.J MICHAEL J. HANFT WU.LlAM C. Valls 17(7) ;:!49'~373 rAX t717. ~4Y'04~" April 24, 1996 Wayne F. Shade, Esquire 53 West Pomfret Street Carlisle, PA 17013 RE: Ewing/Shelly/Gotthard Dear ~Iayne: Please be advised that this firm represents Linda M. Ewing and Martha K. Shelly. I am in receipt of your letter dated April 10, 1996, and I have discussed same with my clients. According to them, your cl ient had been inforn.ed about the several severe problems with the property and that they would be vacating the property as of April 1, 1996. In any event, you can consider this as the additional notificati.on that you requested; as of April 1, 1996, my clients have vacated the property due to several severe problems with the pr.operty that your client was aware of and failed to remedy. As such, my clients maintain that your client is not entitled to any damages. In addition, please instruct your client to present the various checks that he received from my clients to his bank [or payment. They are in the process of closing the records of Miss Garbos and cannot do so until all of the checks have cleared th.;! bank. I appreciate your attention to this matter. Should any need arise, I am authorized to accept service on behalf of my clients. Very truly yours, HANF1 & ~OHS r. U"-- w~am C. Vohs \~CV: ksb cc: Linda M. Ewing Martha K. Shelly , ,; I ,; ~'\\, ': ,. l..'~.' . w~~ . 9:vd" 0ft. 'ifj",Vn ~ 2738!;a -!'@ ~ we: Q9Jwlt", Q9 /'. / C::!FUMUJIV(JI)t Cd/fAtep,l d . /' ~~/;f!IJ~ 17013 -ro,.1:)en/J1s \.C'o/Tlrcu...ct- ( 717) 258-5.937 .1 /99/- ;U s:f u:r.. ..., mlJ~ '(' _ Loss oJ r,.J(X)1'1<JL / ilirna..qeS -;:::el 19f~ fj /soo , ,.Jo ct5e of ,eo(Jm en~ /?'7aA-a( Feb. hr: mo-cq mtJI')t/h ~{;>Q.I')i')~";" 10 -r.~' (;: ~ e./C6e.d eal:, fr>> I'XP-- ~ .:I 100. - 1C6~ ~sf:..~ad )t/(!.OnJ fi;b. ;5' ~II",</lcd tiJlJt:- Yel. I"",)..vt_' ~0fk:., . (bu.Ld I)~ tI~e ba(): /1:0am. ~II J:J'"4r7 ~h"Pf"- cUsa./lowe4 ~1:ffi mee-lille; , r:;J, /S' rYI.,ed 1:'. 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". ~ - :':;, . . \' .1"" . ,.. \ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COCHRAN & ALLEN, INC., Plaintiff CIVIL ACTION - LAW V. : : : : : NO. 97-482 CIVIL TERM LINDA M. EWING and MARTHA K. SHELLY, Defendants PETITION TO OPEN CONFESSED JUDGMENT C AND NOW, this "27 day of February, 1997, comes the Defendants, Linda M. Ewing and Martha K. Shelly, by and through their attorneys, Hanft & Vohs, and petition this Honorable Court to Open the Confessed Judgment entered on January 29, 1997, by Plaintiff and against Defendants follows: 1. On or about April 1, 1992, Plaintiff, Cochran & Allen, Inc., by and through its president Dennis B. Gotthard, entered into a written lease agreement with Defendants, Linda M. Ewing and Martha K. Shelly, for the premises located at 22 South Hanover Street, Carlisle, Cumberland County, Pennsylvania. A true and correct copy of said lease is attached hereto and made a part hereof and marked as Exhibit "A". 2. The Defendants, Linda M. Ewing and Martha K. Shelly, operated a restaurant named Miss Garbo's in the front section of the leased premises, and a catering business named Carlisle Catering in the rear of the leased premises. 3. Throughout the term of the lease, the Defendants, Linda M. Ewing and Martha K. Shelly, experienced numerous, ongoing '~ftJ) 2 problems with the leased premises to witl a. In December, 1992, the Defendants, Linda M. Ewing and Martha K. Shelly, reported to the Plaintiff that the roof was leaking; b. In December, 1993, the Defendants, Linda M. Ewing and Martha K. Shelly, again reported to Plaintiff that the roof was leaking; c. In January, 1994, the roof was still leaking and caused extensive damage to the contents, as a result of which the Defendants, Linda M. Ewing and Martha K. Shelly, withheld $800.00 from rent due in January, 1994; d. In January, 1995, the roof continued to leak and Plaintiff attempted to patch the roof to correct the problem; e. On or about December l8, 1995 the roof continued to leak and caused damage for a luncheon scheduled in the rear of the premises; f. On or about January 2, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, informed Plaintiff that the roof was still leaking and demanded that it be repaired. The Defendants, Linda M. Ewing and Martha K. Shelly, withheld one-half (i) of the rent due to the roof leaking and water damage to the rear of the leased premises; .~ 3 .................... g. On or about January 13, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, noticed that the ceiling and back door of the leased premises was leaking badly. As a result of these leaks, all of the items were removed from the walls; h. The roof continued to leak throughout the month of January, 1996, and on January 17, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, were forced to close the restaurant in the front of the building in order to move a luncheon that was scheduled for the rear of the premises to the front of the premises; i. Likewise, on January 20, 1996, the restaurant was closed in order to have a banquet in the front of the premises due to the back of the premises being too wet to use; On January 27, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, were forced to cancel a wedding reception scheduled for the back room due to the extensive leaking in the roof, ceiling, back door, and accumulation of water on the floor from said leaks; The leased premises continued to leak throughout the month of February, 1996; On February 8, 1996, the restaurant was again forced to close to move a catering engagement to j. k. 1. 4 the front of the leased premises; m. On February 18, 1996, a private party was moved from the rear of the leased premises to a client's house because of the accumulation of puddles, dampness and leaking of the roof; and n. On February 23, 1996, the restaurant was again forced to close to hold a private party in the front of the leased premises due to the extensive water leaking in the rear of the leased premises. 4. On or about January 11, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, provided written notice to the Plaintiff that, as a result of the severe water problems and Plaintiff's refusal to correct or repair the water problems, that the Defendants, Linda M. Ewing and Martha K. Shelly, were terminating the lease dated April l, 1992. A true and correct copy of the written notice is attached hereto and made a part hereof and marked as Exhibit "B". 5. On or about March 4, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, provided written notice of damages the Defendants suffered as a result of the damage to the property for the month of February, 1996, totaling $8,860.00, and after deducting rent of $3,002.00, the Defendants demanded from Plaintiff $5,858.00. 6. Despite oral and written notice of the damage to the leased premises, the Plaintiff refused to correct and repair said damage. ..................., 5 7. As a result of the damage to the leased premises, the Defendants, Linda M. Ewing and Martha K. Shelly, were unable to continue to operate either the restaurant or catering business at the premises located at 22 South Hanover Street, and were, therefore, forced to vacate said premises on or about April 1, 1996. 8. On or about April 24, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, by and through the undersigned, confirmed that they had vacated the premises as of April 1, 1996, due to the "several severe problems with the property". A true and correct copy of the letter dated April 24, 1996, is attached hereto and made a part hereof and marked as Exhibit "Co. 9. On January 29, 1997, Plaintiff, Cochran & Allen, Inc., filed a Complaint at the above term and number seeking a Confession of Judgment against Defendants, Linda M. Ewing and Martha K. Shelly. 10. Pursuant to that Complaint, judgment was confessed and entered against Defendants, Linda M. Ewing and Martha K. Shelly, on or about January 29, 1997. 11. By virtue of the foregoing allegations regarding the damage to the leased premises, the Defendants, Linda M. Ewing and Martha K. Shelly, have a meritorious defense to the allegations in Plaintiff's Complaint. 12. Contemporaneously with the filing of this Petition to Open Confessed Judgment, the Defendants, Linda M. Ewing and Martha K. Shelly, have filed an Answer With New Matter and '~ftD 6 WAYNI! F. SHADE Atlomey AI Law , South Hanavcr SlIUt Carli.Ie, hMlylvani.a 170ll Landlord and shall remain upon and be surrendered with the premises as a part thereof, it is understood that all equipment and interior furnishings which have been provided by Tenant and which can be removed without damage to the premises will remain the property of Tenant and may be removed by Tenant. A list of such removable items of which the parties are aware and are in agreement at the date of execution of this Lease is attached hereto as Exhibit "A" and incorporated herein by reference as though fully set forth. The attachment of this list shall not limit Tenant to the contents of the list so long as any additional items to be removed by Tenant may be removed without damage to the premises. Although it is the general intention of the parties hereto that, in the event of termination of this Lease by Landlord prior to the expiration thereof, Tenant shall have the opportunity to relocate to the property of Landlord known as Western Village, the number of variables involved render it infeasible to establish a binding option therefor. However, in the event of mutual agreement for such relocation to Western Village and only in the event of relocation to Western Village, Landlord shall reimburse Tenant for moving expenses. The moving expense reimbursement shall be calculated upon a maximum moving expense of Five Thousand and NO/100 ($5,OOO.OO) Dollars. In the event of mutual agreement for such relocation to Western prior to April 1, 1993, the reimbursement shall be one hundred (100%) percent of -3- WAYNE F. SHADE Atl.omcy &1 UW ji Soulh H2IlOYu Sltttt C.rlillc:. PtMsy/vani.t 17013 month payable on the first business day of each month, in advance and without demand in legal currency of the United States of America. Any rents which are not received by Landlord when due shall carry a late charge of five (5%) percent of the amount of delinquent rent, A check that is returned by the drawee without payment shall be considered to be delinquent, and any costs incurred by Landlord with respect to the returned check shall be collectible from Tenant as additional rent. On May 1, 1994, said rent shall increase to Three Thousand Twenty and NO/100 ($3,020.00) Dollars. On May 1, 1995, said rent shall increase to Three Thousand One Hundred Twenty and NO/100 ($3,120.00) Dollars. On May 1, 1996, said rent shall increase to Three Thousand Two Hundred Twenty and NO/100 ($3,220.00) Dollars. 3. Landlord shall also provide the following: (a) Real estate taxes; ~ (b) Tenant shall have absolute control and responsibility for all parking spaces along the fence to the west of the Yaro-Gotthard parking lot, the parking spaces immediately adjacent to the building along the west of 22 South Hanover street and the parking spaces at 134 West Pomfret street; (e) Tenant and the licensees and invitees of Tenant may use any empty spaces in the Yaro-Gotthard parking lot from 5:00 P.M. through 7:00 A.M. on any day during the term of this Lease; -5- ~ (d) Tenant may locate one large steel commercial trash " container in the fenced-in area immediately to the west of the Yaro-Gotthard parking lot; (e) Tenant may utilize three existing window air conditioners. In the event that the air conditioners should need repair, Tenant may repair them but will have no duty to repair them; and (f) Prior to May 1, 1992, Landlord will repair the sewer access hole in the seed area with concrete and tile II and will repair the ceiling leak in the paint room. 4. Tenant shall provide all other services to the leased premises including, without limitation, heat, air conditioning, electricity, water and sewer services, janitorial services and all outside maintenance including mowing, trimming and snow removal. As to snow removal, either Landlord or Tenant may provide snow removal to all parking areas but will have no duty to do so. Tenant shall be responsible for all snow removal required by local ordinance with respect to the property at 22 '"/ " 'k South Hanover street. /' ,)~ (.>,rr.'~'IM:: c, 5, Tenant shall maintain in full force and effect public ;:!" liability insurance with bodily injury liability limits in an f' amount of at least One Million and NO/100 ($1,000,000.00) Dollars per person, per occurrence and property damage liability insurance in an amount of at least Two Hundred Seventy-Five Thousand and NO/100 ($275,000.00) Dollars for each occurrence, WAYNE F. SHADE ADOmty .t Law .s South lIanoyu Stnd C.rlisle, rtMlylvani.l 1701l -6- -, " with said insurance coverages to be in good and reliable insurance companies acceptable to Landlord and to name Landlord and Tenant as the insureds, Landlord reserves the right to approve the agent and carrier from which said insurance shall be obtained, which approval shall not be unreasonably withheld; and if the agent or carrier is not approved, the reasons for disapproval shall be specified in writing by Landlord. Landlord shall be included as an additional insured as the interests of Landlord may appear on all such insurance coverages. Tenant shall provide Landlord at all times with certificates of the " required insurance coverages which shall require notification to l' (L(I(' Landlo~~~(_Any changes, terminations or cancellations of -- ._-,-------~- . coverages. Nothing shall be done upon said premises contrary to the conditions of any policies of insurance upon the property whereby the insurance risk may be increased or the insurance may be invalidated. 6. Tenant may utilize the existing signs of Landlord on the building at 22 South Hanover Street. Landlord reserves the right to approve the size, shape and contents of Tenant's business signs, which approval shall not be unreasonably withheld; and if approval is withheld, the reasons therefor shall be specified in writing by Landlord. 7. A security deposit in the amount of Three Thousand and NO/100 ($3,OOO.OO) Dollars shall be paid by Tenant to Landlord in addition to the rent on May 1, 1992. WAYNE F, SHADE ADomC:y II Law , Sou"" Hanovtr SUttl C.tlillc:, rtnnlyl't&l\ll 1701l -7- ill I 8. Tenant shall be considered to be in default under this Lease in the event of any of the following: (a) Failure to make any monthly payment of rent due for a period of thirty (3D) days after receipt of written notice of nonpayment of rent. Time shall be of the essence of this Lease with respect to the required payment of rent; (b) Pendency of any bankruptcy or liquidation proceedings against Tenant or pendency of attachment or execution against Tenant, both for a period of thirty (3D) days; or (c) Abandonment of the leased premises. 9. In the event of such default, this Lease may, at the option of Landlord, be forthwith terminated and become absolutely void without any right on the part of Tenant, or those claiming under Tenant, to reinstate the same by payment or other removal of default. In the alternative, at the option of Landlord, all rent for the entire unexpired term of this Lease shall at once become due and payable by Tenant together with costs of suit and reasonable attorney fees actually paid by Landlord to his attorney, billed on an hourly basis at said attorney's usual hourly rate, hereby waiving the right of exemption and inquisition. Landlord may then, at the option of Landlord, among other remedies available to Landlord, proceed by any attorney to sign for Tenant or for those claiming under Tenant an agreement WAYNC F. SHADC Aaomcy at Law j South Haaoyu Slttcl C.tlisk. rCNuyl'llni.l 1701l -8- for entering in any competent court an amicable action and confession of judgment in ejectment of any term then past or present against Tenant and all persons claiming under Tenant for the recovery by Landlord of possession of the within premises, without any liability on the part of Landlord or of the said attorney, for which this shall be a sufficient warrant, and in like manner, such attorney may file an agreement for entering in any competent court an amicable action in confession of judgment for all rent and other charges due, or which may at anytime become due under the terms of this Lease or any extension or renewal thereof, and so on from time to time as often as any of said rent or other charges as aforesaid shall follow or become due or in arrears, without any liability on the part of said Landlord or said attorney and Tenant does hereby release Landlord for itself and those claiming under it from all errors and defects whatsoever in entering such actions, judgments or proceedings. No such termination of this Lease or taking or recovering possession of the premises shall deprive Landlord of any remedy or action against Tenant or those claiming under Tenant. It is further provided that Landlord shall have the right in any subsequent default or defaults to bring one or more amicable actions in the manner and form as hereinbefore set forth and any previous confession of judgment shall not exhaust the authority for the same herein nor deprive Landlord of entering judgment upon any future default. Acceptance by Landlord of any WAYNe F. SHADe AUDmcy al Law J South lIan~cr Sttc'~, Clllisle, rnvuylnni.i 1701l -9- "I .(,. ,<: . , WAYNe F, SHAD~ ^oomcy It Law S South Hmover Sltttl C.ulisle, PCMsyhanu 17013 payments under the terms of this Lease after default by Tenant, or any failure of Landlord to enforce any of the rights herein reserved to Landlord, shall not be considered a waiver of the right to enforce any of the terms of this Lease at anytime; and all of the terms of this Lease may be enforced together or successively at the option of Landlord. ~ 10. If, during the term of this Lease, the building is so damaged by fire or other casualty, not occurring through the negligence of Tenant, so that the building is rendered unfit for occupancy, and the building cannot be repaired within sixty (60) days from the occurrence of such damage, then this Lease shall cease and determine from the date of such damage. In the event that the building is capable of repair within sixty (60) days from the occurrence of such damage and in the'event that such repairs are effected, then a portion of the rent equal to the ratio of the unusable square footage to the total square footage leased shall be abated at the rate of $100.00 per day for each day that any damaged square footage is unusable; provided that, in the event that the damages are sufficiently severe that the premises cannot in any practical way be used as an operating restaurant, all of the rent shall be abated until the premises are once again usable as a restaurant. 11. Any notice or demand hereunder shall be sufficiently given if delivered to the receiving party, personally or by mail, at the office of the receiving party set forth herein. -10- 12. This Lease constitutes the entire agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter of this Lease. 13. This Lease may be amended or modified only by a written instrument signed by both parties. 14. This Lease will be governed by and will be construed in accordance with, the laws of the Commonwealth of Pennsylvania in effect at the date of execution hereof. 15. It is further agreed between the parties hereto, as follows: (a) Tenant shall not make any alterations, additions or improvements to the building or the premises upon which it is erected without Landlord's prior written consent, which consent shall not be unreasonably withheld; and if any proposed alterations, additions or improvements to the building are disapproved, the reasons therefor shall be stated by Landlord in writing; (b) Except as provided hereinabove with respect to equipment and interior furnishings which have been provided by Tenant and which can be removed without damage to the premises, all alterations, additions or improvements shall, at the option of Landlord, be the property of Landlord and shall remain upon and be surrendered with the premises as a WAYNE F. SHADE Aa.omcy a' Law 5 South IbAover Stml eafwlc:, Pcaflolylvania 17011 -11- et~f(\W '~~t, '5 IX \:> ~ 1\.llL en M'ffi1JL c-'.c..n. s ~ L, ~ r- G \U' 1..0:)1 r. ~ \U.tJti~. ~(.L "" ~ Ll..\.O. ~G:J:, / en. I -e.hc.tu. Q "1:, \.I..Q'ffi ~((.. Sli..~ U- ~'N\ '<'t\!llltic.i..Q o.J. ~ \.CO::. 'ruu< ~ S~-fi l.o S ':. ~ 'C6..\,~ 0J:iu.dJ..~<::. J::c..e.. ~ 9\oocl ~ 9tM (1"\Y\~~~d~~'^^ -.DCfb~ QOf\ lc.C)rM~cj,~) <t' CJJ..~O~W) (C.D~c.).c....!J)/'8\x0e5 'o~ ~ (\'So) 'oCU(\b~ \~ l~?) ?'lox ~ta \LQ;l. l(j Q, DO;, L.lD) ~lll"\U.:b1 tv OJ D.t~Wi.':.l'irOJ 'Ulo-N\ 0:, " ;d..uL ~ c..~en.u..i..CJl l~O ~ bWl\.~w..X) ~ l s Qj) '-' I) . <sn.. LOa )1...l.:bt..} ~ LsQ./U)\U lOO- G~) '5~~'('(\ ~ _ cJO'...SI.Oc.M. ~~(U..&.. c_, t, ~~":. -Uc..' \(oQ.;u.cJ. oj, ~ ~.oOO, c . '" .lJ,J)....lA. ~ -.de., OC1(j,'tLoY-o.P: WLOcrJ? ~Ci-S'?d ~\:lYn ~ cu.~" ~Qn~' Ccill ~(..Q'(l ~) ~ - I~ ~, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA it r COCHRAN & ALLEN, INC., plaintiff CIVIL ACTION - LAW V. : : : : : : NO. 97-482 CIVIL TERM i d I LINDA M. EWING and MARTHA K. SHELLY, Defendants JURY TRIAL DEMANDED ANSWER AND NEW MA'I"l'ER WITH COUNTERCLAIM AND NOW, comes the defendants, Linda M. Ewing and Martha K. Shelly, by and through their attorneys, Hanft & Vohs, and respond to Plaintiff's Complaint as follows I 1. Admi t ted . 2. Admitted. 3. Admitted. 4. The allegations contained in this paragraph are conclusions of law to which no response is necessary. To the extent a response is deemed appropriate, the allegations are denied. 5. Admitted. 6. Admitted. 7. Denied. Defendants provided notice to Plaintiff that the roof was leaking and causing water to enter the rear of the leased premises in December, 1992. 8. Denied. Although Plaintiff received notice on December 18, 1995, he did not inspect the premises to ascertain the location of the leak until January 5, 1996. It is admitted that he may have been prevented from ascertaining the location of the &~a.........I.'C 2 leak on the outside of the building due to the amount of snow on the roof, however, the location of the leak on the inside had been previously marked by the Defendants. In addition, this was the same place the roof had leaked in 1992, 1993, 1994, and 1995, all of which Plaintiff had notice. Plaintiff had been advised by Defendants in each of those years that the repairs that he attempted to make to the roof were insufficient and that the roof needed to be replaced. 9. The answering Defendants are without sufficient information or belief to form an opinion as to the truth of the allegations contained in Paragraph 9 and therefore, strict proof, if relevant, is demanded at trial. 10. Denied. The answering Defendants are without sufficient information or belief to form an opinion as to the truth of the allegations contained in Paragraph 10 and therefore, strict proof, if relevant, is demanded at trial. 1l. Denied. Defendants deny that the roof was repaired on February 27, and that this repair corrected the problem with the roof. To the contrary, the roof continued to leak and defendants had continual contact with the roofers through March of 1996. Plaintiff was advised by the Defendants that the roof was still leaking through March, 1996. 12. Denied. Defendants utilized the rear of the premises as a banquet hall for their catering business and the front of the premises as a restaurant. However, due to the roof leak, which made the rear of the premises unusable, Defendants were I.~"""'L'C 3 forced to close the restaurant for use as a banquet facility on numerous occasions. All of which notice had been provided to Plaintiff by Defendants. 13. Denied. The allegations contained in this paragraph are conclusions of law to which no response is necessary. 14. Denied. It is admitted that the portion of the rear of the premises that was unusable was 28.5 feet by 89 feet deep for a total of 2,536.5 square feet. However, the 27 feet wide by 92 feet deep basement was rendered unusable due to several factors, including but not limited to the state and local building codes, and the fact that it usually was under one (1) foot of water. 15. Admitted. 16. Denied. The Defendants deny that Plaintiff has acknowledged any abatement. In addition, the dates put in Paragraph 16 are incorrect. If the defendants are entitled to abatement of rent, it would run from December 18, 1995, through April l, 1996, or l06 days, at a rate of $63.00 per day. 17. Admitted. 18. The allegations contained in this paragraph are conclusions of law to which no response is necessary. 19. Admitted. A true and correct copy of the notice dated January 11, 1996 is attached hereto as Exhibit "A" and made a part hereof. 20. Denied. Defendants deny that they defaulted under Paragraph 8{c) of the lease by abandonment of the leased premises. To the contrary, Plaintiff continually refused to 1.'GJDfTN'Q .l'9lt'....cc 4 repair the leak in the roof for a period of over sixty (50) dayo pursuant to Paragraph 10 of the Lease, "if, during the term of this lease, the building is so damaged by fire or other casualty, not occurring through the negligence of tenant, so that the building is rendered unfit for occupancy, and the building cannot be repaired within sixty (60) days from the occurrence of such damage, then this lease shall cease and determine from that date of such damage." 21. Denied. Defendants deny that they are liable for rent to Plaintiff in any amount. According to the terms of the lease, the property was rendered unusable as a restaurant or catering business as of December 18, 1995. Upon the expiration of sixty (60) days from that date, the Lease becomes null and void backdated to December 18, 1995. WHEREFORE, Defendants, Linda M. Ewing and Martha K. Shelly, demand judgment in their favor and against Plaintiff, Cochran & Allen, Inc. NEW MATTER 22. The answers contained in Paragraphs 1 through 2l are hereby incorporated by reference as if fully set forth herein. 23. Throughout the term of the lease, the Defendants, Linda M. Ewing and Martha K. Shelly, experienced numerous, ongoing problems with the leased premises to wit: a. In December, 1992, the Defendants, Linda M. Ewing and Martha K, Shelly, reported to the Plaintiff "~ANi&.CC 5 d. e. g. "oa.-.._~ iJ .........a: b. that the roof was leaking; In December, 1993, the Defendants, Linda M. Ewinq and Martha K. Shelly, again reported to Plaintiff that the roof was leaking; In January, 1994, the roof was still leaking and caused extensive damage to the contents, as a result of which the Defendants, Linda M. Ewing and Martha K. Shelly, withheld $800.00 from rent due in January, 1994; In January, 1995, the roof continued to leak and Plaintiff attempted to patch the roof to correct the problem; On or about December 18, 1995 the roof continued to leak and caused damage for a luncheon scheduled in the rear of the premises; On or about January 2, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, informed Plaintiff that the roof was still leaking and demanded that it be repaired. The Defendants, Linda M. Ewing and Martha K. Shelly, withheld one-half (i) of the rent due to the leaking roof and water damage to the rear of the leased premises; On or about January 13, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, noticed that the ceiling and back door of the leased premises were both leaking badly. As a result of these c. f. 6 k. 1. m. "~~""'cr h. leaks, Defendants were forced to remove all of the items from the walls; The roof continued to leak throughout the month of January, 1996, and on January 17, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, were forced to close the restaurant in the front of the building in order to move a luncheon that was scheduled for the rear of the premises to the front of the premises; Likewise, on January 20, 1996, the restaurant was closed in order to have a banquet in the front of the premises due to the back of the premises being too wet to use; On January 27, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, were forced to cancel a wedding reception scheduled for the back room due to the extensive leaking in the roof, ceiling, back door, and accumulation of water on the floor from said leaks; The leased premises continued to leak throughout the month of February, 1996; On February 8, 1996, the restaurant was again forced to close so that a catering engagement could be held in the front of the leased premises; On February 18, 1996, a private party was moved from the rear of the leased premises to a client's 1. j. 7 house because of the accumulation of puddles, dampness and leaking of the roof; and n. On February 23, 1996, the restaurant was again forced to close to hold a private party in the front of the leased premises due to the extensive water leaking in the rear of the leased premises. 24. On or about January 11, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, provided written notice to the Plaintiff that, as a result of the severe water problems and Plaintiff's refusal to correct or repair these problems, that the Defendants, Linda M. Ewing and Martha K. Shelly, were terminating the lease dated April 1, 1992. A true and correct copy of the written notice is attached hereto and made a part hereof and marked as Exhibit "A". 25. On or about March 4, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, provided written notice of damages the Defendants suffered as a result of the damage to the property for the month of February, 1996, totaling $8,860.00, and after deducting rent of $3,002.00, the Defendants demanded from Plaintiff $5,B58.00. 26. Despite oral and written notice of the damage to the leased premises, the Plaintiff refused to correct and repair said damage. 27. As a result of the damage to the leased premises, the Defendants, Linda M. Ewing and Martha K. Shelly, were unable to continue to operate either the restaurant or catering business at "~&IoMI."C 8 the premises located at 22 South Hanover Street, and were, therefore, forced to vacate said premises on or about April 1, 1996. 28. On or about April 24, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, by and through the undersigned, confirmed that they had vacated the premises as of April 1, 1996, due to the "several severe problems with the property". A true and correct copy of the letter dated April 24, 1996, is attached hereto and made a part hereof and marked as Exhibit "BO, 29. Plaintiff's cause of action is barred by the doctrine of laches. WHEREFORE, Defendants, Linda M. Ewing and Martha K. Shelly demand judgment in their favor and against Plaintiff, Cochran & Allen, Inc. COUNTERl'T,lUM 30. The answers in Paragraphs 1 through 2l and allegations contained in Paragraphs 22 through 29 are incorporated by reference and made a part hereof as if fully set forth herein. 31. On or about April 1, 1992, Plaintiff, Cochran & Allen, Inc., by and through its president Dennis B. Gotthard, entered into a written lease agreement with Defendants, Linda M. Ewing and Martha K. Shelly, for the premises located at 22 South Hanover Street, Carlisle, Cumberland County, Pennsylvania. A true and correct copy of said lease is attached hereto and made a part hereof and marked as Exhibit "Co. &.~AtMce 9 32. The Defendants, Linda M. Ewing and Martha K. Shelly, operated a restaurant named Miss Garbo's in the front section of the leased premises, and a catering business named Carlisle Catering in the rear of the leased premises. 33. Throughout the term of the lease, the Defendants, Linda M. Ewing and Martha K. Shelly, experienced humerous, ongoing problems with the leased premises to wit: a. In December, 1992, the Defendants, Linda M. Ewing and Martha K. Shelly, reported to the Plaintiff that the roof was leaking; b. In December, 1993, the Defendants, Linda M. Ewing and Martha K. Shelly, again reported to Plaintiff that the roof was leaking; c. In January, 1994, the roof was still leaking and caused extensive damage to the contents, as a result of which the Defendants, Linda M. Ewing and Martha K. Shelly, withheld $800.00 from rent due in January, 1994; d. In January, 1995, the roof continued to leak and Plaintiff attempted to patch the roof to correct the problem; e. On or about December 18, 1995 the roof continued to leak and caused damage for a luncheon scheduled in the rear of the premises; f. On or about January 2, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, informed Plaintiff ..aa.__ ....olWoMa: 10 ~1 ''''&Ie&CC . that the roof was still leaking and demanded that it be repaired. The Defendants, Linda M. Ewing and Martha K. Shelly, withheld one-half (i) of the rent due to the leaking roof and water damage to the rear of the leased premises; g. On or about January 13, 1996, the Def9ndants, Linda M. Ewing and Martha K. Shelly, noticed that the ceiling and back door of the leased premises were both leaking badly. As a result of these leaks, Defendants were forced to remove all of the items from the walls; h. The roof continued to leak throughout the month of January, 1996, and on January 17, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, were forced to close the restaurant in the front of the building in order to move a luncheon that was scheduled for the rear of the premises to the front of the premises; i. Likewise, on January 20, 1996, the restaurant was closed in order to have a banquet in the front of the premises due to the back of the premises being too wet to use; On January 27, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, were forced to cancel a wedding reception scheduled for the back room due to the extensive leaking in the roof, ceiling, j . 11 . back door, and accumulation of water on the floor from said leaks; k. The leased premises continued to leak throughout the month of February, 1996; 1. On February 8, 1996, the restaurant was again forced to close so that a catering engagement could be held in the front of the leased premises; m. On February 18, 1996, a private party was moved from the rear of the leased premises to a client's house because of the accumulation of puddles, dampness and leaking of the roof; and n. On February 23, 1996, the restaurant was again forced to close to hold a private party in the front of the leased premises due to the extensive water leaking in the rear of the leased premises. 34. On or about January l1, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, provided written notice to the Plaintiff that, as a result of the severe water problems and Plaintiff's refusal to correct or repair these problems, that the Defendants, Linda M. Ewing and Martha K. Shelly, were terminating the lease dated April 1, 1992, A true and correct copy of the written notice is attached hereto and made a part hereof and marked as Exhibit "A'. 35. On or about March 4, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, provided written notice of damages the Defendants suffered as a result of the damage to the property I.~ --"',*0: 12 for the month of February, 1996, totaling $8,860.00, and after deducting rent of $3,002.00, the Defendants demanded from Plaintiff $5,858.00. 36. Despite oral and written notice of the damage to the leased premises, the Plaintiff refused to correct and repair said damage. 37. As a result of the damage to the leased premises, the Defendants, Linda M. Ewing and Martha K. Shelly, were unable to continue to operate either the restaurant or catering business at the premises located at 22 South Hanover Street, and were, therefore, forced to vacate said premises on or about April 1, 1996. 38. As a result of the damage to the leased premises, the Defendants, Linda M. Ewing and Martha K. Shelly, suffered damages of loss of business in the amount of at least $5,858.00. Notice of said damages were provided to Plaintiff by Defendants on March 4, 1996. A true and correct copy of the Notice dated March 4, 1996 is attached hereto and made a part hereof and marked as Exhibi t "C". 39. On or about April 24, 1996, the Defendants, Linda M. Ewing and Martha K. Shelly, by and through the undersigned, confirmed that they had vacated the premises as of April l, 1996, due to the "several severe problems with the property". A true and correct copy of the letter dated April 24, 1996, is attached hereto and made a part hereof and marked as Exhibit "B". 40. During the term of the lease, Plaintiff, through its 1.~6IGtL'l: 13 president, Dennis Gotthard, entered the premises located at 22 South Hanover Street without permission of the Defendants, Linda M. Ewing and Martha K. Shelly. 41. Plaintiff's actions in unlawfully entering the leased premises constitute a trespass. 42. plaintiff's actions in unlawfully entering the leased premises were intentional and willful. WHEREFORE, Defendants, Linda M. Ewing and Martha K. Shelly, demand judgment in the sum of $5,858.00 against Plaintiff, Cochran & Allen, Inc., plus punitive damages in an amount in excess of $25,000.00 Respectfully submitted, HANFT & VOHS _~ GU-- William C. Vohs, Esquire Attorney ID No. 65208 11 W. Pomfret Street, Suite 2 Carlisle, PA 17013 (717) 249-5373 "~UGla: 14 r: ! 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Ea::A f./ eWL ..31J1 ~ /1'./'.;)/ tAJ e.- ft a.<4 ,6~ if"""'" '" e<< ~ Wed .,...... -=.""" l> " ,ee.,J ,J ,. -, -) . .. "~ ",(-'-1<-ed. Gel '{ef!'" y.u':= P-y leMfs w~se \j)..aL- Ylt rCLS6. L ( COCHRAN & ALLEN, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. LINDA M. EWING and MARTHA K. SHELLY, Defendants NO. 97- tj. 8':A. CIVIL TERM CONFESSION OF JUDGMENT CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, a copy of which is attached to the Complaint filed in this action, I appear for Defendants and confess judgment in favor of Plaintiff in the principal amount of $26,890. Judgment entered as above, January 29, 1997. wa<1~h~~re Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Defendants t~ .' ( - i .. f'" ('; , , F: L_. (; ... , '-:", ~-~: >. (........J L' , I , ro_ l ,..' , /:' l:- ~. 0--' ~ -1 ~ C'( - >- .. cr, ,,- 1 Qo. ~'" 0 I;;' c;, ::i:<: U.I~-,: ~ , - 0- fr .J ~~ r/ ~ ~i' 0:: . ) :'-~ '.~ ~ r- .' >' 0 Q- (: en .',f) ~ t..:. N ~l --;" ;) 11t 0:11 ' .;:-;; A 1+ :!: 'i(il :1: ...:: J It) 1--' .,J[1. 0-- ~ ~ -,,-~ u, ,.... :.J . 0 Cl' u F l:;< ~~ ll-<en ~~ ~~ ~ll-< ~~ 8~- j::1g ~z :>., O::J I H o u~ t:lu ~ 0 O! He( z o ~~O U UoIH <.en ~ ....en r.:! ...l0\~ ~ H ~ :> . Z Z HOO . u Z H 11-I -11-I Z..-l r.:!~ ~.~ ~ ~p.. ~ u o . > "tl UI J:l -~ 11l~ ~ t!l...l"tl Z~J:l ~en~ '1:1 ':>'- ~~ ~H H ~ Z 3 ~ u fl'. ~ s J i ~ i ! i ! < j ~ :ri ~ u ,~ ..- I, DENNIS B. GOTTHARD, verify that I am the President of COCHRAN & ALLEN, INC., Plaintiff herein, that I make this verification on its behalf being authorized to do so and that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 54904 relating to unsworn falsification to authorities. Date: January 29, 1997 COCHRAN & ALLEN, INC. By: /)~ g. A-II-t tvt--J Dennis B. Gotthard President WAYN1! F. SHADE Aaomcy .. Law SJ Welt PomI'm SIted Culiolt.I'<ooIy".... 170ll .1.... , .;; WAYNIl F. SllADe A\IonIC1 II lAW ,--- CuIiaIc, ......,.Ivula 17013 THIS LEASE, made COMME~L LEASE this I ' day of April, 1992, by and among COCHRAN & ALLEN, INC., a corporatioQ organized and existing under the laws of the Commonwealth of Pennsylvania, with offices at 22 South Hanover Street, Carlisle, Pennsylvania 17013, . hereinafter referenced as "Landlord", AND '. LINDA M. EWING and MARTHA K. SHELLY of 273 South Hanover street, Carlisle, Pennsylvania 17013, hereinafter referenced in the singular .as "Tenant". WITNESSETH: That Landlord hereby demises and leases unto Tenant and Tenant hereby hires and takes as Tenant the portion designated as the first floor and basement situate at 22 South Hanover Street, Carlisle, Pennsylvania, to be' occupied and used only for the purposes of a restaurant and the headquarters for a catering service including off-premises catering, subject to the consent of Landlord as to other uses and upon the following terms and conditions: 1. The term of this Lease shall begin April 1, 1992, and shall end ,at 5:00 o'clock P.M. on March 31, 1997. However, ,this Lease may be terminated by either party upon nine (9) months' notice in writing to the other. In the event that such a termination is requested by Landlord, Landlord shall reimburse Tenant for the costs of the alterations, additions or improvements made by Tenant to the first floor and basement of 22 South Hanover Street. The alterations, additions or improvements .- WAYNl! F, SHAD!! A_"Uw S__Slrcd c.rlido, I'uu>I1IvIllia 17013 reimbursement shall be calculated upon maximum alteration, addition or improvement expenses of Ten Thousand and NO/100 ($10,OOO.00) Dollars. In the event of termination of this Lease prior to April 1, 1993, the reimbursement shall be one hundred (lOOt) percent of the total alteration, addition or improvement costs to a maximum of Ten Thousand and No/100 ($lO,OOO.oO) Dollars. In the event of termination of this Lease between April 1, 1993, and prior to April 1, 1994, the reimbursement shall be eighty (Sot) percent of the total alteration, addition or improvement costs to a maximum'of Eight Thousand and No/100 ($S,OOO.OO) Dollars. In the event of termination of this Lease between April 1, 1994, and prior to April 1, 1995, the reimbursement shall be sixty (60t) percent of the total alteration, addition or improvement'costs to a maximum of Six Thousand and NO/100 ($6,000.00) Dollars. In the event of termination of this Lease between April 1, 1995, and prior to April 1, 1996, the reimbursement shall be forty (40t) percent of the total alteration, addition or improvement costs to a maximum of Four Thousand and NO/100 ($4,000.OO) Dollars. In the event of termination of this Lease between April 1, 1996, and prior to April 1, 1997, the reimbursement shall be twenty (20t) percent of the total alteration, addition or improvement costs to a maximum of Two Thousand and NO/l00 ($2,OOO.OO) Dollars. Although it is provided hereinbelow that all such alterations, additions or improvements shall, at the option of Landlord, be the property of -2- 0" Landlord and shall remain upon and be surrendered with the premises as a part thereof, it is understood that all equipment and interior furnishings which have been provided by Tenant and which can be removed without damage to the premises will remain the property of Tenant and may be removed by Tenant. A list of such removable items of which the parties are aware and are in agreement at the date of execution of this Lease is attached hereto as Exhibit "A" and incorporated herein by reference as though fully set forth. The attachment of this list shall not limit Te~ant to the contents of the list so long as any additional items to be removed by Tenant may be removed without damage to the premises. Although it is the general intention of the parties hereto that, in the event of termination of this Lease by Landlord prior to the expiration thereof, Tenant shall have the opportunity to relocate to the property of Landlord known as Western Village, the number of variables involved render it infeasible to establish a binding option therefor. However, in the event of mutual agreement for such relocation to Western Village and only in the event of relocation to Western Village, Landlord shall reimburse Tenant for moving expenses. The moving expense reimbursement shall be calculated upon a maximum moving expense of Five Thousand and NO/100 ($5,OOO.OO) Dollars. In the event of mutual agreement for such relocation to Western prior to April 1, 1993, the reimbursement shall be one hundred (lOO%) percent of WAYIlI! F. SHADE ^_ at Law 'Soudl__ Carllolo, Fawylv.... 1701] -3- the total moving expenses to a maximum of Five Thousand and NO/100 ($5,OOO.OO) Dollars. In the event of mutual agreement for such relocation to Western village between April 1, 1993, and prior to April 1, 1994, the reimbursement shall be eighty (BOt) percent of the total moving expenses to a maximum of Four Thousand and NO/100 ($4,OOO.OO) Dollars. In the event of mutual agreement for such relocation to Western village between April 1, 1994, and prior to April 1, 1995, the reimbursement shall be sixty (60t) percent of the total moving expenses to a maximum of Three Tho~sand and NO/100 ($3,OOO.OO) Dollars. In the event of mutual agreement for such relocation to Western village between April 1, 1995, and prior to April 1, 1996, the reimbursement shall be forty (40t) percent of the total moving expenses to a maximum of Two Thousand and NO/100 ($2,OOO.OO) Dollars. In the event of mutual agreement for such relocation to Western village between April 1, 1996, and prior to April 1, 1997, the reimbursement shall be twenty (20%) percent of the total moving expenses to a maximum of One Thousand and No/100 ($l,OOO.OO) Dollars. 2. As rent for said premises, Tenant shall pay to Landlord at the execution of this Lease the sum of Two Thousand and NO/100 ($2,000.00) Dollars for the period from April 1, 1992, through April 30, 1992. As further rent for said premises, Tenant shall pay to Landlord at the address set forth above the sum of Two Thousand Nine Hundred Twenty and NO/100 ($2,920.00) Dollars per WAYNP. F, SHADe A_ II Law $--- CarlisIc.I'<oolqIv.... 17013 -4- WAYNB F. SllADe A.....,........ 5__SIrm C&rIWo, ......"Iv.... 17011 month payable on the first business day of each month, in advance and without demand in legal currency of the United states of America. Any rents which are not received by Landlord when due shall carry a late charge of five (5%) percent of the amount of delinquent rent. A check that is returned by the drawee without payment shall be considered to be delinquent, and any costs incurred by Landlord with respect to the returned check shall be collectible from Tenant as additional rent. On May 1, 1994, said rent shall increase to Three Thousand Twenty an~ NO/100 ($3,020.00) Dollars. On May 1, 1995, said rent shall increase to Three Thousand One Hundred Twenty and NO/100 ($3,120.00) Dollars. On May 1, 1996, said rent shall increase to Three Thousand Two Hundred Twenty and No/100 ($3,220.00) Dollars. 3. Landlord shall also provide the following: (a) Real estate taxes; (b) Tenant shall have absolute control and responsibility for all parking spaces along the fence to the west of the Yaro-Gotthard parking lot, the parking spaces immediately adjacent to the building along the west of 22 South Hanover Street and the parking spaces at 134 West Pomfret Street; (c) Tenant and the licensees and invitees of Tenant may use any empty spaces in the Yaro-Gotthard parking lot from 5:00 P.M. through 7:00 A.M. on any day during the term of this Lease; -5- WAYNB F. SllADe A.....,........ 5___ C&rIWo, ......"JvooJa 17011 (d) Tenant may locate one large steel commercial trash container in the fenced-in area immediately to the west of the Yaro-Gotthard parking lot; (e) Tenant may utilize three existing window air conditioners. In the event that the air conditioners should need repair, Tenant may repair them but will have no duty to repair them; and (f) Prior to May 1, 1992, Landlord will repair the sewer access hole in the seed area with concrete and tile and will repair the ceiling leak in the paint room. .4. Tenant shall provide all other services to the leased premises including, without limitation, heat, air conditioning, electricity, water and sewer services, janitorial services and all outside maintenance including mowing, trimming and snow removal. As to snow removal, either Landlord or Tenant may provide snow removal to all parking areas but will have no duty to do so. Tenant shall be responsible for all snow removal required by local ordinance with respect to the property at 22 South Hanover Street. 5. Tenant shall maintain in full force and effect public liability insurance with bodily injury liability limits in an amount of at least One Million and No/100 ($1,000,000.00) Dollars per person, per occurrence and property damage liability insurance in an amount of at least Two Hundred Seventy-Five Thousand and NO/100 ($275,000.00) Dollars for each occurrence, -6- WAYNB F. SllADe A.....,........ 5___ Cu\is'" ......"Iv.... 17011 with said insurance coverages to be in good and reliable insurance companies acceptable to Landlord and to name Landlord and Tenant as the insureds. Landlord reserves the right to approve the agent and carrier from which said insurance shall be obtained, which approval shall not be unreasonably withheld; and if the agent or carrier is not approved, the reasons for disapproval shall be specified in writing by Landlord. Landlord shall be included as an additional insured as the interests of Landlord may appear on all such insurance coverages. Tenant shall provide Landlord at all times with certificates of the required insurance coverages which shall require notification to Landlord of any changes, terminations or cancellations of coverages. Nothing shall be done upon said premises contrary to the conditions of any policies of insurance upon the property whereby the insurance risk may be increased or the insurance may be invalidated. 6. Tenant may utilize the existing signs of Landlord on the building at 22 South Hanover Street. Landlord reserves the right to approve the size, shape and contents of Tenant's bus~ness signs, which approval shall not be unreasonably withheld; and if approval is withheld, the reasons therefor shall be specified in writing by Landlord. 7. A security deposit in the amount of Three Thousand and NO/100 ($3,000.00) Dollars shall be paid by Tenant to Landlord in addition to the rent on May 1, 1992. -7- WAYNB F. SllADe AlIcnlq .. ..... 5__SIrm Carlido,......"Iv.... 17011 8. Tenant shall be considered to be in default under this Lease in the event of any of the following: (a) Failure to make any monthly payment of rent due for a period of thirty (30) days after receipt of written notice of nonpayment of rent. Time shall be of the essence of this Lease with respect to the required payment of rent; (b) Pendency of any bankruptcy or liquidation proceedings against Tenant or pendency of attachment, or eXec~tion against Tenant, 'both for a period of thirty (30) days; or (c) Abandonment of the leased premises. 9. In the event of such default, this Lease may, at the option of Landlord, be forthwith terminated ahd become absolutely void without any right on the part of Tenant, or those Claiming under Tenant, to reinstate the same by payment or other removal of default. In the alternative, at the option of Landlord, all rent for the entire unexpired term of this Lease shall at anceL' become due and payable by Tenant together with costs of suit and reasonable attorney fees actually paid by Landlord to his attorney, billed on an hourly basis at said attorney's Usual hourly rate, hereby waiving the right of exemption and inqUisition. Landlord may then, at the option of Landlord, among other remedies available to Landlord, proceed by any attorney to sign for Tenant or for those Claiming under Tenant an agreement -8- WAYNB F. SllADe AlIcnlq .. Low 5__SIftd C&rIWo, 1'<Iuu7Iv.... 17011 for entering in any competent court an amicable action and confession of judgment in ejectment of any term then past or present against Tenant and all persons claiming under Tenant for the recovery by Landlord of possession of the within premises, without any liability on the part of Landlord or of the said attorney, for which this shall be a sufficient warrant, and in like manner, such attorney may file an agreement for entering in any competent court an amicable action in confession of judgment for all rent and other charges due,' or which may at anytime become d~e under the terms of this Lease or any extension or rene~al thereof, and so on from time to time as often as any of said rent or other charges as aforesaid shall follow or become due or in arrears, without any liability on the part of said Landlord or said attorney and Tenant ,does hereby release Landlord for itself and those claiming under it from all errors and defects whatsoever in entering such actions, judgments or proceedings. No such termination of this Lease or taking or recovering possession of the premises shall deprive Landlord of any remedy or action against Tenant or those claiming under Tenant. It is' further provided that Landlord shall have the right in any subsequent default or defaults to bring one or more amicable actions in the manner and form as hereinbefore set forth and any previous confession of judgment shall not exhaust the authority for the same herein nor deprive Landlord of entering judgment upon any future default. . Acceptance by Landlord of any -9- WAYNB F. SllADe AlIcnlq II ..... 5___ Carlido, I'aloqJvooJa 1701l payments under the terms of this Lease after default by Tenant, or any failure of Landlord to enforce any of the rights herein reserved to Landlord, shall not be considered a waiver of the right to enforce any of the terms of this Lease at anytime; and all of the terms of this Lease may be enforced together or successively at the option of Landlord. 10. If, during the term of this Lease, the building is so damaged by fire or other casualty, not occurring through the negligence of Tenant, so that the building is rendered unfit for occupancy, and the building cannot be repaired within sixty (60) days from the occurrence of such damage, then this Lease shall cease and determine from the date of such damage. In the event that the building is capable of repair within sixty (60) days from the occurrence of such damage and in the'event that such repairs are effected, then a portion of the rent equal to the ratio of the unusable square footage to the total square footage leased shall be abated at the rate of $100.00 per day for each day that any damaged square footage is unusable; provided that, in the event that the damages are sUfficiently severe ~at the premises cannot in any practical way be used as an 'operating restaurant, all of the rent shall be abated until the premises are once again usable as a restaurant. 11. Any notice or demand hereunder shall be sUfficiently given if delivered to the receiving party, personally or by mail, at the office of the receiving party set forth herein. -10- WAYIlI! F. SllADe AlIcnlq II ..... '__SInd Cu1hIo, Paloqlv.... 17011 12. This Lease constitutes the entire agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter of this Lease. 13. This Lease may be amended or modified only by a written instrument signed by both parties. 14. This Lease will be governed by and will be construed in accordance with, the laws of the Commonwealth of Pennsylvania in effect at the date of execution hereof. 15. "It is further agreed 'between the parties hereto, as follows: (a) Tenant shall not make any alterations, additions or improvements to the building or the premises upon which it is erected without Landlord's prior written consent, which consent shall not be unreasonably withheld; and if any proposed "alterations, additions or improvements to the building are disapproved, the reasons therefor shall be stated by Landlord in writing; (b) 'Except as provided hereinabove with "respect to equipment and interior furnishings which have been provided by Tenant and which can be removed without damage to the premises, all alterations, additions or improvements shall, at the option of Landlord, be the property of Landlord and shall remain upon and be surrendered with the premises as a -11- part thereof, at the termination of this Lease without damage thereto; (c) Tenant shall, at the expiration of this Lease, return the leased premises to Landlord in good condition, reasonable and ordinary wear and tear excepted; (d) Tenant shall not assign this Lease br sublease its interest in the subject premises without Landlord's prior written consent; . (e) Tenant shall hold Landlord harmless for any loss or damage which Tenant, its agents, servants or employees may sustain from theft, burglary, interruptions in service or casualty which are not caused by Landlord, its agents; servants'or employees; and (f) Tenant shall not install any new or additional locks upon the subject premises without the express, written approval of Landlord. 16. The provisions of this Lease shall be binding ~pon and inure to the benefit of the parties hereto and their respective. heirs, executors, administrators, successors and such assignees and sublessees as may be permitted hereunder. WAYNB F. SllADe 1......,.11..... 5__SInd C&I1Ialo. Paloqlv.... 17011 -12- ~'1~)"(\W l~T\ SIX k lOtllJ)L C1:lY'i\mmc...:~. sj U ~(f- l.D '\ u' lIXLu 'lX\ R>-tJU k .. "Go.~ ~ ~ . CaG:b /01./ ~c.tu<2. "'1:. "\1.0-'<<\ -tw.,.{~ ~li..C:.0- . ~'<V\YWlM..i.Q.Q a.i~~~;. sk-itl.,s':> gW tt...'o~ o.Jj.Cl.ili~~ J::c..e.. ~ , 4\cxl ~ ~ (~"~~d~\).'^^' -.DOfb~ ~ (c.~ ~ci.c&) ~. c.U.~o...w> (C.O~clCc..rl)/a0rJeS 'Q~ ~ (~'5o) 'Ocu/'\ID~ "\W"Onh lQ~ 5IDx "5lo \'U:bt.l(j o. Dlh t,..'2.0) \.I~UJ ~'\ 6;. OJ ~~oA'S.l~) Q..oOW\. c(,", id..tJt. ~ l'benl"'~ l~O ~ b~~w.X) ~ .l ~VlJ.JJ)' ~ LbO ~\:.) ~ ltbQJU.)lU lOD- <1~J "5~-..I...G.'O'\ ~ _ cJo.'bS\.Oc...M. \-t~(U.L. C_.. t~ ~~~ .uc... I(Ol,)J1c.l oj ~ ~.ooo. ~~ ..d-<:.: OC1ct.'tLoY-o.P:' WUla'\.E ~')Qd ~OYY\ ~ G.l~~ ~QJ)~. (~ \'\.uM..brvQd~ ~) lJ - 161 ~. EXHIBIT "A" . U') .. . , ,. . ( . .. f J 1;- .) U 'J' / ",0. (, ....~ ; I ~j ~ -. ; COCHRAN & ALLEN, INC., . IN THE COURT OF COMMON PLEAS OF . Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA . V. LINDA M. EWING AND MARTHA K. . NO. 97-0482 CIVIL TERM . SHELLY, Defendants CIVIL ACTION - LAW IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S NEW HATTER AND COUNTERCLAIM BEFORE SHEELY. P.J.. OLER. J.' OPINION AND ORDER OF COURT The underlying cause of action in the present case concerns a Confession of Judgment and Complaint filed against defendants on January 29, 1997, for an alleged breach of a commercial lease. On April 16, 1997, the Court heard argument regarding plaintiff's preliminary objections to defendant's Answer with New Matter and Counterclaim. As noted below, we will defer ruling on these objections and therefore need not provide the extensive factual history at this time. PROCEDURAL HISTORY On February 27, 1997, defendants filed a Petition to Open Confessed Judgment, requesting entry of a Rule on plaintiff to show cause why the judgment should not be opened. The order presented to and signed by the Court did not address the taking of depositions. The procedural history at this point becomes somewhat confusing because also on February 27, defendants filed an Answer Oler, J., did not participate in the consideration or disposition of this case. NO. 97-0482 CIVIL TERM with New Matter to plaintiff's Complaint, a copy of which was attached to their Petition to Open Confessed Judgment and request for a Rule. When the Court issued the Rule on March 6, 1997, plaintiff the very next day filed preliminary objections to defendants' Answer with New Matter and Counterclaim. Plaintiff subsequently filed an Answer with New Matter to the petition to open on March 24, 1997, to which defendants filed a Reply on April 1, 1997. Although all of the above filings have occurred, only the preliminary objections of plaintiff are before us. However we decline to address plaintiff's objections for the reason that there has been no determination as to whether the Confession of Judgment should be opened and defendants let into defense. Plaintiff has contended in its brief that defendants' Rule to Show Cause failed to contain a completion date for depositions as required in Pa.R.C.P. No. 206.5 and 206.6. Although defendants did not indicate on their petition that they wished depositions to be scheduled if the Rule were issued, they should not be denied the opportunity to take depositions now.' Plaintiff filed preliminary objections on March 7, 1997, one day after the Rule to Show Cause was issued, which resulted in the filing of the various other documents. Defendants have certainly not waived their chance to take depositions. Additionally, , Defendants in their brief indicate that the preliminary objections are premature because depositions have not taken place nor has there been an evidentiary hearing. 2 J k " ~ ~ , NO. 97-0482 CIVIL TERM depositions will assist the Court in making the proper decision regarding the petition. Accordingly, the Court will deny plaintiff's preliminary objections at this time. After depositions have been taken, the Court will hear Argument to decide whether to open the confessed judgment, keeping in mind that we "need not try the case on the merits in assessing the sufficiency of an equitable petition to open a default judgment." Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 135, 403 A.2d 577, 580 (1979). .1 ORDER OF COURT AND NOW, this ~'day of JULY, 1997, the Court defers ruling on Plaintiff's Preliminary Objections to Defendant's Answer with New Matter and Counterclaim at this time. Depositions shall be scheduled by defendants and completed on or before September l, 1997, unless extended by the Court for cause. The Prothonotary shall list the case for Argument on Wednesday, October 1, 1997, on the Petition to Open Confessed Judgment. Defendants shall be considered the moving party as provided by Rule 210-6 of the Cumberland County Local Rules. By the Court, Wayne F. Shade, Esquire For the Plaintiff William C. Vohs, Esquire For the Plaintiff /s/ Harold E. Sheelv Harold E. Sheely, P.J. Prothonotary :sld 3